As the deadline for submission to the Gowers review of copyright legislation approaches, EPUK expects publishers and corporates to be lobbying hard. We would expect them to argue that freelance ownership of copyright in commissioned works was inhibiting their business opportunities, and competitiveness.

After all, they’ve been stealing and bullying it from us ever since 1988 using unfair contracts and market brute force. It would doubtless be more convenient to get the law on their side instead of against them.

Step forward NUJ activist Chris Wheal, scourge of freelance ‘mini capitalists’ who has yet again taken it upon himself to speak out on behalf of oppressed multinationals and media empires everywhere. This time, to the British Journal of Photography’s 5 April 2006 special report on the future of copyright law.

Morally Bankrupt

Wheal “has told the BJP that as someone who regularly commissions photographers, he feels aggrieved by their insistence on retaining copyright. He explains ‘When I book photographers for jobs, they think it is their right to own the copyright on the images they take for me. I think this is greedy and morally bankrupt. The present system prevents people from being able to use things that they ought to be able to use. The image should be owned by the person who commissioned it’”.

Wheasle words indeed. Photographers don’t ‘think it is their right to own the copyright’, it IS their legal right. Wheal may not like it, but that is how it is, and with very good reasons.

Wheal’s claim that ‘the present system prevents people from being able to use things that they ought to be able to use’ is tautological rubbish. The truth is that the system prevents nothing. All that is required is that the client and photographer negotiate and agree terms. That’s the bit that Wheal finds so distasteful, that the photographer have any say in the matter.

Whealworld

In Whealworld, the client gets to negotiate a price that is independent of all usage. Whether an image appears as a stamp-sized mugshot on a webpage, or is published double page across 72 different publications and used for poster ad campaigns, can make no difference. The photographer is just hired to create an image to belong to the client forever, to do with what they like, so doesn’t even need to know.

If that’s an antidote to what Wheal regards as freelance greed and moral bankruptcy, how much extra would he like to pay? The Association of Photographers recommend between 7x and 10x the base fee as a fair, ballpark figure for the average buyout. Does Wheal imagine clients are falling over themselves to offer such amounts, impeded only by photographers’ determination to shake them down for more? The actuality is that very nearly all clients who demand all rights refuse to pay more than they ever did for a single use. Has Wheal ever rented a camera and suggested that he should own it outright for the same cost? Was the reply printable?

Wheal may not have noticed, but the punter who buys one of the publications he works upon does not acquire copyright for the cost of a single issue. The reader acquires a limited right to use the publisher’s copyright material, not to copy, republish or redistribute it. Does Wheal regard this as ‘greedy and morally bankrupt’, as well?

Not worth a bean

Wheal will no doubt protest ‘but that is different! The publisher has creative ideas, the magazine is his work. A commissioned photographer is just filling in white space to order’.

If this is the case, and in Wheal’s head it appears to be, then photographers are interchangeable suppliers of a simple, artless commodity, like coffee beans. You buy the beans you like at the price the market will stand, and can do whatever you like with them.

Passing over the implied insult that any photographer is just a camera with the cheapest legs possible, Wheal needs to consider how much would a single coffee bean cost if possession of one bean would enable him to reproduce as many as he ever needs.

He could in fact do this. He could plant it in his garden, nurture it into a plant, in a few generations he’d be self-sufficient in coffee. But not having coffee grower skills nor the inclination, he chooses to pay some greedy and morally bankrupt individual for all the beans he wants to use. Not unreasonably, he pays more money for more usage. Maybe he stands in Tesco howling about the injustice of this wicked exploitation of his requirement for coffee, but the choice is obvious : do it yourself, pay the price and shut up, or employ a gardener to do it for you.

The latter is hardly impossible. The 1988 Act is explicit that unless agreed otherwise, employers own the copyright of what their employees create. Employers provide a constant supply of work and a salary, and look after the employee to an extent with sick pay, pensions and paid holidays. And employers own the IPR of what the employee produces in return.

This mechanism exists already for Wheal to have what Wheal wants, he just doesn’t want to have to pay for it. He wants the proprietary rights of an employer without having to assume any of the costs or responsibilities. He wants the freelance to take all the risks; cope with finding work and sod off and cost him nothing when there isn’t any; invest all the time and money necessary to acquire skills and equipment necessary; compete against other freelances to provide competitive prices; and then Wheal takes full title to the freelance’s only saleable asset, their work, as if he’d employed him all along. And we’re greedy?

Wheal’s about face

Wheal’s beliefs are exactly what lays behind copyright grabs, clients who want to avoid the overhead of employing people, yet gain all the benefits and profit for themselves. Most people, let alone NUJ members, would regard that as greed and moral bankruptcy and oppose it, rather than hailing it as the principled and fair way forward. In fact, Wheal himself did, not long ago.

As recently as 1999, Wheal wrote to the London Review of Books:
bq. Those contributors who receive ‘grab all’ copyright contracts, which include phrases such as ‘including any format not yet published, invented or known’ must write back objecting to the terms and refusing permission for their copyright to be abused in this way.
Oh, we do, Chris, we do.

What was ‘abuse’ in 1999 has now transwhealified into a sanctimonious and hypocritical sermon about how unreasonable freelances are to expect to keep copyright. What the hell is going on with this bloke’s logic circuits?

Maybe he’s just being realistic? The aggregation of IPR is a feature of the globalised, corporatised, deregulated, casualised, free-trade melée which we all now inhabit. Wheal doesn’t seem to like this much. In his previous utterances in ‘The Journalist’ he compared freelances to drug and seed companies who bleed the poor into further poverty. An easy mistake to make, perhaps, since both depend on IPR for having something to sell.

Unfair trade

However what is entirely lacking from this budgie view is a distinction between monopolistic power to dictate prices and scrabbling for a living against several times more competitors than there is work for. Individual photographers have about as much hope of dictating pricing as Kenyan bean growers do of holding Sainsburys over a barrel. This is a fact many clients recognise by imposing what they felt like paying in 1985. Others, including some of the largest publishers in the land, go further, rewriting freelance bills to suit themselves. ‘We pay 20p a mile’. ‘We no longer pay digital file preparation and transmission costs’. They expect subsidy from their freelance serfs as well as gratitude.

At least in food retail there is political and public disquiet about abuse of buying power, expressed through a Fair Trade movement. Wheal, on the other hand, bravely pleads that clients should be able to aggregate IPR without the hindrance of photographers’ equity. Wheal is loudly and confidently speaking out on behalf of Unfair Trade, a radical novelty for a trade unionist. But he’ll soon fix that.

If Gowers grants him what he wants, why does he imagine any client anywhere will continue to hire staff? Clearly they can save a mint by sacking the lot of them and using competitive pressure among freelances to lever freelance rates down to as near zero as possible. This casualisation will be the end of the NUJ. With any luck, he’d be able to keep us on a plantation.

The State of the Industry

Wheal’s views undoubtedly reflect the aspirations of publishers across the land, many of whom have spent ever since 1988 attempting to work around, subvert, cheat and generally trample over the provisions of the Copyright Designs and Patents Act. Copyright grabbing contract ‘ultimatums’ have become such a feature of UK publishing that it is hard to find clients who do respect photographers’ equity in their own work.

Mainstream, household-name paragons of national culture and ferocious defenders of their own IPR will insert illegal copyright assignments onto the backs of cheques; into purchase orders that arrive after the job has been done; into contracts that unilaterally and sometimes retrospectively change longstanding working agreements. Pale-grey 4-point subtext has become the industry norm on contracts that proclaim in black and white ‘YOU RETAIN YOUR COPYRIGHT’ only to sneakily snatch back ‘a perpetual, non-revocable royalty-free license throughout the universe in all media including those yet to be invented…’. And quite often indemnify the publisher against all legal costs arising from whatever the publisher does with this work that the photographer has no control over.

If all else fails, they may simply use the work without permission and hope nobody notices and sends a bill. When they do get caught in flagrante, the worst that happens is that they’ll be taken to court and compelled to pay no more than was due anyway. Isn’t that more than enough abusive power to exploit, Mr Wheal?

Robbed blind

For this obdurate selfishness and lack of cooperation with the client’s wish to rob him or her blind, the freelance who protests is generally penalised, as in ‘you’ll never work for us again’ (or, as one large magazine publisher told this writer after I had the temerity to complain about £3,000 of stolen overseas resales ‘you’ll never work in this industry again’). Since nobody in their right mind would wish to attempt to work with such predatory thieving scoundrels anyway, many of us are running out of clients to never work for again, as a consequence.

The underlying idiocy of all this, is that far from being inherently unfair, copyright should provide a natural balancing mechanism that ensures buyers need pay only for the usage that they need, the lowest price possible. Why buy rights they do not need? Mutual equity should work to the advantage of both client and creator, motivating both to mutual success. But such creative partnership sits ill with blind corporate instinct toward monopoly. They want it all, and unconditionally.

We need to remember what copyright is for, why it came into existence in the first place. Only then can we clearly see what has gone so hideously wrong, and why views like Wheal’s and many clients’ are a danger to everybody, including themselves and us.

Those who do not learn from history…

Thomas Macauley gave a couple of brilliant speeches to Parliament in 1841 which set the basis and intent of UK copyright law ever since:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research.

Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn.

It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

We would recognise patronage as employment these days. And we would recognise the following extract as a clear description of what copyright has come to mean in 2006, not because of law, but because of the monopolistic abrogation of law in order to hold the public to ransom:

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions.

Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim’s Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress?

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

Is that not the place where we now are? Copyright has been perverted and devalued from a mechanism of fair reward into a commercial thumbscrew, applied to photographers and public alike in the name of controlling markets and prices and extracting maximum profit. And Macauley is spot on: it has begotten a public contempt for the very idea of copyright, and a widespread enthusiasm for theft of IPR.

Piracy is rife, software, music, photos are all fair game because copyright itself is perceived as a tool of injustice on a global scale. Everybody is at it, from the schoolkid stealing ringtones to global corporations hoping nobody will spot their unauthorised repro’s. There is no merit whatsoever in Wheal’s wish to legalise this degenerate state of affairs, only a vast amount of self-defeating wilful stupidity. We fervently hope that Andrew Gowers has more wisdom.