Nearly two decades after the dramatic changes of the 1988 Copyright Act, Andrew Gowers’ wide-ranging review into intellectual property in the UK has dashed expectations of further reform, concluding: “I do not think the system is in need of radical overhaul”.

However, among the changes recommended is an introduction of an “orphan works” bill, where copyrighted work can be used without permission if reasonable attempts to find the copyright holder have failed. A similar bill caused controversy in the US until it was shelved several months ago.

While the report explores the whole range of intellectual property, the words “photographer” and “photographers” do not occur at all in the body of Gowers’ 150-page report, which was released on Wednesday.

Nevertheless, the review is expected to be the biggest influence on the working practice of freelance photographers since the 1988 Copyright, Designs and Patents Act, which gave photographers ownership of the copyright of their commissioned work for the first time ever under UK law.

Key recommendations of the Gowers Review

– new powers and duties for Trading Standards to take action against infringement of copyright law
– tougher penalties for online copyright infringement
– lowering the prohibitive costs of copyright litigation through mediation and consulting on the fast-track limit.
– UK Patent Office be restructured as the UK Intellectual Property Office
– A new independent Strategic Advisory Board on IP Policy, to advise the Government
– To ensure the IP legislation only proscribes genuinely illegitimate activity
– Allowing libraries and education establishments access to material for archiving and learning
– The full report can be downloaded here

(PDF format)

Gowers, a former Reuters journalist and Financial Times editor, has not acted upon submissions asking to strengthen creators rights by making them inalienable, to tighten unfair contract law to prevent rights grabbing, and to make an author’s moral rights, (such as the right to a credit) to apply also to newspapers and magazines.

Many submissions to the inquiry had pointed to the increased use of contractual “rights-grabs” by newspaper and magazine groups, which could be prevented once by a combination of new tough legislation against unfair contracts, and by making it impossible for copyright creators to sign their copyright away, as is already the case in some European countries.

The year-long review, published this week, concluded that intellectual property in the UK already is strongly protected by law, but that changes are needed to redress a perceived imbalance between rights-holders and those who may wish to use or develop copyrighted or patented materials.

Gowers has also recommended the strengthening of laws relating to intellectual property, with online copyright infringement now carrying a potential 10 years prison sentence – and lowering the costs of court actions associated with copyright infringement, a move which was cautiously welcomed by the National Union of Journalists.

However, Gowers rejected a detailed proposal from the NUJ to establish a Small Copyright Claims Court, which would have streamlined the process of pursing a copyright action.

Orphan rights

One of the most controversial recommendations by Gowers is the introduction of a right to publish copyrighted work when the original copyright holder cannot be established or contacted.

A similar bill in the US, which would have severely diminished copyright protection by allowing previously illegal reproduction of copyrighted works, was shelved after running out of legislative time this September. However, the bill may still be reintroduced in the next legislative period.

The bill was widely condemned by photographers’ groups, including stock photography giants Corbis and Getty, who hired lobbyists to campaign against its introduction.

Orphaned works are those that are still in copyright, but where the copyright holder is not known or cannot be traced. Under the proposed US legislation, someone who wished to publish the works, and who failed to locate the copyright holder after a “good faith, reasonably diligent search” could do so.

In a written submission to the House of Representatives, the Advertising Photographers of America stated that the proposed bill “has the very real potential to destroy the businesses and livelihoods of thousands of artists, cost thousands of jobs, and result in a massive wave of litigation. In its current form, the amendment is a disaster in the making”

As a safeguard against potential exploitation of the orphan works loophole, Gowers’ report proposes a voluntary copyright registry. However, it is unclear how this would work without either a mandatory right to be identified both in electronic file metadata and on each and every reproduction.

However, the concessions to the Creative Commons lobby are less wide than had been feared, and while the consumer right to make private copies of copyrighted work is extended, it is still – orphan works aside- to be tightly restricted.

“It is alarming,” says the NUJ’s John Toner, “that in proposing private copying be legalised Gowers ignores the principle – and the letter of European Union law – by rejecting any workable scheme for the fair compensation of authors and artists.”

The Gowers Review is only a recommendation, but an influential one. While it still remains to be seen how much of the report makes it into law, and how exactly it will work if it does, it serves as a litmus test as to the current copyright climate. And for freelance photographers working in the UK, the omens are not promising.