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Gowers Review

11 April 2006 - EPUK

Thirty years ago Mr Justice Whitford established his committee for copyright reform, to bring legislation from a bygone age into the modern world. The result was the Copyright Designs and Patents Act of 1988. Two years later, Photoshop was launched and desktop publishing began to replace paste-up production and hot metal printing.

Back then, nobody had heard of the internet and only geeks knew what modems were. Since then our world has been turned upside down, not only by the digital revolution, but by giant global organisations dominating and destroying the markets in which we photographers struggle to make our profession pay.

There is one constant principle however preserved and enshrined in copyright law that has stood the test of time – protecting the creators of what we now call intellectual property. Ever since the original statute of 1709 every copyright act so far has not only adapted to new technologies – broadcasting in 1956, computers in 1988 – but also extended the protection we authors need to survive.

Desperation

In the 1988 Act we photographers were recognised at last as the owners of the copyright in our commissioned work. This hard-won reform is the solid legal rock upon which almost all photographers working in the UK today base their careers. To all new entrants into the profession it appears as their birthright.

But now, when we are in desperate need for further reform to strengthen and uphold these rights in the face of an unremitting corporate onslaught, for the first time we and all other copyright holders face instead a wave of hostile reaction and an assault on the very principle of copyright itself. Desperation is not too strong word for our current predicament .

The rights we won are being torn away from us by giant corporations and yes, the United Kingdom government itself, in flagrant defiance of the the will of parliament, using its monopoly power as employer to make us sign away under the duress of one-sided contracts what the last Act gave us by law. And this while freelance rates have remained frozen ever since that act was passed – What other profession is locked in the pay of the 1980’s?

Staff photographers have been made redundant only to be re-hired at half the pay and with neither the rights of employees nor those that freelances were intended to enjoy. While Corbis and Getty carve up what remains of the business, swallowing up the few remaining agencies outside their control, they reduce the photographers’ share of sales and aim to replace it altogether with “wholly owned content” . Our work and our lives in their hands.

Cut throat

We are heading towards a nasty cut throat future in which intellectual property is owned not by its creators but by a handful of global conglomerates with the power and the money to turn the law designed to protect us inside out.

The catastrophic changes in our world of photography are as nothing compared to those in the UK economy as a whole. Manufacturing has been destroyed in Britain and largely relocated to the Pacific rim. Even the call centres have vanished to India. There is not much left for our future survival but the City of London, vanishing oil stocks and that ugly phrase “the knowledge-based economy”.

Let us turn to the man now developing a world stranglehold on the production, distribution and control of photography, Mark Getty, grandson of John Paul, for the words to meet the challenge of the times.:

Intellectual property is the oil of the twenty-first century. Look at the richest men a hundred years ago; they all made their money extracting natural resources or moving them around. All today’s richest men have made their money out of intellectual property

Thus spake Mark Getty – enter Gowers.

Intellectual Property is a critical component of our present and future success in the global economy. Our economic competitiveness is increasingly driven by knowledge-based industries, especially in manufacturing, science-based sectors and the creative industries. The IP framework must balance the need to encourage firms and individuals to innovate and invest in new ideas and creative works with the need to ensure that markets remain competitive and that future innovation is not impeded. ( Gowers Review )

So far, so good and a great opportunity, but:

While it has been suggested that the present UK system strikes broadly the right balance between consumers and rights-holders, it also appears that there are a variety of practical issues with the existing framework. ( again, Gowers Review )

Now that is the intellectual property understatement of the decade. In 1988 the battle was between the individuals who create and the corporations who control. Now it is a three-way fight. Today, intellectual property has become a powerful tool to enhance corporate monopoly and consolidate global market power. Opposing this is an unholy alliance of file-sharing thieves, academic idealists and libertarians who see IPR as a synonym for injustice and exploitation. Neither side is mindful of the rights of individual creators in a titanic struggle of principle between corporate globalisation and ‘copyright is theft’ free, open-source everything.

Cross-fire

While anti-globalisation activists are fighting the multinational drug companies, terminator seeds, patented DNA, and demanding free medicine for the sick and the dying, we photographers are caught in the crossfire.

This is not our battle. Nor is it anything to do with the copyright law upon which we depend for a living. It is patent law, a quite distinct branch of IP law, that needs reform here. No deaths in the third world can be laid at our door. We are not the agents of globalisation, we are its victims .

We too want trade that is fair as well as free, in fact we too need our own fair trade campaign – fair trade photography. And when consumer activists attack our ownership of “private” rights in the name of “the public”, it is time to say that we are all members of “the public” too and we have just as much right to earn a living as citizens who get their monthly pay cheque.

It is time to raise the standard for individual intellectual property creators. There are hundreds of thousands of us in Britain alone. It used to be said that small and medium sized businesses were the seed corn of the British economy. We intellectual property creators are now the seed corn of the British economy of the future, the knowledge-based economy and no government can afford to ignore us.

The real battle is not with those consumers who cannot distinguish between us and John Paul Getty or his grandson, but what it always was, the battle between the creators and the rights grabbers. And the real problem with copyright law is not that it it makes us too strong but that it leaves us too weak .

A call to arms

So, what is to be done?

We need a series of measures to restore Fair Trade in the market place, to ensure we producers are paid a fair price and are given sufficient protection both from the market dominance of a few big players in a buyers’ market and from straightforward theft….....In effect, the protection which we were intended to receive in the CPDA 1988 but which has been circumvented ever since it was passed.

  1. We need to radically augment the Anglo-Saxon law concept of copyright as a property right and therefore saleable, with the European idea of authors’ rights, which are inseparable from the author and therefore inalienable. Or in the terms of the CPDA 1988, the assignment of copyright should be prevented. The government should have one eye on future EU harmonisation and make this vital change now.
  2. This would make total rights grabs illegal, but not demands for excessive licences. So then we need protection, as copyright licensors, from unfair contracts imposed by overmighty clients. Procedures must be established for challenging, reviewing and reversing unfair contracts. We need to do business on a level playing field.
  3. We also need protection, as copyright licensors, from theft. There must be effective penal sanctions against breach of copyright. Offenders should not only pay the appropriate licence fee, usually too small to justify litigation, but a penalty that would make it both practical for us to go to law and make obeying the law a cheaper option than infringing our copyright.
  4. To this end we also need effective penal sanctions against stripping photographs of their copyright and contact information.
  5. To the same end the moral rights exclusion from UK law, whereby newspapers and magazines do not have to credit our photographs, must be abolished. The exemption has been too widely abused by publishers and their practical objections to mandatory attribution are superceded by automation. It is trivially simple for software to extract the relevant digital file metadata.
  6. Further registers of rights holders and digital objects (image files, in our case), established by government or independently, would remove any defence of “innocent” copyright infringement.
  7. We do not have to wait for changes in the law for the government to begin to establish a fair and equitable intellectual property regime. Government departments grab our rights and so do their suppliers and the NGO’s they fund. We should call on the government to put its mouth where its money is and introduce, promote and enforce intellectual property best practice.
  8. The government should establish an intellectual property inspectorate to monitor and set standards for the workings of IP law. A small price to pay for guaranteeing the smooth running of what will be at the heart of the UK economy.

Whatever Gowers does will affect every photographer profoundly, probably for the rest of our lives. Please do not make the mistake of thinking there is nothing you can do, or things will be alright regardless. The need here is for collaboration and communication, not something that comes easily to competing freelances, but we have to ensure that Gowers understands our concerns and what we believe needs to be done. The only people who can do that are us, both individually and through pressuring all our representative organisations to act together.

This is what won us the ownership of our rights in 1988. Nothing less will protect them now from assaults on all sides. Seize the time.

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