When the UK Labour government attempted to introduce Orphan Works legislation as part of the Digital Economy Bill in April the result was an embarrassing fiasco. A combination of hectic campaigning by photographers and a spectacular copyright blunder by the government ended in what The Register described as a famous victory for photographers when Clause 43 of the bill was thrown out.

Of course it was always obvious that the defeat of C43 would be a temporary reprieve for photographers. Seven months is a very long time in politics and there are too many commercial interests involved for Orphan Works to disappear so easily; so when Prime Minister David Cameron announced the coalition government’s intellectual property review promising “greater use of copyright material without the owner’s permission” alarm bells began to ring. And proof that it was not a false alarm soon arrived.

On Friday November 12th members of the British Photographic Council were surprised to receive a fax from the British Copyright Council: a draft of new BCC proposals for Orphan Works legislation. The BCC didn’t say why it had sent the draft to the BPC, but given the latter were due to meet on the following Monday, the hope seemed to be that they would rubber-stamp the BCC proposals. Given that some members of the BPC had fought hard against C43, while others – notably the British Association of Picture Libraries and Agents – had endorsed the clause, BCC hopes seemed overly optimistic: the stage appeared set for a stormy BPC meeting.

But there were further surprises in store. The meeting had barely begun when one of the members received a phone call: the BCC had decided not to include photography in their Orphan Works proposals after all. Then it was revealed that Professor Adrian Sterling, Vice-Chair of the BCC, was offering to meet photographers’ organisations for “informal discussions” of the proposals. Why? Because although photography was now not included in the BCC proposals there was the possibility of a second set of proposals specifically aimed at photography.

Given the previous wrangling over C43 most of the BPC members were doubtless relieved not to have to vote on the BCC proposals. But any relief was to be short-lived. For the following day, at the National Union of Journalists Freelance Industrial Council, it was announced that Sterling would not after all have time to meet photographers until next year at the earliest.

That leaves photographers in something of a quandary. The deadline for submission to the BCC regarding their draft proposals is November 29th. Having failed to discuss the proposals – believing that photography would be excluded and that Sterling would meet them to discuss any proposals that would include photography – photographers will now almost certainly miss the opportunity to have any input to the proposals. And there is now the threat of a second set of proposals to include photography, which, according to Sterling, would be based on the first set.

So whatever the BCC’s intentions might have been, the effect of their actions has been to create a situation where Orphan Works proposals regarding photography could be made to the government without any input from photographers whatsoever.

Photographers might want to give the BCC the benefit of the doubt in all this. After all the organisation describes itself as “a body representing those who create, hold interests in or manage rights”: that pretty much defines freelance photographers. But during C43 the BCC showed themselves prepared to hand Orphan Works on a plate to the government’s Intellectual Property Office. And if there is any doubt, the opening paragraph of the BCC proposals makes things abundantly clear:

“These criteria have been agreed by right holders such as publishers and collecting societies, as well as by users”.

That’s right: the actual creators, who the BCC claim to represent, don’t get a look-in. The rules have largely been drawn up by distributors and publishers.

One of the great mysteries of the BCC draft is why it exists at all. The final proposals will form part of submissions to the government’s intellectual property review. That was announced on November 4th, but the metadata in the BCC draft shows a creation date of October 31st: so it would be interesting to know just how long the BCC have been working on the draft.

It would also be interesting to know exactly what prompted them to begin their work. Proponents of Orphan Works legislation like to play the culture card: for instance claiming that current copyright laws prevent museums and galleries displaying work of unknown provenance, and that OW legislation would free them from those shackles. But the fight over Clause 43 exposed many of the true movers and shakers behind Orphan Works legislation, all of them organisations with a stake in the commercial exploitation of such work.

Organisations like the BBC; or, for instance, Google. The Cameron intellectual property review is of course the result of Google whispering in No.10’s ear. It’s not, after all, very difficult for the search engine giant and the coalition government to indulge in a little pillow talk: Google Vice-President Rachel Whetstone is married to Cameron’s Director of Strategy Steve Hilton.

After a week of rumor, confusion, and some behind the scenes rancor, it remains unclear who or what has inspired the new proposals. But one thing is clear: Orphan Works are now back on the UK agenda, courtesy of the British Copyright Council.

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10 Responses to “Look Familiar? UK Orphan Works Are Back”

  1. Dida Dida says:

    What exactly is wrong with the proposals? Or do you oppose any measures to do with orphan photographs as a matter of principle? if yes, why?

    Orphan works solution usually requires diligent search following set criteria for different types of work, which needs to be documented and submitted to Government agencies for approval. The Government agency then grants a non-exclusive license for the use – specifying which work and for what.

    It is not like anybody can just look up a photo on the internet and claim it is orphan because she can’t find a name in the metadata.

    Orphan works schemes are about allowing non-commercial and commercial organisations to use orphan works such as photos from the 2nd world war. Libraries and archives sit on thousands of orphan photos, why not let them use it or allow other to use them.

    Orphan schemes usually have provisions for when the owner returns, and often require the payment into an escrow in return for a licence.

    I understand what your issue was with clause 43, it was not a very good provision and far to open ended. And extended collective licensing is not necessarily the best way to deal with certain types of orphan works, such as old photos. But you appear to oppose anything to do with orphan works on principle.

    It is entirely misleading to use the conservative campaign photo on relation to an article on orphan works. You appear to be implying that an orphan works scheme would have made it legal for the Conservatives to use any odd photo they found somewhere as part of an adaptation. This is not true. Also, the Conservatives have never claimed that the photo they were using was orphan. They just used it without permission.

  2. Pete Jenkins Pete Jenkins says:

    Dida asks ‘What exactly is wrong with the proposals?’

    The basis of Orphan works legislation was put to creators as nothing to worry about because it was simply about certain libraries and academic institutions digitising published works that they already had on file for research purposes etc.. Now myself and many others reassured by this thought no more of it, that seemed reasonable.

    However, now in 2010, orphan Works proposals are less about the digitisation of published works for research purposes, and more about how large commercial concerns can capitalise on the thousands of orphan works created both deliberately and inadvertently every day.

    Were you aware for instance that Newspapers, magazines and some books can legally publish photographs without making any kind of attribution to the original creator – and do, and have been doing so for scores of years.

    Were you aware that these regular creators of orphans are amongst those who wish to utilise orphan works.

    The British Library, the curator of the UK national Newspaper Archive has already set up a commercial deal to digitise all its newspaper collection and no creator is allowed any say, and will get no benefit from the revenue collected form works which frequently do not belong to the newspapers that publish them, as they were originally published under licence and that licence was never covering digitised work.

    http://www.culture24.org.uk/history+&+heritage/literature+&+music/art78971

    And yes many of these images will be out of copyright, but as copyright now extends to 70 years after the creators death, are we seriously going to believe that there will be due diligence paid to the search for the actual copyright holder. The BL have already said that they don’t believe they need to.

    There currently is no definition of a diligent search, and no way of actually doing one. None of the proposals so far have given any reasonable way of doing a search, nor and this is as important have they discussed actually getting the revenue from licensing made by selling so called orphan works to the actual creators. Even if collecting societies were the best way of licensing such created works, which of course they are not.

    The problem with all this is why are big publishers etc., looking to license orphan works? They don’t need to. The only reason to do so is to make money, and it will be made at the specific expense of the creator. If that were not the case then Publishers would not continually try and block the right to be recognised as the author of ones work, as is currently the case in the UK.

  3. Bob Croxford Bob Croxford says:

    ‘Orphan works solution usually requires diligent search following set criteria for different types of work, which needs to be documented and submitted to Government agencies for approval. The Government agency then grants a non-exclusive license for the use – specifying which work and for what.’

    Diligent search has not yet been defined by any Government. I have done a lot of research getting permission to use writers’ extracts. I usually allow at least six weeks, many letters, phone calls and emails. Does the Government think six weeks is too short or too long? How about six months? We just don’t know.

    The late John Fowles, when still alive, would answer post only when he had time and help which was about in six week intervals. I was held up finding an author who last had books published only two years ago and even did a signing in a local bookshop. Neither publishers nor his ex-agent knew his current address. This was not an obscure writer but a prize winning author. Just before my publishing deadline he returned from a six month holiday in Spain. You would think I was in favour of making it easier to publish work under these circumstances. Far from it. I don’t see why a photographer, or writer, should have his/her work stolen just because he/she decides to go on holiday or a year long round-the-world trip.

  4. Just on one narrow aspect of the BCC proposal – in 144B s(8) it says “no licensing scheme certified for the purposes of this section may authorise the grant of a licence in respect of an unpublished work”.

    Does this not rule out the “culture card” you refer to above? The works held by museums and galleries which are of unknown provenance and which OW legislation is intended to free? Photographers never believed that it was a cultural desire to make available old family photo albums, manuscripts and postcards that lay behind the changes proposed. s(8) seems to abandon that excuse.

    Or have I misread the BCC draft?

  5. Jonathan Webb Jonathan Webb says:

    I am an aerial photographer. Helicopters are much more expensive than cameras and therefore aerial photographs cost much more than other photographs. When my exif is deleted and my name cropped off to Orphan my works and I eventually discover the use and claim my Orphan work fee will it be enough to cover the cost of chartering a twin engined helicopter???????

    I have paid for the costs of taking my photographs, why should anybody else be able to use them without paying me first?

  6. “which needs to be documented and submitted to Government agencies for approval.”

    I am sorry but I don’t want the government or its agencies to approve my work for distribution, I have agencies doing this for me already, companies I have chosen to work with myself. Ones that pay me on time & tell me where my work is appearing. All my contact with government agencies in the past 5 to 10 years has left me, most of the time, with a very bad taste in my mouth.

    There is also the problem of licensing. As an example I licence an image for 10 years on an exclusive basis. Someone then comes along, right click saves that image & claims that photo is an orphan, the government approves it & my original client finds out, do you think they will be suing me for non conforming to an exclusive license or the government agency which has just allowed its usage, will the government have adequate funds in place for covering these kind of compensation claims???

  7. [...] questioning the nature of the new UK Orphan Works threat and of those lobbying for such laws only had to read last Thursday’s Guardian for enlightenment. [...]

  8. [...] back, and it is – and there was a good post about it by Jeremy Nicholl on his Russian Photos blog last month.  A few days later The Guardian (who should have known better) published an article by Stephen [...]

  9. Bob Hobbs Bob Hobbs says:

    There is another aspect to all this that is being overlooked by just about everybody. How OWs affects archives, particularly where those archives contain material that has been made available for personal use only by the previous owners.

    Working at the enthusiast end of the market I supply prints to collectors, something that has been going on for the last 70 odd years (by others,not by me!). Of the 300,000+ original negs and txs with IP rights attached, some 80,000 are currently available for sale from my web site – and yet at least one museum says they couldn’t find me so they digitised anyway and started trading my prints. A simple Google search for the registration would have found me.

    If nothing else, this demonstrates the futility of any proposals involving “due diligence”. It just ain’t going to work brother! There are simply too many photographs in existence world wide to make finding that one particular one you are looking for anything more than pure blind chance. The owner could be anywhere on the planet and any nationality.

    I see my aircraft photographs appearing on a Scandinavian government web site because as far as they are concerned I don’t exist – not being Norwegian!

    So how does anybody search for the owner of photo if you don’t know what language the owner’s catalogue might be in? Do we have to start asserting our rights? What about all those amateur photographers and camera-phone users?

    I would suggest that the situation is already out of control and the present review (as far as photographs is concerned) is really about protecting the big boys from litigation from rights holders – nothing else.

  10. [...] so far as Big Media and the IP Review are concerned, the BBC for one has at least two faces. As revealed here last November, the thorny issue of so-called orphan works – defeated by the photographers’ campaign [...]

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