Screenshot showing Google’s display of EXIF metadata
Google’s display of EXIF metadata. Photo © Jeremy Nicholl 2011. All Rights Reserved.

Professional photographers have rarely looked kindly on Google. The search engine giant has long been the first port of call for image infringers, and the situation was only made worse by Google’s habit of stripping metadata from images, turning them into orphans.

But over the summer things have changed. In June Google launched Search By Image, and the following month began displaying EXIF data in their image search returns. The latter absolves Google of the orphaning charge, but it’s Search By Image that’s the real game-changer. Google have promoted SBI as a tool for image users to find images they might want to publish, and it could of course be used by such people to track down photo owners so that the image could be properly licensed. But its real value to photographers lies in its ability to track down images that have already been stolen and published on the web.

Previously image searching on Google was a very hit and miss affair. Enter some keywords, and depending what had survived Google’s metadata mangling and any changes by the publisher you might or might not find the published mage: more usually than often not. But with SBI you enter a low-resolution version of the image on Google’s servers and they search the web for matching images: if any are found they appear in the search returns. And since a visual search is more precise and doesn’t rely on matching keywords SBI invariably returns far more results than a keyword search.

Of course SBI isn’t the first reverse image search: TinEye, PicScout and others have been running for several years. But Google’s offering is immensely more powerful simply because they’ve already indexed far more of the web than their rivals. Not that SBI is comprehensive: TinEye for one sometimes finds images that Google doesn’t, so ideally one should use several services when searching for infringements. But all of these searches are time-consuming, and SBI finds so many more images than the competition that if you’re only going to use one reverse image search then SBI has to be it.

All this is very bad news for photo thieves. For years they’ve heisted images with impunity: the chances of being caught were low, and if caught the default defence was “I found it on Google and didn’t know who the owner was”. But that excuse disappears with the now easily viewable metadata, and the chance of being caught has moved from remote to likely, going on inevitable.

Faced with the near-certainty of being caught a smart thief would stop. Unfortunately most image thieves aren’t smart, but dumb and lazy: too lazy to create anything original themselves, and dumb enough to think they can get away with stealing indefinitely. They’re also stuck in the habit of thieving, encouraged by spurious and misleading advice on such nebulous concepts as “fair use”.

So instead of the logical outcome of Google’s changes – contact the photographer for permission or don’t use the image – the actual result is likely to be lots more legal action from photographers. And of course lots more squealing from thieves who get caught.

But that’s their problem. The first reaction of photographers who try SBI is generally fury at learning the previously unknown extent of the theft of their work. That’s hardly surprising, but really we should be pleased to see the tables being turned, albeit slowly.

Orphan work courtesy Professor Ian Hargreaves
“Who has won the copyright wars?” asked Rory Cellan-Jones last week on the eve of publication of the Hargreaves Intellectual Property Review. Judging by the comments on Cellan-Jones’ blog and elsewhere the answer is: “nobody”.

Only a rather hysterical John Naughton in the Observer and freetard shill John Bradwell in the New Scientist gushed with unreserved enthusiasm at the review’s conclusions. Some indication of the depth of Bradwell’s grasp of IP matters is his assertion that within five minutes of the 130 page report being published “Hargreaves had pulled off the impossible: pleasing everyone.”

In fact Hargreaves ended up pleasing not very many people at all. Prime Minister David Cameron, announcing the review last autumn, made plain that he expected it to recommend US-style fair use legislation, but as predicted Hargreaves failed to deliver. Likewise Google, who Cameron’s government had shacked up with, will have been disappointed with the rejection of fair use.

But the most displeased, inevitably, were photographers. As predicted here, and described by the Register as “throwing photographers under a bus”, Hargreaves proposed legislation for the commercial use of so-called orphan works, those whose owners cannot be immediately identified.

If this all sounds familiar that’s because it is. UK OW legislation was first proposed in the Gowers Report of 2005 and subsequently dropped. Then the Labour government tried to slip legislation through in last year’s Digital Economy Act, only to be humiliatingly rebuffed after a series of embarrassing blunders. Now, zombie-like, Hargreaves resuscitates the theme. Apparently the motto of the UK OW lobby is: “if at first you don’t succeed, try, try to steal again”.

The proposal Hargreaves has come up with is the half-bright cousin of US copyright law. In the US there is in reality a two tier copyright system: while all images are copyrighted at the click of the shutter, only those that are subsequently registered with the US Copyright Office receive effective protection through the provision of heavy statutory damages for infringement. Anyone attempting to pursue infringement of an unregistered image can generally only rely on the generosity of the infringer to offer compensation: US lawyers invariably require an image to be registered before they consider handling a case.

Likewise, Hargreaves envisages a two-tier UK system: a Digital Copyright Exchange in which copyright owners could register their images, with all remaining unregistered images regarded as orphans. The difference from the US system would be that the registered images would receive little or no more protection than they do now – there is no suggestion of US-style punitive damages for infringement of registered images; and orphaned images – inevitably the vast majority – could be licensed for a “nominal sum”, probably £1.

The flaw at the heart of this is so glaringly obvious it’s hard to believe that Hargreaves was unable to see it; nonetheless it’s worth spelling out. Many UK professional photographers will register with the DCE in a desperate attempt to protect their copyright; most UK amateurs won’t and will get comprehensively ripped off. But by far the biggest losers will be non-UK photographers, both professional and amateur. The chances of foreign photographers – most of whom will not even be aware of the DCE – registering their work will be essentially zero. Result: the work of all non-UK photographers is automatically orphaned within the UK. It’s not hard to predict the reaction of foreign IP owners to such behaviour.

Perhaps all this should come as no surprise, for Hargreaves’ ignorance of international law in general, and the Berne Copyright  Convention in particular, was cruelly exposed when he tried to defend his report in the comments section of his blog[Irony alert!  Hargreaves’ blog is headed by - you guessed - a genuine metadata-free orphan image of the Professor.] Challenged that his proposals fall foul of Berne, to which the UK is a signatory, Hargreaves fudged and claimed this was not the case. One commentator, Simon Crofts, promptly demolished that defence by quoting the relevant Berne legislation. But then when it comes to discussing photography and the law Crofts has a considerable advantage over Hargreaves, who is neither a photographer nor a lawyer: Crofts is both. Helpfully, Crofts has expanded his comments into a blog piece that will probably come to be regarded as the definitive analysis of Hargreaves’ OW botch.

Ironically, for someone charged with presenting proposals to make digital Britain fit for a wired-up world, Hargreaves has managed to do the opposite with his OW scheme. As it stands the proposal to orphan any image not on the register will turn the UK into an island of state-sponsored copyright theft, and will inevitably invite legal challenges from foreign photographers, most especially those in the US.

It’s far too early to say whether Hargreaves’ scheme will ever get into law, but the chances, fortunately, are not good. “Doomed to fail”, was the verdict of Barlow Robbins technology and media lawyer Brett Farrell in the Daily Telegraph:

“Intellectual property laws are effectively underpinned throughout the world by international treaty arrangements. Well intentioned as it may be, England wanting to set up its own one-stop-shop for collective licensing is simply doomed to fail without the global community buying into it. One only needs to look to the European Union’s attempt to have the music collecting societies set up European-wide licensing and one stop shop licensing bodies. A one-stop-shop for licensing, or digital exchange will not work.”

So we may not yet know who the Hargreaves winners are, but if lawyers like Crofts and Farrell are right it’s clear who the loser is: Hargreaves himself.

Expect great freetard wailing and gnashing of teeth this week with the much-anticipated publication of the Hargreaves Intellectual Property Review in the UK. The review, announced last Autumn by UK Prime Minister David Cameron, was advertised as a way of updating the country’s supposedly stuffy old copyright laws to make them fit for today’s cutting-edge digital era.

Central to the review was the possible introduction of something dear to the hearts of freetards everywhere: a law permitting the so-called fair use of intellectual property. For those unfamiliar with the concept, fair use is a term that in the looking-glass world of Freetardia means the exact opposite of what it means on planet Earth. Down here fair use means what it says: somebody pays a reasonable fee for something and enjoys usage commensurate with the fee. It doesn’t much matter what that something is. A photograph, a restaurant meal or even some Class A drugs: the basic rules of the game are the same, and are constrained by what the seller and buyer agree are reasonable.

But on Freetardia fair use means anyone can take an artist’s product without paying or even informing the artist, and do with it what they will. Health and Safety Advisory: freetards only apply this logic to intellectual property. Even the most diehard freetards caution against leaving restaurants without paying, or heisting the Merc belonging to the drug dealer at the end of your road.

The freetards had high hopes of the IP Review, not least because they have a heavy hitter on their side: Google Vice-President Rachel Whetstone is married to David Cameron’s Director of Strategy Steve Hilton, a fact doubtless unconnected with Cameron’s assertion that Google could never have started their company in Britain due to the lack of fair use legislation.

But as submissions to the review poured in the freetards’ plans began to go awry. For one thing, Britain’s IP laws are more closely related to European IP laws, not those of the US. Then members of the review panel noted that fair use in the US had led to a large amount of litigation. And right on cue those raising this issue were presented with a prime piece of evidence: so-called appropriation artist Richard Prince – known in some circles as the Prince of Thieves for his ability to make millions recycling the work of others and flogging the results to the gullible – suffered a humiliating New York courtroom defeat for plagiarising the work of French photographer Patrick Cariou. And what had Prince’s defence been? Why, fair use of course.

Worst of all, although many UK small and medium size business claimed that the cost of using others’ intellectual property restricted business development, and therefore lobbied for the introduction of fair use, other larger businesses – those in the actual business of intellectual property – made the opposite argument. Publishers and broadcasters, including the BBC, ITV and national newspaper and magazine groups, lined up to make the case summed up by ITV’s Adam Crozier:

“If the government really sees creative Britain as being a growth story, the surest way to pull the rug out from under it would be to weaken the IP rules”

Photographers also made submissions opposing fair use to the review, but in these situations photographers tend to get squeezed between big publishers and end users, and their interests disregarded. But in this instance the interests of photographers and big publishing happened to coincide: in a truly epic irony fail, even the Daily Mail – notorious for their freetard approach to photography – attacked the fair use proposals, describing them as “Google’s latest power grab”.

Now, according to recent leaks in both the Sunday Telegraph and the Independent, fair use provisions have been dropped from the review proposals. So in this case, on the basis of the enemy of my enemy is my friend, photographers have cause to feel grateful to Big Media.

But 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 against Clause 43 of the Digital Economy Bill – is also back on the UK copyright agenda. It now appears that while the Hargreaves review will reject the proposal to introduce fair use legislation, it will recommend the introduction of an orphan works law.

Proponents of OW legislation like to claim that their interest is purely cultural, but the fight over Clause 43 of the DEB exposed many of the true movers and shakers behind OW legislation, all of them organisations with a stake in the commercial exploitation of such work. Prime amongst these movers and shakers was the BBC.

And sure enough, last Friday there was BBC Arts Editor Will Gompertz bigging up orphan works, oddly neglecting to mention that his employers were one of the main proponents of such legislation during the Clause 43 debacle of the DEB. A number of photographers, surely intrigued to see their TV licence fees used to employ someone enthusiastically promoting a scheme potentially detrimental to their livelihoods, dropped by Gompertz’ blog to comment on and correct his many errors and misassumptions.

Gompertz is of course not the first Beeb flack to pimp orphan works while forgetting to mention how the corporation hopes to benefit commercially from OW legislation. In November BBC advisor and former BBC Head of Copyright Stephen Edwards was caught playing the same game in the Guardian.

If Gompertz is right that the review will recommend the introduction of OW legislation, then he is also correct that such a recommendation is bound to reignite last year’s Clause 43 row. In which case we can look forward lots more OW pr fluff disguised as journalism from the likes of Edwards and Gompertz.

What I’m thinking…

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