Digital Economy Bill - Report Stage briefing

General

The AOP remains supportive of the principles behind the Bill and believes it is an important step in carrying forward the Digital Agenda. However, we are still concerned with the far reaching effects of clause 42 and do not believe the amendments put forward by the Government, and accepted by the House, address the problems fully.

We understand that Orphan Works legislation is inevitable, and indeed necessary, to ensure that works which cannot be traced back to their rightful owners can be made available. This availability, however, should only be to allow works in the collections of cultural institutions to be made available to view, thus ensuring that creative works can be enjoyed and our rich history preserved.

We still firmly believe that Moral Rights need to be addressed before, or at the same time as any Orphan Works legislation, in particular the Attribution Right.

The requirement to assert the moral right to attribution is contrary to the understanding of moral rights and is likely to deprive the author of the benefit the right is intended to provide. As a moral right, the right of attribution is a personal right that cannot be assigned. To require its assertion by law is therefore contrary to its nature, it either exists or not. Additionally, the Berne Convention provides that the enjoyment and exercise of the author’s rights shall not be subject to any formality (Article 5.2) – the need to assert the right is a formality.

The attribution right is of major importance to photographers in respect of:

• protecting their work against misappropriation, particularly on the internet
• receiving remuneration for re-use of their works by third parties
• receiving additional remuneration from re-sales under the Artists Resale Right
• preventing their work becoming orphaned
• distributing their works under their name to build their reputation
• loss of commissions from possible new clients unable to contact creators

An informal consultation by the Intellectual Property Office was undertaken in August 2009, and we would ask that Orphan Works legislation for photographers not be introduced before the investigation into Moral Rights is completed.

Specific areas of concern

Section 116A

• The Bill should only allow Orphan Works to be used by cultural institutions for educational and cultural purposes, and not made available for any commercial organization to profit from.
• Only an authorised licensing body, owned or controlled by rights holders of the class of work being licensed and therefore fairly representing them, should be allowed to licence orphan works – not “other bodies” which could allow self-licensing.
• Bona Vacantia is not the right way to treat monies that cannot be distributed to authors, the money would be best used in educating and encouraging young creators.

Section 116B

• Extended Licensing schemes will severely undermine the primary licensing which happens now between photographers and their clients.  Licensing of photography is not “complex and time consuming” and does not need “simplifying”. Exclusive licences are agreed at commissioning stage; photographic libraries license works on behalf of photographers for the specific purpose the client needs. Additionally, there are often contractual rights associated with the image – for example, if models are featured in the image, the photographer and client are under contract as to how the work can be used. Wedding and social photographs are covered by the Moral Right to Privacy, where the image cannot be published without permission of the person who commissioned the work.
• Currently, collecting societies (DACS through the CLA) collectively license for works which are photocopied, this is secondary licensing and an area which cannot be controlled by the rights holder but gives those who need to, or allow others to, photocopy or scan the work, a licence to do so. Monies collected this way are distributed between publishers, authors and visual artists. EVA collectively licence in the educational field.
• To allow primary licensing to be taken out of the hands of the copyright owner, without their explicit permission, undermines the essence of copyright and removes the copyright owner’s exclusive control.  Leaving copyright owners the right to opt–out to secondary legislation is not a sufficient safeguard, the right to opt-in should be enshrined in the primary legislation.
• Extended collective licensing, which allows primary licensing of images without the option to opt-in, is not necessary for photographic or illustrative works.

Section 116C

The registry of Orphan Works creates problems for photographers for a number of reasons:

• Photographers create thousands of individual images, will each image (if presumed orphaned) have to be recreated on this registry and photographers expected to check daily to see if any of their work is shown?
• An online registry of supposed orphan images will create a resource for anyone looking to use images for free.
• A diligent search, not a “reasonable” search, should be mandatory before any creative work is classed as orphaned. This was debated at length, and agreed during the i2010 discussions on orphan works in Brussels.
• There is still no proper definition of an Orphan Work – the one given does not conform to the EU definition from the i2010 High Level Expert Group discussions

February 25, 2010

Contact Information
Gwen Thomas
The Association of Photographers Ltd