Digital Economy Bill – briefing paper for the Lord Puttnam

Page 46, Section 42, 116A Licensing of Orphan Works

We do not believe that such an important issue as Orphan Works can be dealt with by a Statutory Instrument, and respectfully request that 116A be removed from the Bill. We believe that Primary Legislation, which also addresses Moral Rights to prevent the creation of further Orphan Works, is required to ensure that the legitimate rights of creators are strengthened.

The very nature of artistic works make visual works a prime target to become Orphan Works. We are already aware that material available on the internet is seen as being in the public domain by consumers, and that any visual works hosted on websites are fair game and free to use by all. This is evidenced by images being found on a number of social networking and blogging sites, having been lifted from websites without permission. If images are converted from a jpeg or tif to a gif file ALL metadata is lost; copying and pasting will also result in total metadata loss; not all image formats support metadata and there are software programs dedicated to removing all metadata.

Much of the commissioned work likely to become orphaned will be images published in an editorial context. The majority of magazines and newspapers have an online edition and if there is no legal right for the author to be credited, any image that is ‘lifted’ will become detached from the original source and so untraceable back to the author, thereby creating an Orphan Work.

It is essential that steps are taken to ensure the Moral Rights of the author are strengthened to prevent future Orphans.

The following is an extract from the submission we made to the IPO’s request for information on the Attribution Right in September 2009:

The Importance of 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

How it works in practice

Photography is an activity in which anyone can participate. Most households have a camera and so create copyright works and become authors under the CDPA.  Amateurs are unlikely to be aware of the rights they have under the Act and thus would be unaware of this right and not be in a position to assert it. Many professionals who are aware of their rights under the Act do not realise it has to be asserted, nor the form in which assertion is required. Contracts for commissions often ask for a waiver of moral rights and those that don’t, have a clause stating that the author will not assert the right to a credit. If the author is forced to waive this right by contract then the work is in danger of being classed, in the future, as a work of ‘unknown authorship’, or ‘orphan work’.

The internet has widened the market for photographers, allowing their work to be seen globally and commissions to be obtained from countries previously difficult to access. However, because photographic images are the perfect medium for the internet, and are easily copied and distributed worldwide in digital form, publishing work on the internet can be problematic if the work is not credited to the creator. If work is ‘lifted’ any credit is usually automatically removed.

Other Moral Rights issues

In addition to the requirement to assert the right to a credit, exceptions to moral rights are drafted very widely, excluding the application of the attribution and integrity right for a wide range of actions and subject matters. The exclusion of a credit, in particular, for publication in newspapers, magazines and similar periodicals etc., affects the majority of works created by members of the AOP and is a major concern with regard to orphan works legislation.

A waiver of moral rights is un-necessary and is contrary to the understanding of moral rights as well as to the intentions behind the introductions of these rights in the Berne Convention. It is essential that photographers are automatically credited as the creator of the work and have the right to control how their creation is treated.

To bring UK Moral Rights in line with other European author’s rights and to ensure creators are able to protect their work, the following is required:

• removal of the need to assert the Attribution Right
• removal of all exceptions
• removal of the waiver provision

Licensing

It is imperative that creators are not disadvantaged by any exceptions or legislation allowing use of their work without remuneration. We strongly believe that collective licensing is the way forward to ensure orphans are licensed as with any other work.

We understand the need for cultural institutions to preserve images and make them available to view on their websites, this can be done by collective licensing. Cultural institutions, companies or individuals should not be allowed to use Orphan Works for commercial gain.

We firmly believe that the collecting society should be representative of the authors/works they are licensing/collecting for and not an “other person”. Any body of work not already represented by a collecting society, could be licensed by request to the Copyright Tribunal.

The collecting societies are already set up to distribute income received under collective licensing schemes; licence individual works and, in the case of DACS (Design and Artists Collecting Society), the royalties for the Artist Resale Right (ARR).

DACS have successfully distributed collective licence fees for photocopying and cable re-transmission since the 1990’s, and traced visual artists who weren’t their members, to pay them royalties from ARR.

Undistributed licence fees should not be dealt with under Bona Vacantia but used for the good of the sector they were collected on behalf of, for example, copyright education purposes or supporting young creators.

Gwen Thomas
Executive Director Business & Legal Affairs
Association of Photographers

December 2009