Reply to the request for information regarding the Attribution Right Assertion formality
The Association of Photographers Limited (AOP) is a not-for-profit professional trade association founded in 1968. Our aims are:
- To promote and protect the worth, credibility and standing of all photographers and the wider photographic profession
- To enable members to understand and safeguard their rights as authors of creative work
- To encourage the highest standards in creative, technical and commercial practice in the photographic industry at all times
- To defend vigorously and lobby for the best interests of the membership
- To form active links between photographers and those in related creative fields worldwide, and to recognise and respect each other’s objectives and needs
Members of the AOP are professional photographers working in the fields of fashion, advertising, editorial and design. Members have a wide client base including individual clients in the corporate sector, design groups, publishing houses, music publishers and advertising agencies. Their work is published worldwide in magazines, newspapers, books and advertising campaigns and many sell their images as fine art through galleries and their own websites.
We thank you for this opportunity to comment on the requirement to assert the Attribution Right.
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
- 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. If the image is later traced by the creator and the perpetrator taken to court there would be no recompense for the work not being credited as, of course, there would have been no assertion.
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 the discussions being held in the US, EU and UK on possible 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
Executive Director Business & Legal Affairs