The Association of Photographers’ reply to the Government’s response to Hargreaves

8th August 2011
The Association has waited keenly to hear what the Government has to say in response to the published Hargreaves Review.

The Government’s response is available here:
http://www.ipo.gov.uk/ipresponse.htm

The published Hargreaves Review can be found here:
http://www.ipo.gov.uk/ipreview.htm

The Association of Photographers’ reply

Broadly speaking, the Government has agreed with pretty much all of the recommendations set out by Hargreaves. This embraces some positives but disturbingly, a great many areas which concern us are not addressed.

We have the opportunity to be involved, and are already, at a level of policy-making which can direct the change in the structure of the IP framework over the next few years. We have the opportunity to make our voice heard. Our perspective is set out below;

Firstly, we welcome the Government’s commitment to providing a fast track small claims route for copyright infringement through the County Court system. However, we are concerned to see that the caveat of ‘value for money’ has been attached to this. This crucial reform of the court system must be implemented as soon as possible and the current proposed ceiling of £5000 for claims should be raised to £10,000.

We agree that the proposed limited private copying exception makes sense and would de-criminalise a huge sector of the population without affecting the revenues of those creators. We feel that a carefully drafted exception for parody may be appropriate too but in both cases this must be done in such a way as to not prejudice creators. We note that the Government has said it will consult widely on this (and other points) and insist that creators are involved in that process.

We approve of the proposal that any Digital Copyright Exchange (DCE) would work as an independent marketplace where rights holders can set their own rates and that participation should be free to both creators and users with open standards so that access to such a database can be automated through software solutions. We agree that participation should be voluntary and therefore not in contravention of the Berne Convention. We have a great many concerns regarding any DCE, but as no firm proposals for such a body exist yet, we will wait to hear what the Government has to say by the end of this year as they have stated.

We agree with and welcome the statement that any proposals for the use of orphan works should be subject to satisfactory safeguards to prevent unfair competition from any licensing of such orphans. We agree that any proposals for Extended Collective Licensing (ECL) should be adoptive rather than enforced on any sectors in the industry.

We are very concerned by the proposal that licensing of orphan works could extend to commercial uses, something we, and others, have been against from the start as it undermines the creators’ marketplace and makes a mockery of existing licensing arrangements. We are also alarmed that the Government has made no mention of Moral Rights, which although outside the remit of Hargreaves’ review, are vital to the development of better IP legislation. It is nonsense to talk about licensing orphan works when we still do not have unwaivable Moral Rights, in particular, the right to be identified.

We note that the Government proposes to move forward on the basis of “open and transparent” evidence and are alarmed that whilst they acknowledge that SMEs find it very difficult to provide empirical evidence, there is little suggestion that other ways of engaging with those businesses will be sought.

We are dismayed to see that the Government has not taken the opportunity to provide appropriate education and protection for consumers regarding enforcement, but has placed the burden of such activity on rights-holders and creators. We have little enough time and money as it is to engage in such action.

In conclusion, we accept that there seem to be some areas that the Government wishes to address for the benefit of creators and welcome the opportunity to be involved in discussions around this but we are dismayed that the Government has seemingly missed an opportunity to really strengthen the creative industries in the UK and ensure their survival and future growth.

The Association of Photographers
8th August 2011

For more information please contact Gwen Thomas (gwen@aophoto.co.uk) or Nick Dunmur (nickdunmur@aophoto.co.uk)