SABIP – Strategic Priorities for Copyright

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 practices 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 both traditional and online.

The AOP works closely with the commissioning industry; colleges and universities; is a member of the British Copyright Council and is currently the secretariat for Pyramide Europe, a European Economic Interest Group. We are publishers of Beyond the Lens, an instructive book in copyright and best practice, aimed at photographers, photographic students and commissioners of photography.

Photography and the visual arts often have many different problems (in addition to shared problems) to other genres. Photography is an ideal medium for the digital age as it is easily transported and therefore easily abused. For example, the visual arts community face particular problems should format shifting become an exception, from appropriation of their work on the internet; the definition of  “format change” within the photographic sector means something different and more specific than a transition from one media type to another; and images will always be used as a whole unlike text or music where portions may be used.

We understand that the IPO are to begin investigating UK Moral Rights, but note that this is not an area that SABIP have identified.  We believe that a complete overhaul is needed of UK moral rights, removing the exceptions; removing the need for an assertion of the attribution right; and a change in UK Unfair Contract Terms legislation to include IP contracts and so prevent unfair waivers of moral rights by contract. This is of particular importance with the possible advent of orphan works legislation. A vast amount of images are published electronically and not credited to the author, and these are in danger of becoming orphaned.

Thank you for the opportunity to comment on the scope of SABIP’s work programme. Whilst we understand that the paper is not a formal consultation paper we have made comment under the some of the  headings you have provided in relation to photography in particular.

The Role of Copyright in stimulating creativity and innovation

We believe that copyright in general does promote creativity, which in turn leads to economic growth for the benefit of society as a whole. However, abuse of the current system in the UK tends to benefit larger economic entities and places the author/creator under minimum wage thresholds. This can lead to an inability to pursue a professional career and discourage creators from entering the market. In a European context this is alien to author’s rights legislation, putting the UK creative sector at a disadvantage and discouraging cross-border trading.

Market forces to assign copyright and waive moral rights together with the lack of support in the CDPA and Unfair Contract Terms Act places creators in a weak position and commissioners in a dominant one. This is a barrier to supporting creativity, and many individual photographers do not feel supported by the system.

Ownership & Coverage of Copyright

Photographs are listed explicitly as an artistic work, S. 1 (1) (a), S. 4 (1) (a) CDPA, contains a definition of the term photograph. Additionally, UK legislation does not differentiate between simple photographs and photographic works as the EC Duration Directive provides for. Therefore any photograph, which is not a mere copy, is by law considered to be a copyright work. We do not think this should change, all works whether amateur or professional should be protected equally. If the public were educated to understand that their own photographs were protected, maybe they would understand that professional work has a value, both morally and economically.

Relationship between copyright and contract

In the Visual Arts sector it is not the norm for photographers to assign their rights.  Commissioned work is licensed specifically to the client’s immediate needs with an option for further use as required at an agreed cost. The licence will be exclusive to the client and give them use of the work in specific territories, media and time periods to accommodate their requirements.
Guidance on licensing for photographers and clients is given in our publication Beyond the Lens www.beyond-the-lens.com, on our websites www.the-aop.org and www.copyright4clients.com

However, in some commercial areas photographers are forced to assign their rights in order to get the job. These onerous contracts demand an assignment and waiver of moral rights and do not provide equitable remuneration, nor do they allow for any future payment regardless of how profitable the venture may become. Particularly in the magazine publishing field these contracts govern all future commissions (and occasionally past commissions) and are often presented post-contractually with the veiled threat that payment cannot be made without a signature. Sadly, due to a weak bargaining position many photographers feel forced to sign these contracts in order to make a living and to retain clients in the market sector they work in.

Unlike our European colleagues, UK legislation - the Copyright, Designs and Patents Act 1988 as amended (CDPA)  - treats copyright as a property right therefore allowing for assignments and gives ‘no teeth’ to moral rights thus allowing for waivers. There is no mechanism in the UK to help individual creators fight these contracts via the Copyright Tribunal and the CDPA lacks provisions for equitable remuneration. Additionally the right to assign copyright in equity weakens our position with respect to other countries such as Germany. Unfair Contract terms legislation in the UK does not apply to contracts concerning the creation or transfer of intellectual property rights, we believe that the grant of an exclusive licence or the wholesale transfer of copyright ownership should be balanced by the applicability of the Unfair Contract Terms Act 1977 to IP contracts and by a statutory recognition that compensation should be equitable.

As mentioned above, we are part of a EU network through Pyramide Europe, and through this body have researched and written a book on Unfair Contract Terms. The book examines and explains the meaning of these terms in a number of contracts provided by Pyramide member associations, and quotes the various ways EU countries legislation deals with contract and copyright/authors rights. The book is due to be published in late Summer and will be used as a lobbying tool for harmonization of contract legislation.

Simplification of © framework

AOP members licence their work for physical and online use, however, there is often a presumption, particularly in the editorial world, that publication on the internet is automatically included in the licence they are given. Many other commissioners do not see why they cannot run their licensed analogue campaign online for the same licence fee.

The public, as a general rule, do not believe they need to pay for the use or copying of images. Wedding and portrait photographers make a large part of their income from print sales after the original commission, but many people take their originals prints to high street copy shops for illegal copies or make copies in their home from the CD or web area provided by the photographer.

The CDPA does not provide for punitive damages that can be awarded to make it worth an individual creator challenging an infringement of rights, particularly an infringement on the Internet. Creators are only awarded the amount they could have achieved had their work been licensed. The value of the work is usually more transient than in the other areas of copyright work and licences are not usually expensive. This licence fee is completely disproportionate to the costs of a legal challenge of infringements, particularly now that the small claims court procedure is no longer available for copyright cases. The costs resulting from litigation should be proportionate to the damages. This could either be achieved by a reduction of the costs that mirror the amount of damages or by awarding additional damages, which would have the effect of being a greater deterrent to discourage others from committing acts of infringement.

Attitudes and behaviours in the Digital Economy:
Implications for IP

We believe there is a strong need for a greater investment in the education of IP rights. Education should encompass all sectors from students, creators and users to the general public. It is striking that even in creative-specific education, students are not fully aware of their rights and how to deal with them in business. Many students in media courses at colleges and universities leave with no copyright education. Through lack of knowledge, this future generation are easily abused by unscrupulous commissioners and can undermine all visual creators by accepting low fees and assigning copyright. Effective tutoring to cover aspects of the law that affect them should be made compulsory not only in image-making courses but also in design courses as many will become future commissioners. Our publication Beyond the Lens www.beyond-the-lens.com is part of the course material in the colleges and universities who are affiliated to us, however, we are unable to ensure students in other establishments are made aware of their rights, the book and the website.

Gwen Thomas
Executive Director of Business & Legal Affairs
The Association of Photographers Ltd.
gwen@aophoto.co.uk

May 2009