© The Future -
Developing a Copyright Agenda for the 21st century

Policy discussion document issued by the Intellectual Property Office with a forward by David Lammy MP

http://www.ipo.gov.uk/pro-types/pro-copy/c-notice/c-notice-2008/c-notice-2008-consultation.htm

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.

We should like to thank the Government for their interest in the creative industry and for seeking our views with this consultation. We are, however, unsure as to why the content of the consultation mirrors previous consultations relating to the Gower review and to which we have already replied. Many of our answers repeat those already supplied and our reply to ‘Taking Forward the Gowers’ Review: Proposed Changes to Copyright Exceptions’ is attached.

Q. Does the current system provide the right balance between commercial certainty and the rights of creators and creative artist? Are creative artists sufficiently rewarded/protected through their existing rights?

In the Visual Arts sector it is not the norm for photographers to assign their rights “in return for a fee or percentage of ongoing profits”.  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 this website and www.copyright4clients.com

Images already in existence will either be licensed through a stock photo library, such as Getty, or by the photographer themselves. Many of these licences are non-exclusive but, as with commissioned work, are negotiated to accommodate the areas required by the client.  Areas where the use of images is impossible to track by the author, eg photocopying, cable re-transmission and educational resources, are licensed collectively by the Copyright Licensing Agency (CLA) and the Design and Artists Copyright Society (DACS), and the licence funds distributed to visual artists by DACS.

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.

We understand that, for clients, commercial certainty in the investment they make in commissioning works is important, and that their contribution to the community is vital. However, this should not be at the expense of the photographers because of the dominant position many areas of the commissioning industries hold. Their investment can be reimbursed by acquiring a licence to use the images without the need for an assignment.

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.

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 credited as the creator of the work and have the right to control how their creation is treated. Once again, the possibility of a waiver puts UK photographers at a disadvantage with their EU colleagues. 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.

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.

Q. Is our current system too complex, in particular in relation to the licensing of rights, rights clearance and copyright exceptions? Does the legal enforcement framework work in the digital age?

Licensing

The AOP does not believe that the current system of licensing in the visual arts sector is too complex. As mentioned above licenses are agreed with commissioning clients to reflect the needs of the client and to enable the photographer benefit financially. Collective Licensing, as mentioned previously, through the CLA and DACS provides licensing for rights which cannot be policed by the individual creator - photocopying; cable re-transmission; educational needs. We also understand that DACS are currently negotiating a Digital Museums Licence, which will enable public museums and galleries to digitise their collections and make them available to their visitors. We believe that the system and relationship that exists between the sister collecting societies cross-border, is a workable one, and gives users access to works and visual creators compensation for use of their work, where the collecting society has been given a mandate to licence. Those visual creators who are not represented by a collecting society, for their primary licensing, are either contactable through their own websites for licensing purposes, or through stock libraries when these are mandated to licence.

The internet has opened the market for photographers, allowing their work to be seen worldwide and commissions 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 has become problematic as illegal use of images is un-policeable. We are concerned that the public believe that any images published on the internet are in the public domain and therefore free to use, adapt and disseminate. This can be clearly seen on blogs and social networking sites, where many professional images are being used. The licensing system doesn’t need to change to prevent this use, and a revised legal enforcement network would not necessarily have the desired effect, but a public awareness campaign of copyright and the internet is urgently required.

Exceptions

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.

Attribution Right, S. 77 CDPA

The attribution right, the right to be identified as the author of a work, is of major importance to photographers, in respect of protecting their works against misappropriation; distributing their works under their name to build up a reputation; achieving remuneration for re-use of their works; and determining the duration of copyright.

This right of attribution is also of importance in respect of the artists’ resale right, implemented into UK law on 14th of February 2006, to ensure the visual artist receives additional remuneration from further sales.

The CDPA requires the right of attribution to be asserted (S. 78) in order to be infringed by the actions listed in S. 77. This requirement is contrary to the understanding of moral rights as well as opening the gate for abuse, which is likely to deprive the author of the benefit the right it 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 it doesn’t exist. Authors who are not aware of this right are not in a position to assert it.

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’.

Right of Integrity S. 80

The right of integrity enables the author of a work to object to derogatory treatment. This right is intended to allow the author to object to treatment of their work that may be prejudicial to their honour or reputation and control how their work is perceived.

This right is usually required to be waived like the attribution right which deprives the author of the benefits the right is intended to secure. This particular moral right is of great importance to visual artists in the digital age. Images are the perfect medium for the Internet and are widely accessible, they can easily be downloaded, copied, altered and mutilated. Should an image be manipulated and distributed, it may not be just the photographer’s integrity that is abused or compromised, if the image contains people they may also be shown in a light which not only reflects badly on them but may cause untold damage to their personal lives.

As mentioned above, the practice of demanding a waiver of moral rights is not subject to regulation under the Unfair Contract Terms Act 1977, where IP is explicitly excluded. In the field of photography, where individuals or micro / small businesses deal with large publishing houses, this creates an imbalance that the majority of AOP members experience as a “sign or don’t work” situation.

Improvements to this field should include the following. Abolishing the CDPA waiver provision; the removal of the need to assert the Attribution Right and to include IP in Unfair Contract Terms legislation as well as bringing UK copyright law in line with the European author’s rights approach, where copyright is seen as an author’s right, a personal right, rather than an economic or property right.

Please see our replies in the attached ‘Taking Forward the Gowers Review’  for further replies with regard to the proposed new exceptions.

Enforcement

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.

We would ask the Government to introduce stronger enforcement provisions with regard to the remedies and damages available to creators and to introduce an alternative enforcement mechanism that enables individuals to challenge the unauthorised use of their works.

Q. Does the current copyright system provide the right incentives to sustain investment and support creativity? Is this true for both creative artists and commercial rights holders? Is this true for physical and online exploitation? Are those who gain value from content paying for it (on fair and reasonable terms)?

The AOP believes 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.

As mentioned previously, 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.

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.

The Gowers Review recommended a format shifting exception, which, if implemented for photographers, given the ease with which images can be downloaded and the number of homes with a computer and printer, would be a further problem. Online galleries sell prints, wedding photographer give access to samples for the bride an groom to choose prints online and on CD’s. For further information about this proposed exception please see the attached.

We would ask again, that the Government implement a robust education campaign.

Q. What action, if any, is needed to address issues related to authentication? In considering the rights of creative artists and other rights holders is there a case for differentiation? If so, how might we avoid introducing a further complication in an already complicated world?

It is cost-prohibitive to expect photographers to have to register individual images to prove authentication, and indeed any organisation to set up and operate such a register, but, more importantly, copyright should remain an automatic right with no formalities required to attain protection which would, of course, be in contravention of the Berne Convention. Strengthening of moral rights is required to ensure works are attributed to the author. As previously stated, the exceptions to the Right of Attribution and the need to assert the right needs to be removed to strengthen this moral right.

Copyright protection is easily obtained, as there is no requirement for registration. The work itself must qualify as an original work, to attract copyright protection, and the author be a qualifying person. 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.

Gwen Thomas
Association of Photographers
gwen@aophoto.co.uk

February 2009