7 March 2013

In this photographer-to-photographer round-up of current copyright concerns AOP Board member Nick Dunmur explains how the Association is acting to support and protect its members' work and businesses. This feature first appeared in Image magazine.

No sooner had the Copyright, Designs & Patents Act (CDPA, as amended) of 1988 come into being than the process of others trying to erode those rights seemed to start. The subsequent 25 years has seen unparalleled changes in the way that the public perceives copyright, the value we as creators attach to it and, more recently, the value the government and big business attaches to it. Our rights are under attack as never before.

Copyright is a property right which places the creator at the heart of their work giving them the control over it and this is exactly as it should be. Anyone who argues otherwise has most likely never made anything themselves, has no idea of the creative process and what is involved and certainly does not attempt to make a living from their work. We need to ensure that working as a professional photographer remains a sustainable and viable option for those who wish to. Our clients, indeed anyone who needs or wants photographs making, require a professional industry; we are insured, trained, supported and equipped to deliver what those that pay us expect, within a budget and a time frame. An amateur will simply not work in this way – there is no reason for them to.

Part of what belonging to any trade association is about, is the support that the individual creator receives in the individual battles they may have to fight, but it is important to remember that this support is symbiotic; the association (in this case, the AOP) benefits from all of us as creators being a part of the whole in order that these challenges to our rights can continue to be fought and that we can ensure that a professional industry is the result.

We have seen review upon review and consultation after consultation coming out of government, most of it with a hidden agenda and most of it driven by the large tech giants who see great potential (read ‘commercial’) value in (our) intellectual property. The most recent, the Independent Review of IP & Growth, chaired by Professor Ian Hargreaves and more commonly referred to as the Hargreaves Review, set the wheels in motion for the next round of challenges to our ability to control our own work in full. Part of the fallout from that review, was a feasibility study into the notion of a Digital Copyright Exchange (DCE), mentioned in the Hargreaves Review, but conceived much earlier by others, in particular our own Paul Ellis and Stop43. This study, titled Copyright Works: streamlining copyright for the digital age, produced by Richard Hooper, proposes a robustly constructed mechanism (a copyright ‘hub’) for managing IP rights and licences between rights-holders and users, and if this is done well, this will be what’s commonly known as ‘a good thing’.

What is not so good, however, is yet another piece of legislation currently making its way through the House of Lords (at the time of writing, it is in the Report stage), rather vaguely titled The Enterprise and Regulatory Reform Bill 2012-13 (ERRB), but which contains some pretty insidious and far-reaching clauses, in particular clauses 67 to 69 listed under ‘Part 6 – Miscellaneous’ – yes, these clauses really are in the ‘Miscellaneous’ section – which, in short and in essence, allow for the commercial use of orphan works and the extended collective licensing (ECL) thereof, as well as giving the government the ability to further change copyright law through the use of statutory instruments, the so-called ‘Henry VIII’ clauses (ie., no new bills and therefore nowhere near as much scrutiny or opportunity for challenge). The body charged with developing these statutory instruments will ultimately be the Intellectual Property Office (IPO) as the section of the Department for Business, Innovation & Skills (BIS) responsible for granting IP rights in the UK.

A synopsis of these clauses;

Clause 67 (was 66) – this is the ‘Henry VIII’ clause and allows ministers to make changes to copyright exceptions through secondary legislation. The government maintains that this clause is designed to protect the duration of criminal penalties associated with some types of copyright infringement, which is no bad thing, but the clause is so wide-ranging it is open to massive abuse.

Clause 68 (was 67) – deals with the reduction in the length of the term of copyright. This, the government maintains, is to facilitate digitisation of very old material (in the interests of preservation), but again, the lack of detail renders it dangerous and could result in the confiscation of rights from huge numbers of creators.

Clause 69 (was 68) – this is concerned with easing the restrictions around the use (commercial and cultural) of orphan works and, most worryingly, the introduction of extended collective licensing (ECL) as a concept to drive the government’s misplaced assumption that economic growth can be had by allowing commercial exploitation of others’ creative work, unless they’ve opted out of all the ECL schemes that might abound.

All three clauses are ill-thought out, vague and unclear as well as being potentially very damaging to creators. This is part of where a trade association comes into its own in being able to voice collective opposition on behalf of its members through the relevant channels and to the right people. The AOP has always been active in this but it is recognised that sometimes the full extent of that activity is not always visible.

The AOP, along with Stop43 and others, has been involved in co-ordinating and voicing written objection to the clauses in the ERRB and backed a briefing paper put together by Serena Tierney, head of IP at legal firm, Bircham Dyson Bell, which comprised 70 organisations as signatories to the paper which was presented to those Lords involved in the debate of the ERRB during Committee stages. Through Gwen Thomas, who represents the AOP within Pyramide Europe, the EU-wide body representing groups of photographers and other visual artists, the AOP initiated a letter from all Pyramide members to the UK government, objecting to the clauses as proposed in the ERRB.

As we are a part of the British Photographic Council (BPC), and I am currently chair and Gwen Thomas is vice-chair, we were also able to help secure support for these formal objections from all the other main photographic trade bodies in the UK.

There has also been a Letter Before Claim (a precursor to calling for a full judicial review) presented to Vince Cable and his department (BIS) by the International Media & Archive Consortium (a group including some large names such as The Associated Press, Getty Images, Reuters, British Pathe, The Press Association, and the Federation of Commercial and Audiovisual Libraries) warning of the same major concerns around those particular clauses in the ERRB.

We are also an active part of the newly-formed Copyright Licensing Steering Group (CLSG) which has been set up on the back of Richard Hooper and Dr. Ros Lynch’s feasibility study into the DCE/Copyright hub. The Group was set up to oversee a number of workstreams working towards implementing the primary recommendations made in Richard Hooper's report. Gwen is a Group member and Paul Ellis and I are part of the Metadata workstream. This group’s remit is to oversee the implementation of the primary recommendations made in Richard Hooper’s report which means we have a great opportunity to influence future copyright legislation. It’s worth mentioning that no one from any other photographic trade organisation is involved.

In addition, the AOP is part of the IPO’s working group on determining legislation as/if and when it is required to accommodate the clauses present in the ERRB. At the very least, if those clauses do go through in their current form and there is no judicial review, we still have a foot in the door to be able to represent the professional photography industry’s views.

Lastly, in this round-up of activity, the AOP is a member of the British Copyright Council (BCC) and Gwen is standing for the position of Director representing the Visual Arts. The BCC is a very broad church and has representatives from a huge range of interests, often with conflicting views to those that we, as photographic creators, would hold, so the more presence we can secure in that camp, the better.

Also, meetings were held with the DfE last year, regarding an update to legislation governing the use of child modelling licenses. The current system is cumbersome and lengthy and is proving hard to work with. Photographers are often unable to use the children they want due to different local bodies taking too long to process licences for children. There is currently a Private Members Bill before Pariiament on the back of the Jimmy Savile revelations. However, it doesn't take into account agreements reached at the industry meetings with the DfE and a joint statement to Parliament is being discussed to ensure our discussions do not take a back seat and are included in new legislation.

Most of what has been written about in this article is very recent activity, occurring within the last few months, if not this year. It looks like 2013 will be a very busy year indeed for copyright and legislative rights and all the more reason to be part of a trade organisation, especially one that is involved at the level that the AOP is, and to continue to support campaigns from our other allies such as Stop43. 

Feature © Nick Dunmur February 2013.