UK Paves the Way for Orphan Works Law. Will the Sky Fall?

Photographers have not only been “Royally Robbed,” but the British government has violated their human rights, according to a UK group called stop43.org.uk. Photo trade groups in the US, including NPPA, ASMP, PPA, APA and PACA have predicted “a firestorm of international litigation.”

The cause of all the fuss? Changes in UK law that pave the way for regulations under which publishers and others can use orphan works–ie, photographs and other works for which the copyright owner cannot be identified or located–without violating copyright. The changes to the law also enable the British government to establish a central registry and licensing agency for visual works, analagous to the musical licensing agencies ASCAP and BMI.

The changes are part of the so-called Enterprise and Regulatory Reform Act, which provides a framework but few details of how the UK’s orphan works law and copyright registry might work.  The British government is expected to issue detailed regulations this fall. Meanwhile, the government says its intent is to make the licensing of intellectual property more efficient in the digital age, and that it will protect the interests of copyright holders at the same time.

Absent the details about how the law will work, however, photographers and other copyright holders are left to speculate on the actual consequences of the new laws. Reactions among photographers (and their trade groups) range from wariness to outrage.

“I’m not terribly worried at all” about the orphan works provision of the new law, says David Hoffman of Editorial Photographers UK. “It’s annoying there’s so much confusion, hysteria and anger about that.

“I’m much more concerned about [the collective licensing provision]. It takes control away” from photographers over who may license their images, for what purposes, and for how much. “But what control do I have anyway?” Hoffman adds, explaining that thousands of his images are used illegally. He estimates he loses tens of thousands of dollars’ worth of licensing fees each year as a result.

Paul Ellis of stop43.org also dismisses the orphan works part of the legislation as a “red herring.” Users of orphan works are likely to have to show that they searched diligently for the copyright owner of the work, and the government will still collect a fee for the use in case the rights holder ever steps forward. Ellis predicts almost nobody will bother licensing orphaned photographs.

“The system will be costly to use,” once licensing, search and administrative costs are added up, he says. “And if the costs of acquiring orphan works licenses are higher than a normal license fee, you’ve built an incentive to infringe.” (Courts in the UK award little more than a normal license fee for infringement, if an image owner bothers to sue and win, he notes.)

Ellis is far more enraged about the proposed registry, called an extended rights collective. The idea behind that is that the government would set prices for lots of small commercial and editorial uses of images, collect fees for those uses, and disburse the payments to copyright holders, provided they register. Ellis points out that anyone who doesn’t register won’t get paid. And although copyright holders may be able to opt out of the system, it might be a difficult to do that.

“The effect of this will be to drive down prices, and drive value out of creators’ pockets,” Ellis predicts. But there’s a bigger principle at stake, he says. “It utterly breaches the conception that the owners of property have the exclusive right to exploit that property. If you punch a hole in that principle, you’re on very shaky ground.

“Extended collective licensing is an arbitrary deprivation of property. The government is confiscating property,” Ellis says, asserting that it amounts to a human rights violation under international law, which he says guarantees “the right to peaceable enjoyment of your property.”

The major photo trade associations in the US, along with the Graphic Artists Guild, sent a letter last fall to UK officials objecting to the new laws on the grounds that images by US copyright holders would be swept up in the UK licensing system–and used in violation of international treaties as a result.

ASMP executive director Eugene Mopsik, who was one of the letter’s signatories, says of the UK’s new orphan works law: “It’s not the end of the world, but there are significant concerns,” although he adds that it is difficult to predict the effects of rules that haven’t been written yet. He agrees that the issues of orphan works and widespread theft of images online are issues that governments have to address. But he says, “The devil is in the details.”

Mopsik says metadata is easily stripped from digital image files, so under orphan works laws, photographers can easily lose control of their intellectual property through no fault of their own. Their work can be used in ways they find objectionable, and unauthorized uses can undercut their markets–and their income, he says.

But he says ASMP is not opposed to orphan works laws provided that photographers are given certain protections, including the exclusion of any commercial uses under orphan works legislation, requirements that users search diligently enough for copyright holders, and requirements that users post notice of their intent to use an image–so photographers have a chance to learn if their images are about to be classified as orphan works.

How good or bad it the orphan works law ends up being for photographers, Mopsik says, depends upon how lawmakers define terms like commercial use and diligent search.

Jeff Sedlik, co-founder, president and CEO of the PLUS Coalition, is also opposed to collective licensing systems that are opt-out (like the UK system seems to be) rather than opt-in. But he believes it is incumbent upon copyright holders to register their works, in order to prevent those works from becoming orphans because the metadata is inevitably stripped away. But the registry must be centralized–or consist of registries in different countries that are all connected together and searchable at once–in order to effectively protect copyright, he says.

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5 Responses to “UK Paves the Way for Orphan Works Law. Will the Sky Fall?”

  1. Mark Swanson Says:

    remove all photos from external sources and use only links from your own site in future plus watermark everything. never allow access to the original size image only small renderings.
    Go to SmugMug or other service where you can protect against right click to download.
    Time to bite back, now where are all the orphaned photos of politicians caught misbehaving…..sure I downloaded the somewhere…..lol!

  2. Paul Ellis Says:

    Sadly, some factual errors have crept into this piece.

    ‘The changes to the law also enable the British government to establish a central registry and licensing agency for visual works, analagous to the musical licensing agencies ASCAP and BMI.’

    Not so. Nothing in the ERR Act refers to a central registry and licensing agency, although it does refer to an orphan works registry. Separate from legislation, there is an industry-led effort to develop a Copyright Hub, which will link existing registries such as PLUS, agencies, etc. and thereby make finding rights owners easier and cheaper than before, and in this way streamline licensing. Stop43 strongly supports it.

    ‘Ellis is far more enraged about the proposed registry, called an extended rights collective. The idea behind that is that the government would set prices for lots of small commercial and editorial uses of images, collect fees for those uses, and disburse the payments to copyright holders, provided they register. Ellis points out that anyone who doesn’t register won’t get paid. And although copyright holders may be able to opt out of the system, it might be a difficult to do that.’

    This paragraph has ended up rather garbled. There is no ‘extended rights collective’. The ERR Act will empower collecting societies which issue Collective Licenses on behalf of their members to extend them to include works belonging to non-members.

    (Collective licenses are used when it’s impractical for a user to negotiate individual licenses for works used in bulk. The classic example is background music in restaurants. In the UK, the only collective licence for photographs is to enable photocopying of books in public libraries.)

    Because collecting societies will be able to licence works belonging to non-members, those non-members won’t know their works have been licensed, or be paid for their exploitation, and this is bound to include millions of works belonging to non-UK citizens. Sheer weight of numbers will result in millions of US works being licensed under UK ECL.

    Rights owners will be able to opt out, but to do so must first know that they can; know which collecting societies are operating schemes that will affect them; and know what the opt-out process is. It is unrealistic to expect millions of foreign rights owners to know all this.

    The UK government will play no direct part in this and will not set prices for ECL licences. However, a government-appointed agency WILL set prices for orphan works licences. ECL is designed to make licensing simple and cheap for bulk users. Therefore, we expect ECL licence fees to be low, and this, we think, will have a negative effect on industry licence fee levels overall, especially when it comes to claiming damages fro infringement.

  3. Paul Ellis Says:

    I should have mentioned that ‘ECL’ refers to Extended Collective Licensing’, i.e. normal Berne-compliant collective licensing which has been extended to encompass works belonging to creators who have given no mandate and will receive no payment. This form of licensing, implemented in the way envisaged by the UK government, almost certainly breaches the Berne Convention for the protection of copyright works, and other international trade agreements including TRIPS.

  4. Willie Robb Says:

    The root of the problem is metadata stripping. Self promotion is obligatory if you pursuing a commercial career in the graphic arts. One of the easiest ways to get your work circulated is by using social media sites, many of which strip image data as a matter of practice.

    I think The Enterprise and Regulatory Reform Act is missing the point. We need preserve and embed image data in a more solid fashion and stop social media sites stripping metadata.

    It was only a matter of time before this massive issue with the digital age came to light folks. We may as well cross the hurdle now.

  5. Andrew Wiard Says:

    The UK government – or rather, its civil servants in the Intellectual Property Office – deliberately missed the point. They were told repeatedly over the last few years of “consultation” that the way to deal with orphans was to stop them being created. But they repeatedly refused to introduce effective sanctions against metadata stripping. And they refused to give us the right to our names by our pictures.

    The main threat in the ERRA is indeed extended collective licensing. But I don’t agree that the planned commercial licensing of orphan works is a minor problem. Even if the scheme turns out now to be as tightly restricted as the one in Canada, that could well change in future. The British Library wants mass digitisation of orphans, and it’s not going away. Once the principle that our work should not be used without our permission is conceded, all that remains is the practicalities. It’s the same principle that is breached by extended collective licensing. It’s the principle upheld by the Convention of Berne and the TRIPS agreement. In abandoning it the UK government is breaking international law.