Mark's Musings

A miscellany of opinions, thoughts, rants and comments

Stop the lies from Stop43

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I blogged yesterday about the “orphan works” section of the Enterprise and Regulatory Reform Act, and explained why I think it’s generally a good thing. Of course, not everyone agrees, and people are free to disagree if they want to. However, there’s disagreeing, and there’s misrepresenting. And some of the opposition to the change goes well beyond the former and into the latter.

Take, for example, this litany of complaints from industry lobby group Stop43. Go and have a read of it now, and see what you think. Then come back here and let me have my say.

OK, read it? Now, let’s take a look at some of what it says.

Normal copyright law as agreed in international copyright treaties, to which the UK is signatory, grants copyright owners ‘the exclusive right of authorizing the reproduction of [their] works, in any manner or form.’ Creators don’t have to apply for this right: it is theirs automatically and without formality. This means that unless it is used under one of the narrowly-defined Fair Dealing exceptions to copyright allowed by these treaties, it is illegal to exploit a copyright work without the permission of its owner.

Actually, it isn’t illegal. Copyright infringement, other than in certain limited circumstances, isn’t a criminal offence. It’s what, in law, is described as a “tort” – a civil wrong.

This may seem a minor point, but since we’re talking about the law here, I think it’s important to start with at least a reasonable grasp of what the law actually is. Anyway, on to the next paragraph:

The EAA Act changes all that. Under its provisions it will be legal to exploit a copyright work – photograph, film, text, song, whatever – without the knowledge or permission of, or payment to, its owner.

This is simply false, on several levels. For a start, the ERR Act doesn’t change “all that”, or even anything near it. It simply changes a very small part of it. But this paragraph is misleading in more ways that. Reading it, you’d get the impression that the government is allowing any copyright work to be exploited without the permission of its owner, even if the owner actually objects to them using it. And that is so far from the truth that I find it hard to believe that it’s simply hyperbole. This is a deliberate lie.

What the ERRA will actually allow is the limited exploitation of “orphan” works – that is, works which are subject to copyright, and therefore cannot normally be used without permission, but where the rights owner is unknown and therefore there is nobody to ask permission of. The vast majority of copyright works are not orphans. Most of those that are, are older material where ownership records have been lost in the mists of time.

Nor does the ERRA make it possible for a user to simply decide that a work is an orphan. It requires them to conduct a “diligent search” for the owner before reaching that conclusion. What that will mean in practice has yet to be decided (that’s the sort of thing which is normally left for case law), but it will almost certainly include checking with the various registries as well as doing a standard Google image search to see if the photo exists on a site which gives enough information about it to contact the owner. The implication of Stop43′s website is that this isn’t the case, and that organisations won’t have to make any effort at all to find the owner. This is simply untrue.

1. ‘…the government said the act made “copyright licensing more efficient”.’

Yes, if by ‘efficient’ you mean ‘no longer having to find, get permission from, and pay property owners before exploiting their property’. For almost any other kind of property, this idea would be outrageous. Imagine if this applied to cars, houses or bank accounts.

It means nothing of the sort. It means that, if you have tried your best to find the owner of a work, but fail, then you can still make some use of it rather than having to simply ignore it.

As it happens, that does also apply to physical property. Suppose you find a watch in the street. What the law requires is that you make a reasonable attempt to find the owner (eg, by handing it in to the police). But, if that fails, you are allowed to keep it. That’s actually more severe than the rights granted by the ERRA, as the right use an orphan work never removes that right from the actual owner. But if you find a watch in the street and the owner can’t be traced within a reasonable time, it’s yours for keeps.

2. ‘They are intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders.’

As we have said earlier, international copyright treaties grant copyright owners ‘the exclusive right of authorizing the reproduction of [their] works, in any manner or form.’ If this is an ‘unnecessary barrier to the legitimate use of works’, quite how are ‘the interests of rights holders’ being preserved by breaking it? The legitimate interests of foreign rights owners are certainly damaged and their rights breached by this Act.

It is true that international copyright treaties grant copyright owners “the exclusive right of authorizing the reproduction of [their] works”. But, on the other hand, the purpose of copyright itself is to benefit the consumer by ensuring that works are created. So if the two goals are in conflict, the latter prevails.

In any case, remember that we’re still talking about works where the owner of the copyright is unknown (I have to keep reminding us of that, because Stop43 want us to forget it). It’s hard to see how they are being harmed, therefore, by their works being used without permission.

Going back to the physical property analogy, I managed to lock myself out my house once, just 24 hours after I’d moved into it! I knew that the back door into the yard was unlocked, but I also had no way of getting to the yard other than by climbing over the wall from the neighbouring property. The problem with that is that it was being renovated, wasn’t occupied, and I had no idea who owned it (since I hadn’t seen them in the 24 hours that I’d been there). Legally, using their property without permission is trespass, just like using a photo without permission is copyright infringement (and, incidentally, trespass and copyright infringement have a lot of similarities in law). But I had no way to ask for permission. So what did I do?

I did what, I think, pretty much anyone in that position would do. I trespassed. I went into their yard and climbed over the wall. If you think that what I did was wrong then maybe you’ll also think that using intellectual property in similar circumstances is also wrong. But I suspect you don’t.

Anyway, back to Stop43:

3. ‘The powers do not remove copyright for photographs or any other works subject to copyright, nor do they allow anyone to use a copyright work without permission and free of charge.’

This is a standard bureaucratic statement which is technically correct but evades the real question and is misleading and inaccurate in its effect. It makes two points:

By “technically correct”, what they really mean is “correct”. And as for evading the question in order to mislead, well. An adage about pots and kettles comes to mind, except that in this case, the kettle still happens to be shiny and new.

a. ‘The powers do not remove copyright for photographs or any other works subject to copyright,’

Correct. We didn’t say they did. However, the powers breach copyright owners’ exclusive right of authorizing the reproduction of [their] works, because it will be legal to exploit the works without their owners’ knowledge, permission, or payment to them. The practical result is that the works are still in copyright but no longer enjoy the protection of copyright. And so, for these works, ‘copyright’ becomes worthless and meaningless.

You didn’t say they did, no. However, you most certainly implied it. But, again, remember that we’re only talking about works where the owners cannot be traced. I think it’s reasonable to argue (as, in fact, it would be argued in the case of physical property) that if the owner of something cannot be found then that should not necessarily prevent the property being used. After all, what benefit does the owner of an orphan work actually get from their copyright? They can’t earn any money from it, as nobody can find them to pay them.

b. ‘ …nor do they allow anyone to use a copyright work without permission and free of charge.’

Whose permission? Not the copyright owner’s. Who will be paid? Not the copyright owner, because by definition for an orphan work he cannot be found. The copyright owner will get no benefit whatsoever from the commercial exploitation of his work; work which was often made with high skill and at considerable difficulty and cost, in order to generate licensing income for its creator.

Yes, it’s true that the copyright owner will probably get no benefit from the exploitation of his work. But then, he wouldn’t have got any from the non-exploitation of it either.

Again, the implication here seems to be that people who would previously have got paid will, under the new legislation, not get paid. This is completely and utterly false. Someone who can’t be found can’t be paid. That is a simple fact, and no law can change that. So the choice isn’t between use with payment and use without payment. It’s between no use and no possibility of payment, or some use and a possibility, however remote, of payment (because the rights owner, if he becomes aware that his work is being used, will still be in a position to approach the user and negotiate a licence fee).

The final clause of that paragraph is also seriously misleading. As I said in my previous post, the reality is that photography is different to the other main “creative” arts in that it is one where humongous quantities of material are produced by people for no other reason than their own pleasure (or vanity). The overwhelming majority of photos are not taken by professionals. And very few contemporary professional photos are in any danger at all of being wrongly treated as orphan works. So to say that these works are “often made with high skill and at considerable difficulty and cost” is, frankly, bollocks. Some of them are, yes. But the ones which are are also those which will be very unlikely to end up orphaned. The vast majority of orphan works will be those created by amateurs or long-dead professionals (who are in no position to lose out anyway).

Some people complain that many orphan works were never made with commerce in mind, and because of that they ought to be free to exploit. This is a nonsense. If a work has sufficient value to make it exploitable, its owner ought to enjoy a fair whack of the proceeds as is his right under international law. If that work becomes newsworthy and of great value to media organisations (or advertising companies masquerading as tech companies and social media) it becomes a ‘lottery winner’. Why should the creator of the winning lottery ticket not collect his prize? He does in other lotteries.

Again, Stop43 fail to mention that, by definition, we are talking about works by people who cannot be found. Sure, it would be nice if they could be located and rewarded for the fact that people want to use their work. But simply wanting it to be so will not make it so. And yes, ideally the owner of a winning lottery ticket will collect their prize. But sometimes they don’t. And nobody would argue that, because the lottery winner can’t be traced, the money should simply be thrown away instead of being used for other things. But that is precisely what is being argued here by Stop43. If the owner of a copyright work can’t be found, and therefore can’t be paid for the right to use it, they would prefer that nobody gets any benefit from it rather than allowing it to be used for the benefit of the public. That kind of dog in the manger attitude is not only selfish and anti-social, it’s also at odds with the fundamental principles of copyright law itself.

Anyway, before we finish with Stop43, here are a few other things worth noting. Go to the home page of their website, and you’re greeted with this:

You think you own your own photographs? NOT FOR LONG.

The Enterprise and Regulatory Reform Act will allow anyone to exploit your photographs without your knowledge, permission, or payment to you.

It should be fairly obvious by now that this is false. It goes beyond false. It’s a deliberate, malicious lie.

While you’re there, though, have a look around the site. Try to find out who owns and runs the site. It’s surprisingly difficult. No names are mentioned, just the fact that the site is run by “a handful of activists“. A lot of organisations are mentioned, but if you read carefully you see that none of them have actually endorsed Stop43. (This “lie by implication” seems to be a bit of a habit of the site’s authors). There are no contact details other than an email address.

It’s difficult, therefore, to find out any more about the background of those behind the site. The domain name, stop43.org.uk, is registered to Editorial Photographers UK Ltd, but apparently this was done as a favour for the organisers several years ago and there’s no direct link between either EPUK or the postal address in the registration data.

Whoever is behind it, though, I find the deliberately deceptive tactics of Stop43 to be particularly unpalatable. Of course, there’s nothing new about this – copyright lobbyists from the music and movie industries have a track record of using misleading language in their attempts to protect their outdated business models, and it’s not really a surprise to find a photography group doing the same. But the reason it matters more here is because, unlike music and movies, nearly all of us are creators of photography as well as consumers of it.

Stop43′s campaign is clearly aimed at persuading the average Instagram user that the government has decided to nationalise all their photos, something which is – if believed – guaranteed to get them up in arms. The fact that this bears virtually no resemblance to reality isn’t going to be spotted by a typical social network user who is probably only dimly aware of copyright at all. So it’s a lot easier to whip up public hysteria over a change to the law which, in reality, will probably benefit amateur photographers (if it has any effect on them at all) rather than harm them. Nor will it hurt those professionals who take photos on commission, or news photographers. The only people who genuinely have anything to lose from the new law are those who make a living creating stock photography, as they will now be competing with a much larger body of freely usable material. But income from stock photography is already on the wane, as EPUK itself handily points out.

Like the music industry, professional photography is affected by technological and societal change. And it’s unrealistic to expect the law to stand still as the digital world revolves around it. The small, selfish minds behind Stop43, though, would like us all to believe that progress is a bad thing. And I think we have to nail that lie.

Edit: I’ve updated this article to remove the whois data for stop43.org.uk, as I now have it on good authority that the registered address has nothing at all to do with the Stop43 as an organisation. Obviously, it’s still out there for those who want to look it up, but as it’s not relevant to my article I don’t want to wrongly give the impression that those associated with the address are anything to do with Stop43.

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  • Pete Jenkins

    Just one thing. Please define a diligent search and how one should go about it?
    Registries? Which Registries – perhaps you could define those too please?

    Thanks

    • MarkSG

      That’s for the courts to define as part of case law. I don’t really have a firm opinion on what it should be.

      • frp4914

        Or, indeed, any knowledge of the photographic industry, its economic model, its applications or its logistics, it would appear. Come on, Mark, you’ve not been shy thus far with your opinions on matters you don’t understand – give us your design template for ‘Registries’, please.

        • MarkSG

          Again, that’s for the regulations and the free market to decide. You’re the one who’s going to be using it, not me – how do you want it to work?

          • frp4914

            I am?
            No, Mark, you are supporting an intellectually flawed proposal. You are suggesting that all reasonable, informed concerns are rendered invalid by a fanciful construct of your own imagination. Unless you can illustrate how the fruits of your imagination can be made real, then that’s really all we have: your dreams.

          • MarkSG

            I’ll take that as an “I haven’t a clue either” answer, then.

          • frp4914

            Please, Mark, read your blog, read my comment, read your reply. That I haven’t a clue of the exact details of your imagined constructs is no surprise. I cannot give you a precise description of something that doesn’t exist or, at least, only you can see.
            Mark: “There’s a giant blancmange in the sky”.
            Me: “No, there’s not”
            Mark: “Tell me what flavour the blancmange is.”
            Me: “There’s no blancmange in the sky.”
            Mark: “You haven’t got a clue what flavour the blancmange is.”
            Me: “There is no blancmange.”
            I’m sorry if I sound rude, but: “I’m right, because I don’t know,” isn’t very persuasive an argument.

          • mr smith

            It was strawberry, how do I know? I looked around and couldn’t see who owned it so I ate it, and no I’m not going to pay for it.

          • MarkSG

            If you actually read the legislation itself (which I doubt many if any, of the people commenting in this thread have done), you will see that it doesn’t give any firm details of what a registry should look like or how it should operate. That’s for the subsequent Statutory Instrument to set out, as and when it’s published.

            When that happens, I’ll look at the legislation and form an opinion on it based on what I read. Maybe it will make sense to me. Or maybe the government will bollocks it up. It wouldn’t be the first time. But, until then, I don’t have an opinion, not least because I’m not a professional photographer and therefore unlikely to use it from that perspective.

            What would be useful, though, would be for those who will be using it to start developing their opinions as to how it should work, and making those suggestions early enough for them to be taken into account.

            Simply whinging about legislation already passed isn’t going to help. The ERR Act is law (or, at least, will be very shortly). Stop43, and the other campaigners against it, have lost that argument. If they want to be constructive, they now need to play a positive role in shaping the legislative and regulatory structures which will stem from it.

          • BrendaM

            Photographers HAVE been constructive and offered plans and models for a Digital Copyright Register which have been under discussion for over a year. It’s a complicated problem
            ** That’s the Point! **
            The ERRBill hasn’t allowed time for this registration and diligent search mechanism to be explored and launched before over riding our existing Copyright Protection (under the Berne Convention) with this ill conceived and sneakily introduced steamroller over all our Intellectual Property rights.

          • Benjamin

            HI Mark,

            I agree and the truth is a lof of photographers are of
            the same opinion. They are being let down by a group who intellectually,
            for whatever reason, unable to make a judgement about where the game
            has got to in relation to this act becoming law and act accordingly.
            They come across as paranoid, intransiant and defensive. Charchteristics
            that aren’t going to help if you are trying to influence policy.

            It
            seems totally lost on them that instead of asking you what a ‘dilligent
            search’ should be (a pointless exercise) they should set out in a well
            reasoned argument what they think it should be. Gather the photo
            comminity behind them and then lobby hard.

            The problem is when
            they say ‘the IPO didn’t listen to us’, no-one is surprised. Because who
            would listen to STOP43 and take them seriously when they are telling
            people the media industry is about to be destroyed without anything to
            back that claim?

            I’m sure they have some good points but it seems to me they’ve blown it because they there is no pragmatism to their approach.

          • frp4914

            “It seems totally lost on them that instead of asking you what a ‘diligent search’ should be (a pointless exercise) they should set out in a well reasoned argument what they think it should be.”
            The reason that a definition for ‘diligent search’ is being requested, is that this is presented as the cornerstone of the ‘orphan works’ methodology, when, self-evidently, it cannot be defined, described, mandated, policed or, least of all, encouraged. It is foolhardy in the extreme to expect a specification from those who understand that it cannot exist.

  • http://twitter.com/mark_cummins Mark Cummins

    This blog seems to be the only sane response to the new law. Almost every other media outlet seems to be running with the end-of-the-world angle.

    However, I think there is a hidden danger in the law which you haven’t written about. The law doesn’t let you use orphan works for free, and only pay a fee if the copyright holder comes forward. You have to make an escrow payment to a copyright agency the UK government will establish. Exactly how this will work is not clear yet, but it could effectively turn the UK government into the worlds biggest stock photography agency, effectively charging a tax on the use of orphan works. Museums and libraries may still find it economically impossible to digitize their collections. Hard to know for sure until the secondary legislation is published. But its a real shame, it could have been such a huge win for the public domain.
    A bit more detail in my post here:
    https://plus.google.com/116986063763387871048/posts/h2x8A7La6Ei

    • MarkSG

      Thanks, it’s nice to find a supportive voice in amongst all the angst. Although it has to be said that I’ve had a lot of support on Twitter and Facebook from a lot of people who really do understand the law.

      • frp4914

        I know where you’re coming from, Mark. My local Police Superintendent told me I shouldn’t take things from other people’s houses without asking. But I went down the Cosh and Knuckleduster, where all the local burglars drink, and they all said: “It’s fine, no problem, go ahead!”
        I believe they know best, ‘cos they tell me what I want to hear.

    • frp4914

      Mark, from your blog:-

      “An orphan work is anything that is under copyright, but the author is unknown. There is a vast ocean of this kind of stuff, and prior to the new legislation is was all effectively in limbo.”

      It seems that this fallacy is at the heart of the misguided assertions of the pro ‘orphan works’ lobby. There is no vast ocean of cultural jewels locked away; the historic works implied are an insignificant drop in the real ocean, and photographers have made many proposals to enable these works to be made available. The overwhelming majority of ‘orphan works’ are works which have been created in the past 50 years, at a rapidly increasing rate as photography has become more prevalent in every field of endeavour, and the so-called ‘orphans’ are being created every day in their thousands, as the identifying data is stripped away and the works are copied and re-copied.

      • http://twitter.com/mark_cummins Mark Cummins

        frp4914 – I certainly don’t want to see creators short changed. If this law is operated properly, it should only serve to unlock those works which are truly orphans , where the creator has essentially abandoned the work. I disagree with you when you say this category is tiny. I think it is gigantic. The number of professional photographers interested in commercial use of their work is dwarfed by amateur photographers who are responsible for large numbers of genuine orphan works. If there Berne convention required copyright to be registered, we would have a more sensible situation for everyone, but alas copyright is automatic so you get a huge set of works which sit there untouchable, providing no benefit to their creator or anyone else. I hope this law can be operated so as to fix this without harming commercial photographers. If you are interested in protecting your work, using a registry seems like a foolproof and easy way to do it.

        • frp4914

          Mark, I applaud the basic principle which you advocate and your concerns that creators shouldn’t be harmed. However, I’m ill-at-ease with this concept of someone ‘abandoning’ their work; I’m afraid I don’t understand it. The creator of a photo, no matter his professional status or otherwise, knows where he has distributed it and keeps his own copy, surely. It is others who will choose to ‘orphan’ it so, if we must have the child analogy, ‘abducted work’ will be better, and the dismantling of the legal deterrent for doing so will only serve as an encouragement.

          I had thought that you were referring to old photos, which provide a valuable record of our history, and for which it is sometimes genuinely impossible to establish the source. It would, indeed, be a good thing if any of these could be made available for cultural enrichment.

          I really can’t, though, embrace the notion that an individual’s photos should, by default, be the property of all, and that he or she should have to take steps to assert ownership. The present system of automatic copyright is, in my view, the only one which could aspire to having any moral substance, however much it may suit others to pretend otherwise. ‘Orphan works’ is clearly a misnomer, and interpretations of its meaning vary, but I cannot see how, in practicality, there can possibly be a gigantic number of ‘genuine’ orphan works. There are a gigantic number of misappropriated works, which some would wish to regard as ‘orphans’, and there may be a small number of ‘genuine orphans’. It really depends on how one defines ‘orphan work’. If it’s a work of which no-one knows the author, perhaps not even the author himself or they’re no longer with us, then that’s an ‘orphan work’, I guess. They are probably relatively few. But if a photo is copied from a website, emailed to all ones contacts, with an instruction to put it on their Facebook page, and mail it to all their contacts, etc, etc, then pretty soon there will be millions of copies of that photo all around the world. The author of the photo won’t know about this distribution, and the recipients won’t be able to establish who the author is. Sure, there can easily be gigantic numbers of those, we could all do it tomorrow, but would they be ‘orphan works’. I think not.

          That pro photographers’ livelihoods (already very tenuous, in most cases) will be taken away is beyond dispute. The market for photos at a price which covers the cost of production and a bit more for food and shelter will collapse if alternatives are available for only a nominal charge. Many will think the photographers deserve no better: if an amateur has taken photos of sufficient quality for the purpose, then one could say that the pro has no right to charge more. But, if one applies that principle in other walks of life: “Sorry, we’re sacking you from the restaurant ‘cos we’ve found someone who likes cooking and will do it for nothing”, for example, there is often a deal of resentment.

  • Simon

    Interesting that you apply a “non-commercial” Creative Commons license to your work.

    Very admirable…now under Extended Collective Licensing (ECL) you can kiss those terms goodbye…your content will join the masses and be used for whatever purposes the user chooses, without the requirement to contact or pay you. Including things you do not agree with. This is of greater concern than orphan works, and the ERR Act enables it.

    Where do you stand on that?

    • MarkSG

      Frankly, I don’t really care. I use the share-alike licence because I want to encourage free redistribution and the sharing economy. But it’s no skin off my nose if someone abuses that licence. It isn’t costing me anything.

      • Simon

        Excellent. You are free to contribute and use your property as share-alike and right now you can treat what you create in a manner of your choosing. And at present, others can choose alternatives. Thing is, the images I create do cost…in ways few would ever imagine…so I choose to charge accordingly, both for legitimate and infringing use. I am not convinced the income I derive (and need) to continue will remain once ECL gets going…Under ECL we all MUST share alike…I must say for a Conservative councillor you seem remarkably liberal with other people’s creative works, and less than ideal ‘small business supportive’ than I would have hoped for from your party. This attitude has cost your party my vote.

        • MarkSG

          You are, of course, free to change your business model if the old one isn’t working any more, just as you are free to choose who to vote for. And yes, I’m proud to be a member of the party which commissioned the Hargreaves Review and promised to implement it.

          • mr smith

            But the photographer licencing images requested and paid for by a client and 3rd party use prevented by copyright law (and IP/moral rights) is a business model that works. Theft legitimised by law means there is no workable business model

          • Simon

            The ‘old’ business model does fine thanks very much…the business is not broken…BTW how have the Hargreaves growth figures turned out?

          • MarkSG

            If the old business model is doing fine, then why do you have a problem with what’s new?

          • frp4914

            It’s aim is to destroy the old business model, and replace it with free aggregation for Google, News Corp, BBC, et al. Not for nothing is the much discredited Hargreaves review known as the ‘Google Review’.
            Do you see why Simon might have a problem now?

          • MarkSG

            I can see why he might have a problem with the fact that the old business model is being made redundant by technology, yes. I don’t see why the law should act to prop up that old business model.

          • SimonC

            The ‘old business’ model of capitalism – private property and free enterprise, is being replaced by a utopian ideal of effective nationalisation of property.

            It all sounded wonderful to the Bolsheviks in the 1920′s – they even attempted to abolish money at some point. The result was economic collapse.

            It is these ideas that are outmoded. The idea that everything should be free on the internet is 10 years out of date. You need to move ahead, see the future, and find ways of helping the internet to be a tool for the effective use of private property. Not make it a no-go zone where no one can post or share their pictures without fear of them being stolen.

            The government are always ten years behind the rest of us.

          • frp4914

            The business model is not being made redundant, but technological advances have made it easier to commit crime which erodes the business model. The logical response to this is to strengthen law enforcement, not roll over and give the thieves the keys.

          • Simon

            The current business model is being altered to suit others who invest nothing in the creative process, time or skill to generate the content they must continue to scrape and repackage. I find it almost ironic to think that many will champion liberated access to images and other works…but who will be the primary beneficiaries of these changes? Individuals who can use images under and ECL granted license or orphan works? Look who lobbied hardest. They will be the recipients of the primary financial benefits will be delivered up to, namely large corporations. I suppose as a conservative, this would suit your political ideology. You have seemed to have overlooked the Hargreaves Review question I posed, so let me help you; currently the economic benefits have been altered downward a little…from billions to just 80 pence per UK citizen per year. Or in other words the approximate cost of one downloaded music track. No wonder you are proud of a party that delivers such growth.

          • SimonC

            “I’m proud to be a member of the party which commissioned the Hargreaves Review and promised to implement it.”

            Simply: more fool you.

      • mr smith

        If you want to carry on sharing something that costs you nothing it’s currently easy to do so and requires no change in the law. What you have failed to do is look beyond that unskinned nose of yours at the views of working people who wish to have a say in how their IP is used.

  • SimonC

    “Actually, it isn’t illegal. Copyright infringement, other than in certain limited circumstances, isn’t a criminal offence. It’s what, in law, is described as a “tort” – a civil wrong”

    The problem is, your whole post is based on a complete misconception – it’s a common, oft-repeated mistake, but completely wrong. Copyright infringement IS a criminal offence in most cases. It is both criminal and civil.

    The relevant offence is S107 (2A) of the Copyright Act which makes it a criminal offence to breach copyright by communicating work to the public, either if you’re a business, or if you’re a private individual (in the latter case only if it materially prejudices the interests of the owner). It applies where they have reason to believe that they are infringing copyright – which will be in almost all cases since copyright is automatic, unless they have good reason to believe that copyright may have expired (70 years from death of author) or been expressiy waived. But basically, copyright infringement, at least where the image is published, eg. on the web, is a criminal offence.

    This criminal offence is commonly referred to as ‘copyright theft’.

  • Phil Barrington

    Say that I’m a member of UKIP and I find your blog header image somewhere on the internet. It has no EXIF details, no watermark and no information attached to it. Great stuff; I download it. I want a nice picture of green England with a stream running down it, and I want to place the words “THIS IS WHAT ENGLAND WOULD BE LIKE WITHOUT THOSE DASTARDLY IMMIGRANTS” on it.

    So, after checking terms such as “river bank stream boat green england” in some image databases, I don’t find you. Great stuff. No need to pay. Jobs a good ‘un. Oh, wait… 6 months down the line you have the luck to spot our now-infamous online “rivers of blood” anti-immigration campaign using your photograph. In fact, we’ve used it as very popular merchandise for our party actually, t-shirts for kneejerk supports in the street and business associates alike.

    You want a slice of the pie? Not on your terms, mate. We’re protected by this Act. You are not.

    You want to SUE us for using the image? I don’t think so mate. We’re protected by the Enterprise and Regulatory Reform Act. You are not.

    You want the last 6 months damage removed from your work and reputation? I don’t think so mate. We don’t have a Delorean.

    • MarkSG

      Oddly enough, my UKIP image has found its way onto Twitter without crediting me. Do I care? No. Why should I? It cost me nothing to make, and the more people who have a good laugh at it the better.

      As for the second point you’re trying to make, the orphan works clause doesn’t remove the right of the owner to negotiate a licence fee for his work if he becomes aware that it is being used. So, in your second example, if I find out that you’re using my image without permission then I can tell you to stop. The orphan works clause doesn’t change that. If the owner of a work makes himself known, then it ceases to be an orphan. From that point on, it”s back in the normal system.

      • mr smith

        “Oddly enough, my UKIP image has found its way onto Twitter without crediting me. Do I care? No. Why should I? It cost me nothing to make, and the more people who have a good laugh at it the better”

        You obviously have no idea of the costs and skills involved in creating high quality imagery. Just because you created a mediocre image of little worth doesn’t mean all images are created that way.

        “As for the second point you’re trying to make, the orphan works clause doesn’t remove the right of the owner to negotiate a licence fee for his work if he becomes aware that it is being used”

        You also have no idea how Proffesional photographers (like the 6 that are working in your town) licence their work, there is often a clause called exclusivity written into their contract with a client that this legislation would render useless and make commissioned new work liable to ‘borrowing’. Clients/photographers don’t want to negotiate with infringers they want to carry out their business without the law legitimising theft.

        • Benjamin

          I run a photo business. Mr Smith is this is what you think then you shouldn’t be in business:

          ‘You also have no idea how Proffesional photographers (like the 6 that
          are working in your town) licence their work, there is often a clause
          called exclusivity written into their contract with a client that this
          legislation would render useless’

          It’s rubbish. There is nothing that precludes exclusive deals in the act.

          You might want to check under your bed.

          • frp4914

            There is nothing that specifically precludes exclusive deals, but much to render them valueless. Those who oppose the introduction of ‘orphan works’ legislation, use their knowledge of the industry, human nature and the practicalities which will be involved. Understanding the issues is rather less simplistic than just counting the words and having absolute blind faith that the nice man with the sweets really is a friend of Daddy’s.

  • Phil Barrington

    “It means that, if you have tried your best to find the owner of a work, but fail, then you can still make some use of it rather than having to simply ignore it.”

    But, as said in other comments here, you use an unquantifiable phrase to back up your view; “you tried your best”. The point is, how is “trying your best” measured objectively, especially when it comes to the might of big business? Because it would need to be. And it’s not down to any image creator to PAY on some system to stop others from stealing their works, only for people to not use that particular system when apparently “trying their best to find you” under all situations.

    “that does also apply to physical property. Suppose you find a watch in the street. What the law requires is that you make a reasonable attempt to find the owner (eg, by handing it in to the police). But, if that fails, you are allowed to keep it. That’s actually more severe than the rights granted by the ERRA”.

    No it’s not. Under the rights granted by the ERRA, you’d be technically able to claim you MADE the watch if it didn’t have an identifiable mark on it, and then to sell “your creation” and duplicate copies of the watch forevermore, making a living from it unless someone challenges you with good proof the watch is theirs. Worst-case scenario, you give them an undefinable sum, agreed by no suggested system that I can see.

    “The purpose of copyright itself is to benefit the consumer by ensuring that works are created”.

    Um, what a load of worrying cobblers. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship.

  • Phil Barrington

    “Going back to the physical property analogy, I managed to lock myself out my house once…”

    I’ve read all of that paragraph and fail to see any relevance. Are you selling another person’s house, that they’ve made from scratch, for commercial gain without giving them anything or even consulting them? No relevance that I can see if not.

    “we’re only talking about works where the owners cannot be traced. I think it’s reasonable to argue (as, in fact, it would be argued in the case of physical property) that if the owner of something cannot be found then that should not necessarily prevent the property being used.”

    I am sorry, but you’ve missed the point completely – again. Your analogy would only work in this instance; I found a house. It seemed abandoned. I looked on a Council website for local landowners with search terms such as “house roof in local area garden”. The owner didn’t come up. So I moved in. Then I made duplicate copies of the house (see how your analogy falls down when compared to digital works?) and sold them all as my own.

  • Bob M

    Mark wrote

    “Nor does the ERRA make it possible for a user to simply decide that a work is an orphan. It requires them to conduct a “diligent search” for the owner before reaching that conclusion”

    He then goes on to make a bunch of assumptions as to what will constitute a diligent search . The reality is that despite years of questioning , the UK government and the IPO have declined to define what they believe a diligent search would be .

    Mark wrote
    ” I think it’s reasonable to argue (as, in fact, it would be argued in the case of physical property) that if the owner of something cannot be found then that should not necessarily prevent the property being used. After all, what benefit does the owner of an orphan work actually get from their copyright? They can’t earn any money from it, as nobody can find them to pay them.”

    and ”

    After all, what benefit does the owner of an orphan work actually get from their copyright? They can’t earn any money from it, as nobody can find them to pay them.”

    This shows just how poorly this article has been researched . I am a professional photographer who relies on the sale of exclusive licences for each commission in order to put food on the table for my family . Because of the nature of my niche market , it is possible for the images to be easily orphaned . With the The Copyright, Designs and Patents Act 1988 , I can police the use of my images and protect my clients interests . With the new legislation , this will not be possible should our esteemed government decide to sell a copy on my behalf , thereby rendering my exclusive licence useless .

    Mark wrote

    “Reading it, you;d get the impression that the government is allowing any copyright work to be exploited without the permission of its owner, ”

    Well that’s because it is the case .

    • MarkSG

      If you reach that conclusion after reading the actual legislation itself (which I presume you have, as to comment on it without reading it would be terminally stupid), then I think you’re simply failing to comprehend the meaning of the words it contains.

      • SimonC

        “as to comment on it without reading it would be terminally stupid”

        So when said that breach of copyright is only a civil matter not a criminal one, you believe yourself to have been terminally stupid? For once, I agree with you. You had clearly not read the Copyright Act.

        • MarkSG

          I’ve read it, and disagree with your conclusions as to what that section actually means.

          • SimonC

            Perhaps that’s because I’m a lawyer and you’re not. However, the meaning of the section is pretty clear, it’s short and there’s little room for ambiguity. I suggest you get someone who understands a little about copyright law to read and explain it to you quietly, before making contentious and ill-informed posts like this one.

          • MarkSG

            So you can point me to some case law which supports your interpretation, then?

          • SimonC

            You have an Act of Parliament to read, which is pretty clear. Which particular bit of it don’t you understand?

          • MarkSG

            As a lawyer, I’m sure you’re aware that you can’t determine how a law is actually enforced in practice simply by reading the legislation. England is a common law jurisdiction, in which case law is as important as statute. So, if the law is being enforced in the way you say it is, there will be cases you can point me to which support that assertion.

          • SimonC

            “I’m sure you’re aware that you can’t determine how a law is actually enforced in practice simply by reading the legislation.”

            As a lawyer, I entirely disagree with that. The whole point of having legislation is that you can tell how it will be applied – as accurately as possible. There are rules of interpretation that allow us to interpret as precisely as possible what a law will mean. Common law/precedent has no power to diverge from the law written in statute. All it can do is interpret at the edges, if an ambiguity arises.

            So the language in the criminal offence is fairly unambiguous – it’s nice and clearly written. You should be able to understand it. There is scope for case law and other law (other statutes to interpret the precise moment for example at which a work is ‘communicated to the public’ – does it include showing it to a room with 5 people in it, or is it only a wider showing to the entire internet, for example). If you have a question about the details, it may be possible to dig out case law that explains them. Let me know what your question is.

            But the meaning of the law is clear: it means what it says. Nothing less and nothing more.

          • simoncworksforthe IPO

            Yeah Mark, Simon is a lawyer don’t you know, and they never get things wrong, So again like Simon I think you should just be quiet because plurality of opinion when discussing policy is a really bad thing, and most people are stupid so they won’t be able to balance out the merits of what you say. That’s why we need people like Simon and only Simon to speak up and save us from photogeddon.

  • martin B

    Even a 5 year old knows its wrong to take property that doesnt belong to them.

    This is not a hard concept to grasp so can you explain to me, in basic terms, why you think it would be acceptable for a commercial entity to ‘find’ an image online and be able to use it, for profit, without the owners consent please.

    I’m all ears….

    • MarkSG

      Oh dear, you aren’t one of those “copyright infringement is theft” nutters, are you?

      • Martin B

        Is this genuinely the level of your intellect? you are clearly incapable of grasping the basic principles of right and wrong yet you aspire to public office?

        God help us.

      • Paul D

        And there we have it MarK showing your true colours. Once someone who knows what they are talking about nails you bang to rights as WRONG, which you are, you drop into childish insult mode… Simon C – Quotes you THE LAW where it says how and why copyright infringement IS a CRIMINAL OFFENCE,
        Martin B-backs him up on moral grounds pointing taking other peoples intellectual property is morally wrong as well as Legally wrong. Your half thought out misinformed argument is blown clean out of the water and what massive intellectual responce do you have left…

        “Oh dear, you aren’t one of those “copyright infringement is theft” nutters, are you?”
        Showing you up to be exactly what you are Ill informed, moraly bankrupt Freetard!

        • MarkSG

          I was wondering how long it would be before someone used the word “freetard”.

      • JezzaBill

        The only difference between IP property and goods in the shops is we don’t have proper security. THAT is the issue.

  • Ralph Kubarov

    You write “industry lobby group Stop43″. That is how they represent themselves but they consist of one (non photographer) activist, a half dozen supporters and a domain name donated to them by EPUK when the Digital Economy Act was going through parliament. They only represent themselves – which they do very loudly. You’ll find little industry support for them. The nearest thing to a real industry lobby group is the British Photographic Council who have been silent on the ERRA.

    • MarkSG

      Yes, you’re probably right on that. Certainly, the opposition to the legislation seems to be coming mainly from a small but vocal group of activists rather than those with a real understanding of the issues. As the comments here illustrate :-)

      • frp4914

        Unfortunately for you, Mark, that wish of yours is not supported by the evidence. I recommend you have a perusal through Hansard at Stop43′s contribution during the DEA debates in 2010. Those MPs who voted against Clause 43 were in no doubt of their understanding of the issues.

      • http://twitter.com/orpen_m Martin Orpen

        So let me get this right — your “real understanding of these issues” is more real than that of a professional who earns their living from creating images?

        • SimonC

          It does demonstrate a certain breathtaking level of arrogance on Mark part, doesn’t it?

      • Simon

        Why not have a read of this:-

        http://www.bjp-online.com/british-journal-of-photography/news/2235856/photography-industry-shows-mass-opposition-to-government-copyright-changes/page/2

        And then ask yourself if there is a minority. And if there is a minority, which side would we err upon when it came to attribtion

    • Bob M

      Ralph Kubarov obviously either knows nothing about Stop43 or is being deliberately disingenuous . You’ll find huge industry support from those that truly understand the implications of the bill .
      The ones that stand to gain most from this UK legislation are those that put the least back in to UK society … the large corporations who want cheap or free content but pay no UK tax .
      Has it not crossed Mark SG’s radar that a purpose of this legislation is to make commercial gain from orphaned works .
      Professional photographers as a whole support the use of orphaned works for cultural non commercial use , which was the original aim of the original orphan works bill , but this got hijacked by those who wish to make monetary gains at the expense of others . Does Mark SG know that stop43 and other groups supported cultural use . Does Mark SG know that there is a perfectly workable solution to the whole orphan works dilemma in the pipeline ( a digital hub ) , but that this legislation has been pushed through under the entirely inappropriate ERRA , probably in order to undermine it ? If this is such important moral and upright legislation , why was it not considered properly on it’s own ?

    • SimonC

      “You’ll find little industry support for them.”

      A petition against the ERRA’s Act’s copyright provisions has gained around 13,500 signatories in the course of today, it’s gaining several hundred signatories an hour. I think you’ll find overwhelming industry support for them. And support outside the industry for that matter. This is an issue that affects the general public – users of social media etc. – as much as it does photographers.

      And 70 organisations in the industry signed a letter fighting the orphan works and ECL changes: http://www.bjp-online.com/british-journal-of-photography/news/2235856/photography-industry-shows-mass-opposition-to-government-copyright-changes

      ‘Little industry support’? Really???

  • philipc

    “It is true that international copyright treaties grant copyright owners ‘the exclusive right of authorizing the reproduction of [their] works. But, on the other hand, the purpose of copyright itself is to benefit the consumer by ensuring that works are created. So if the two goals are in conflict, the latter prevails.”

    Silly me – of course this all must be the true purpose of copyright because you say it is. And anyway, if it is not, you are still saying it is because if it were not the rest of your argument would be hollow.

  • mr smith

    From another part of your website: “If you want to re-use any of my content in a commercial context, or any situation in which you are unable to meet the above conditions, please contact me. As a general rule, I am happy for it to be republished on a commercial website or in an offline publication at your normal freelance contributor rates.”

    So would it be o.k. to take any of the code you write or any other intellectual property you create and use it for free? Actually I don’t have to ask you as I will soon just take what I want anyway, it’s easy you just strip metadata (if its not been stripped already) and as for a ‘diligent search’ well my excuse is “we’ll I copied the image for reference but when I looked again for the site I couldn’t remember where it came from? But I did look.”

    • MarkSG

      Feel free. Sharing isn’t stealing.

      • mr smith

        The film and music industry wouldn’t agree with you and neither would the photographic industry. That freetard attitude comes at a price.

      • frp4914

        It is if the recipients are the ones who initiate the ‘sharing’.

  • http://twitter.com/AgriImagesSE Mal Case-Green

    You say It is a tort not a criminal offence to use a picture Illegally.. You are correct, however it is a criminal offence to remove IPTC data. Photographers are happy to just sue for their work being used without consent. But it is a police matter if data is removed from the file info. Just to correct you.

    Mal CG

    • Simon

      Specifically what law do you refer to? Section and subsection please. And if you can provide stats on successful prosecutions that would be good too…

  • Derek Seaward

    Its painfully obvious that you have never created or owned a piece of creative work worth either stealing or misusing. I have, and as it stood one was entitled to demand payment under copyright theft. Now with the new law the same people will be allowed to do the same and having stripped out the metadata claim that the owner was untraceable and assume their right to use it. To have to now spend a percentage of my time not only policing my work but having found an offender ,.. will have to go through a Governmental Department to try and retrieve what is rightly mine …. And if you have ever had to deal with Government departments one knows how long that will take. If as it is obvious by the response to this Act that all Photographers and all leading Photographic Organisations are and always have been against it …. Then it obviously needed to issued in a different form to allow ancient, unowned pictures to be used.
    But once again, as with the Health Bill the government did not listen to the Professionals who knew exactly how this bill should have been written.. They just want to appease wealthy members who support their party to have and to hold what is not theirs but they believe should be at no cost. There are no registers set up … there is no central office where images are stored … Wouldn’t it be wonderful to have a Government that listens to the people who know. Never mind we have the vote. Also how we will be able to use and abuse the pictures of Cameron and hi s administration when the election comes around.

  • Rob Johns

    Crikey, where to start? Ok, you write, “What the ERRA will actually allow is the limited exploitation of “orphan” works.”

    Please enlighten us as to what those limitations will be. Thanks

    • MarkSG

      Why don’t you read the actual legislation, rather than asking me to explain it for you?

      • Rob Johns

        Go on indulge all of us here and tell us what those limitations are, after all we are having the discussion here, right.

  • BrendaM

    I am so angry with you. The “handful of activists” you condemn so readily are professional photographers (like us and the 40+ others we represent) who have taken time out of their businesses to create a central point of information and concerted objection to the UK Gov’s stripping of our Intellectual Property rights as enshrined in the Berne Convention. This clause on such an important topic has sneaked into an Employment Regulatory Bill when it should be subject to a whole Bill and debate in it’s own right, most of the MP’s don’t understand how they are decimating the livelihoods of creative artists in this Bill.
    I don’t have the time or parliamentary understanding to singlehandedly oppose this ill informed Bill but thank goodness for some ‘activists’ – or concerned professionals as I call them – who are helping their colleagues to unite and try to overturn this disaster.
    You ask “Why do we want to?” How about this example for a start
    You ask “how a professional can be harmed” try this link – or just ASK US!

    • MarkSG

      I’ll tell you what. When you can show me audited accounts showing precisely what this Act has cost you, personally, over the course of the next 12 months, I’ll stump up the cash to compensate you.

      Deal?

      • frp4914

        Of course, you know that that is impossible: one cannot accurately quantify the business which has been lost because potential clients have opted for a stolen alternative. Similarly, an off-licence can only estimate, in monetary terms, the impact of cheap alcohol and cigarettes, imported by international crime syndicates with diverse interests in drug trafficking and prostitution, and sold off the back of a lorry or down the pub. But its owners, and its legitimate customers, know they’ve gone out of business.
        In no way would I conflate the seriousness of this activity with that of copyright infringement, and I take the liberty of assuming that you would spare nothing in your condemnation of such crime. However, “Yippee, we’ve got cheap photos, innit great!” is, to my mind, no less myopic and no more comprehensive an analysis, than: “Yippee, we’ve got cheap booze and fags, innit great!” was in that scenario. It is always a good idea to investigate all the effects and consequences of an action, rather than just running with the first that you think of.

        • http://twitter.com/mark_cummins Mark Cummins

          frp4914 – I know this won’t go down very well, but cheap photographs would be good for the public. If genuine orphan works can be used cheaply by the public for creative commercial uses, that is a huge boon and my be good for the overall economy. Obviously bad for professional photographers, but good for the public at large. This is assuming the law is operated properly and it is not abused for effective theft in the way photographers are worried about.
          Copyright law is not a human right, it is an economic balance between incentivizing creators on one hand, and not harming the public too much on the other. Like acts of enclosure back in the day, it actively robs the public on the basis that the incentives to creators are worth it. That is a balance that has to be kept in mind.

          • frp4914

            Hi Mark,
            I appreciate that we have a philosophical difference here, and that we can perhaps never agree, but I cannot understand how copyright protection can rob the public, nor the comparison with enclosure, but I may be being a bit dopey. I’m sorry if I’m misunderstanding, but your assertion that copyright should avoid ‘harming the public’ baffles me. The public hasn’t had anything taken from them when someone takes a photo. If I take a photo, and only ever look at it myself, have I inflicted a harm which would have been avoided if I hadn’t taken the photo?

            These works have been created, whatever their worth, merit, value, usefulness, whatever, by someone. Should they not have the sole right to decide how they are used?

            And if ‘genuine orphan works’ (you may not have seen my recent post explaining why I think these are not that prevalent) are used for creative commercial use, how will this benefit the public? I’m not asserting that it won’t, I’m genuinely interested in your views on how it might.

            Regards, Andy.

          • http://twitter.com/mark_cummins Mark Cummins

            Hi Andy – Nice to have a measured discussion on this. It’s interesting that my perspective seems so alien. I need to give a bit of history to explain it.

            Historically, copyright is fairly recent – the first copyright law is the Statute of Ann from 1710. The concept of intellectual property didn’t really exist prior to this. In the same way that you are free to repeat a story someone told you, you were free to copy a book you owned. Before the invention of the printing press this didn’t really matter because mass copying was too expensive anyway.

            The first copyright law was basically a reaction to the printing press, to give authors some means to profit from their work and not have the printers claim it all.

            Here’s the key point – when the first copyright law was introduced in 1710, it removed from the public a right to freely copy works, which they had always enjoyed before that time. It’s almost identical to Acts of Enclosure – it took something that was previously public and put it in private hands, on the idea that it would be a net win.

            This is why copyright is for a limited time. After some number of years works pass back into the public domain, which was their default state before the invention of copyright. Copyright used to be comparatively short.The original length of copyright in the United States was 14 years, and you had to explicitly apply for it.

            A lot of people now seem to think copyright is more like a natural right, but the historical norm is much closer to considering sharing as a natural right, and copyright as a short-term monopoly the government grants creators (against the short-run public interest) to incentive things to be created.

            Finally, just to say am not against copyright. I really do want to see creators protected. My own livelihood as a software developer relies on copyright protection. But I get a bit irked by the frequently-encountered view that copyright is something like a human right, when it is really a social bargain constructed to balance public vs private interests. If copyright were still in it’s original form of 14-year terms with explicit application, I would be far happier with it. That would give us a large public domain which people could build on. As is, I think the balance has swung too far towards private interests (mostly through the lobbying of large firms like Disney, etc), to the detriment of the wider public good.

          • MarkSG

            That’s broadly my position, too.

      • BrendaM

        Don’t be ridiculous. It is not possible to quantify all the misuses of our photos since the point is they happen without our knowledge or permission! These illegal uses have risen exponentially in the digital age with the increasing ease of display and dispersal around the world via the internet. If you want an example try this article about a colleague who has found lots of misuses of his photos, has taken court action, some successful – but that will change under this bill. He has now decided to relocate to Germany where his photography still has some copyright protection.
        theregister.co.uk/2013/03/12/err_bill_photo_consequences/

  • BrendaM

    Links given earlier were garbled so here is one horror story at bbc.co.uk/news/magazine-19804286
    Summary: “The engagement photograph showed (a gay couple) at
    their happiest, celebrating their love and upcoming marriage. Two years
    later, they were shocked to see it used in an advert opposing same-sex
    union.”

    How would you feel in such a privacy invading intrusion that literally turned your world upside down – all without penalty or recompense?

    Another link shows how a professional artist could be liable to damages if infringers use his photos and conflict with his client’s interests – even if done without his knowledge & permission. That is the harm that can affect livelihoods

    photobusinessforum.blogspot.co.uk/2008/05/orphan-works-and-licensing-exclusivity.html

  • Rob Johns

    Also, you write, “The vast majority of copyright works are not orphans. Most of those that are, are older material where ownership records have been lost in the mists of time.”

    Crikey, you so wrong here. You’re naivety is almost childlike. The International Press Telecommunications Council has released a new study into the use of images by social media websites, finding that some of the most predominant ones, such as Facebook, Twitter and even Flickr routinely remove photographers’ metadata from the images they host. Now if a picture has lost it’s metadata upon upload and is shared and shared again and shared some more, it doesn’t take long for the work to become orphaned. Unless you can show somehow traceability of it’s creator somehow having lost it’s metadata.

    • benjamin

      We put a man on the moon Rob. I’m sure we can find a way to make a photo traceable (for those that care). Don’t you?

      • frp4914

        I wouldn’t imagine that there is much transferable knowledge between these two tasks. But the fundamental point is that it is easy to fail to trace a photo if the overwhelming incentive is to avoid finding it. How much time and effort would you spend on doing something for which you would derive far more benefit in not doing it?

  • ConorM

    I’ve stopped half way through your ramble because a simple fact you have not changed. You don’t need to allow orphan works to be used. It isn’t necessary. You seem to assume that there will be no abuse of this system. The massive problem with this suggested new bill is that there are not sufficient penalties or deterrents for misuse. Put simply it is too easy to abuse and to , using your analogy, claim ‘What me guv’nor? I never. I found that watch on the street. Its mine” well if you think there are no criminals then the watch may have been found on the street but the potential for abuse is too great.

    I repeat, there is no need for this legislation. As you correctly point out there are vast quantities of copyrighted images available for use in the world. If image use is required ask for permission from the copyright holder. If you cant find the copyright holder then move on. You know someone owns it. Innocence is not an excuse in the eye of the law but, with this bill, the penalty you risk is probably worth it.

    It doesnt get any simpler than that.

  • Rob Johns

    You write, “Yes, it’s true that the copyright owner will probably get no benefit from the exploitation of his work. But then, he wouldn’t have got any from the non-exploitation of it either.”

    And that is his or her right, it does not mean to say that someone else should have the right to exploit it. Often pictures are personal and not everything is fair game for commercial exploitation.

  • Rob Johns

    You write, “While you’re there, though, have a look around the site. Try to find out who owns and runs the site. It’s surprisingly difficult. No names are mentioned, just the fact that the site is run by “a handful of activists“.”

    Do you have anything against activists, you keep mentioning that word rather a lot. Are you trying to paint a certain picture about people concerned about maintaining their intellectual property?

    • MarkSG

      I’m making the point that they are a small, albeit vocal, minority, yes. Oddly enough, the professional photographers that I am actually acquainted with are not bothered by the new law.

      • Rob Johns

        Perhaps the photographers you’re acquainted with aren’t that bothered about copyright as a whole per se. Sadly, they do exist to the detriment of the profession. You speak as if you and the photographers you know are appointed by God to speak about something that in reality you are ill equipped to talk about. Others are entitled to their opinion and if they feel passionately about it you have no right to label them as activists as if it’s something to be ashamed of. Robert Capa and others fought hard to retain copyright, I suppose in your eyes that would make them activists too.

      • frp4914

        I suspect that the photographers you refer to our employed by local news outlets, so do not own the copyright in their work. On the other hand, they don’t have to pay for their photographic equipment, repairs, computers, software, office space, Public Liability Insurance, Personal Injury Insurance, car, petrol, maintenance, accounts, marketing; they have paid annual leave, paid sick leave, and redundancy payments when they’re let go. They’re good guys, hard-working, professional, responsible and talented – I know many of them – but they’re not really germane to this debate, at least not directly.

      • SimonC

        “Oddly enough, the professional photographers that I am actually acquainted with are not bothered by the new law.”

        This reminds me of a politician I once met – the lady of a house whose family had been squires of the town going back nine centuries. She kept telling me with absolute confidence ‘what the working class’ thought on this issue or that – based on occasional conversations with her housekeeper.

        You presume to be able to give the entire photography and legal industry a lecture on a subject you clearly know absolutely nothing about, based on a conversation with some photographer “that you are actually acquainted with”.

        Is this dazzling combination of arrogance and ignorance a disease of the party that you are so proud of?

        • frp4914

          I think, Simon, that perhaps it would be apt to give Mark sole credit for this condition. Just as one photographer’s view, perhaps expressed out of expedience, when there’s no time to be wasted in debate, doesn’t represent an industry, so one councillor’s view need not represent a party. I’ve worked with many councillors and MPs, of all parties, and there’s no obvious pattern to draw between their personal qualities and party allegiances.
          That’s probably what you meant, I guess.

          • SimonC

            You’re right – it’s individuals that are arrogant. There are no doubt arrogant individuals in each party. In this case however, I believe this is fuelled by a collective arrogance that has led the Hargreaves review (as a product of the BBC, his conclusions merely reflected the institutional inertia and anti-market conservatism of that institution), there is the arrogance of the IPO (who have little experience or understanding of the sector they are supposed to be involved in, and keep their ears firmly closed). All of this forms a kind of collective arrogance, and Mark is merely a cog in that machine. You’re right, it’s not party-dependent.

      • Chris Terry

        “Oddly enough, the professional photographers that I am actually acquainted with are not bothered by the new law.”

        Hi Mark, could you tell us who they are and get them to comment openly here about what they do and their views on the bill please? They may know something that other photographers don’t and everyone could relax.

        Cheers,

        Chris.

  • SimonC

    So is Mark actually going to apologise for this wildly inaccurate (and I would suppose, possibly libellous) post? He is demonstrably wrong about the fundamentals of behind his post (copyright breach not being a criminal offence), and has described Stop43 as spreading lies.

    So Mark, do you actually have the strength of character to recognise your mistake and publicly apologise?

    • SimonC

      p.s.: I’m glad to see that you’ve corrected your post by adding in the words ‘other than in certain limited circumstances’. Unfortunately this correction doesn’t save your post from being highly misleading.

      • MarkSG

        It said “other than in certain limited circumstances” right from the beginning. I’m fully aware that deliberate infringement of copyright for commercial purposes is an offence. But most infringement is not.

        • SimonC

          “I’m fully aware that deliberate infringement of copyright for commercial purposes is an offence.”

          No, you are wrong. Again. In order to be a criminal offence, it doesn’t have to be either deliberate or for commercial purposes.

          Read the Act again. It only has to be either (1) in the course of a business (no requirement that it should be ‘deliberate’, and the purposes could be non-commercial or charitable) or (2) by a private individual if it causes material prejudice.

          This basic lack of understanding of copyright law is worrying.

      • SimoncworksforIPO

        Simon, you are straight out of a Harry Enfield sketch and I seriously suspect you are a mole working for the IPO office. You do such a good job of playing the paranoid photographer type, they’re out to get us, we’re all doomed, and everyone else is wrong and must apologise.

        • frp4914

          OK, Benjamin, what are your thoughts on how you envisage the new legislation working, based on your knowledge and experience? And who do you think will benefit from it, and who will be disadvantaged?

    • MarkSG

      Who, precisely, am I libelling?

      • SimonC

        You have accused someone of telling lies. That is pretty strong, on the face of it, it sounds libellous, unless you can prove it. Your blog post seems ill-informed and if anything to confirm Stop43′s position as being substantially correct. I suppose you must have some other evidence up your sleeve that you are keeping from us?

        I’m just surprised that you would willingly stick your neck so far out.

        • MarkSG

          I’ll happily defend my position in court if necessary.

        • SimonCworksforIPO

          ‘I’m just surprised that you would willingly stick your neck so far out.’

          Yeah Mark you bad nasty man for writing an enlightening article pointing out STOP43 are lieing. How can
          you sleep at night knowing any minute now they might want to spend tens
          of thousands of pounds taking you to court to get nothing back. The
          audacity of having an opinion is shocking.

          ROFL ..

  • Spartacus

    I’m Stop43!

  • Tim P

    Mark’s musing: “It is true that international copyright treaties grant copyright owners “the exclusive right of authorizing the reproduction of [their] works”. But, on the other hand, the purpose of copyright itself is to benefit the consumer by ensuring that works are created. So if the two goals are in conflict, the latter prevails”

    I’m struggling to understand your mindset but I think this quote encapsulates it even though it makes no sense. You see yourself primarily as a ‘consumer’ and therefore seem to place a higher value on ‘consumption’ than ‘creation’. It is true that we are all consumers, but it is the creators that service the consumption. Copyright exists to protect the creator’s ability to control the rights to his work, not to protect the consumers right to enjoy that work. What you seem to fail to understand is that helping yourself to other peoples work without their explicit permission, in a commercial context, is not sharing – it is thieving. You seem to be living in a fools paradise where the cynical exploitation and even re-selling of work classified as ‘orphaned’ would never occur to anybody with less than scrupulous good intentions. You also need to think about the rights of people who, entirely by accident, actually appear in these so-called orphaned photos. How would you feel about you or members of your family appearing in what you might consider an unsavoury context without having been asked, let alone paid? This issue would be further complicated if the photo featured a professional model who had already negotiated an agreed usage licence before the photo got ‘lost’ and had never agreed to any further commercial usage. Who would they approach regarding remuneration or even their moral rights regarding the use of their likeness in a context that they’re uncomfortable with? It would be childish and naive to brush these concerns aside.

  • BobC

    So Mark is a Tory and a Freetard. Is he too thick to match his freetard ideas with his party closing libraries across the country? Just in case Mark hasn’t visited a library recently I can tell him that well funded libraries are stacked full of books some of which are orphan works which he can read for free. Its a life-style choice. Either go and consume culture for free at a library or write silly blogs knocking the creators who are hard at work creating new work to put in those libraries.

    Is there really any evidence that the freetard mob want to read more than the 200,000 books published in the UK each year? That is something like 500 books a day. Of course the promoters of OW legislation do not want there to be more books making a profit for their authors. What they really want is more “free” content to put their ads against. It is Google and their like who have such ethical tax arrangements that we are ripping up our copyright protections for. Just the sort of idea that a Tory would support.

  • Jonathan Brown

    OK Mark, I don’t know who you are, where you are (am guessing Evesham?), and why you seem to have such a deep hatred of people trying to support their livelihoods. Beats me why you’re so wound up about this?

    OK, let’s try and put you right here.

    Now, I don’t have a legal background (I’m a photographer; I work for myself, bloody hard, to support my wife and child.) I pay my taxes and try and support my local community and commerce – Newcastle upon Tyne….not that it matters.

    However, the world’s largest news agencies damn well do posses serious legal firepower (watch Levison did we?) and they have delivered a Letter Before Claim to the UK’s business secretary Vince Cable, in what is the first step in the process of initiating a Judicial Review – a formal legal challenge to planned governmental legislation.

    Including these guys:

    Associated Press
    Getty Images
    Reuters
    British Pathé
    Press Association
    The Federation of Commercial and Audiovisual Libraries

    and many others; lightweight bunch aren’t they?

    They are, as are Stop43 and many other artist’s rights organisations, objecting to Clauses 66, 67 and 68 of the Enterprise and Regularoty Reform Bill, which will allow the government to make changes to copyright exceptions, reduce the length of term of copyright, and allow the licensing of Orphan Works.

    Now, these companies have serious clout, they have huge UK revenue figures and support a significant part of the UK’s cultural revenue.

    They also know a damn sight more about the legislation than you will ever know – the firepower of their lawyers is frightening!

    If they are worried and unhappy, then so should all artistic creators.

    Please stop having a bash at this bill. It obviously does not affect you in any direct way, but has the potential to have a huge impact on many hard-working, income and tax generating UK businesses and individuals.

    Cheers

    Jonathan Brown

    http://www.brownsphotography.com

    • MarkSG

      I’m not wound up about it at all. All the anger and hatred here is coming from those who have swallowed the myths of the copyright maximalists. I like the way that IP law is being reformed by this administration, and I’m pleased that the government is prepared to take on the vested interests of powerful lobby groups.

      It’s true that the Act won’t directly affect me financially, as I don’t work for a publisher and I’m not a professional photographer. But, as a consumer, it will benefit me. I’m not going to pretend that I don’t stand to gain from the legislation, because – like the majority of the population – I clearly do. But my main reasons for supporting the Act aren’t to do with either wanting to benefit publishers or harm photographers, but simply because I want to see copyright law brought up to date.

      • Simon

        “But, as a consumer, it will benefit me.”

        Hmmm…The primary beneficiaries of these changes will be large corporations – content aggregators and scrapers like your political colleague & friend Grant Shapps – as well as the authors of click-derived ad revenue. It was great to watch the Google representative defend the low rates of corporation tax they pay here…so it may well be possible that the champagne corks were popping in Silicon Valley at the news of these changes…

        Currently the tax on revenue earned by small business directly licensing their IP is currently paid in the UK…so I am sure the corporation tax revenue from profits generated from the IP of others may well end up being redirected away from Mr Osbourne’s coffers and into their offshore pockets using the ‘Double Irish Dutch sandwich”. This will really really drive growth in the economy & reduce the deficit…

        “But my main reasons for supporting the Act aren’t to do with either wanting to benefit publishers or harm photographers”

        Well thank you for that clarification. From your posts so far, I thought you were against individual rights, was opposed to demonstrating support for small & local businesses, encouraged tax avoidance and welcomed state interference in a functioning, trade-based market.

        You may well remain unaffected by the changes…until election time. I wonder what UKIP’s view on personal property rights is?

        • MarkSG

          “I wonder what UKIP’s view on personal property rights is?”

          I doubt if they’re sophisticated enough to even have a policy on it. But, of they do, then if they want to be consistent they need to be in favour of reigning in copyright on the grounds that IP is anti-libertarian by nature. Not that I expect UKIP to be consistent, of course.,

          • frp4914

            “…IP is anti-libertarian by nature.”
            Would you care to explain why you think that could be so, Mark?

          • Simon

            Its interesting that Mark consistently ignores much of what is written around the issues this Act is responsible for, and only focusses upon the political.

            My conclusion is that Mark does not really feel comfortable with his own level of knowledge or understanding of the issues raised by others. This is a very common reaction in the political classes who have become increasingly detached from reality.

            Is it any wonder there is political disengagement and apathy with those who claim to represent us?

            On that basis, I do not think it worthwhile engaging any further. Enjoy the future Mark.

          • MarkSG

            I’m comfortable with my level of knowledge, thanks. It’s clearly a lot better than that of many of the contributors here, and it’s good enough to earn me a pretty good salary. So I don’t really have anything much to complain about.

            Anyway, here’s another opinion, this time from someone who is a legal professional:

            http://www.francisdavey.co.uk/2013/05/orphan-works-new-law-in-uk.html

          • frp4914

            ‘I’m comfortable with my level of knowledge, thanks.’

            Surely, Mark, you must recognise how self-damning that statement is. I’m pleased to say that I am not comfortable with my level of knowledge on any subject. Nothing has ever been learnt by anyone who is comfortable with their level of knowledge. Simon is referring, as he stated, to your level of knowledge of the issues pertaining to this discussion, as raised by those who have commented on your post, not the knowledge which you rely on to earn your salary.

            Francis Davey is a legal professional. There are many legal professionals, and not one of their number can be an expert in every field. It’s clear from Mr Davey’s blog post, to which you have linked, that the application of copyright for photographs is not within his expertise and that he hasn’t considered any of the practical needs of the proposed new order, because he has had no cause to. From his blog:-

            ‘Records have to be kept by the institutions of their diligent searches which must be sent to their national government which in turn must make the results available on a publicly searchable website .’

            How? What on earth could the search criteria be?

            ‘This ought to make it easy for copyright owners to discover whether one of their works has been designated as an “orphan” and, having found out, make sure that oprhan status is rescinded.’

            How? What on earth could the search criteria be?
            There seems to be a fixation with the notion of ‘orphan works’ legislation being necessary to free up a few ancient photographs of significant cultural and/or artistic merit. Few would oppose that aim, but the present proposals have been made, and supported, with absolute ignorance of the actual scale, reach and purpose of the photographic industry, with the exception, one assumes, of those who stand to gain the most (Google, BBC, News Corp, etc). I am convinced that those who glibly write about ‘easy searches’ think in terms of a dozen or so people knocking out a couple of snaps every other month: “We’ve pinned them up on the notice board; do you recognise any of these photos as yours?”, type of thing.

            ‘There will almost certainly be a fairly tight and prescriptive description of what counts as a “diligent search”.’

            Mr Davey is one of the fast breeding millions who have no idea how a ‘diligent search’ can be prescribed, but is sure that someone else must know. Unless this omnipotent fairy godmother can be brought out of the hat pretty soon, I think it’ll just have to be accepted that this ‘diligent search’ nonsense just ain’t gonna fly.

            Unlike Mr Davey, SimonC is both a lawyer and a photographer. You can see how his views on the topic are bound to be better informed.

          • MarkSG

            Why don’t you post those comments on the blog that I linked to? After all, if you know more about it than he does, you can take the opportunity to show him where he’s wrong. Or are you, perchance, not comfortable with your level of knowledge in the area and are afraid of it being exposed?

          • frp4914

            I posted them here because you linked to it here. There has been an ongoing discussion here amongst people interested in the topic at hand, whereas there is only one comment on Mr Davey’s post. You posted the link because the views expressed by Mr Davey accord with the position you have chosen to adopt. I illustrated why Mr Davey’s post is largely irrelevant to the discussion because it avoids addressing how the ‘orphan works’ theory can operate in the real world. That there is only one response to his post is no surprise.

            I have no interest in comparing my knowledge with Mr Davey’s or, indeed, anyone else’s. Why would I? And why would I fear my lack of knowledge being exposed? This is not an ego competition, and I’m always keen to learn.

            Mark, I shouldn’t be surprised if I’m not alone, amongst those who have commented on this thread, in being mystified and, yes, a little exasperated, by your pointed refusal to engage with any of the rational, evidence-based points raised, in good faith, by many of the comments here from people who have detailed first-hand experience of the field. Instead, you serve up a series of increasingly juvenile ripostes, legal misunderstandings, tangential distractions, logically impossible requests, a link to an irrelevant blog and the dismissal of an Act of Parliament because it doesn’t say what you’d like it to.

            This thread started with a deliberately combative post, baldly accusing Stop43 of lies and propaganda, and purposely misinterpreting its writing in the crudest manner. Subsequently, you have offered nothing to support your stance, in the face of overwhelming evidence discrediting it.

            I expect that to most of those who have commented, this is a serious business and they are fearful of the consequences of legislation which has been given inadequate consideration. You, by contrast, appear to have no interest in the topic under discussion at all.

          • MarkSG

            The reason I’m not replying in detail is, frankly, because there is very little of substance worth replying to. It is abundantly clear, for example, that very few, if any, of the people commenting on this thread have actually read the legislation itself.

            The fact that my post exposing the lies and propaganda of Stop43 (and yes, they are lies and propaganda) has attracted a lot of criticism is not surprising;.That doesn’t make the criticism valid.There’s a rent-a-mob mentality among those supporting Stop43, and engaging with them on anything other than superficial level is just going to be a waste of my time. Sorry if that disappoints you,but playing with trolls gets boring after a while.

          • frp4914

            Mark, I contest the veracity of each of the statements in this post. But, unfortunately, the fact that you are programmed only to transmit does, indeed, make this a waste of time.
            Still, whatever makes you happy.
            Over and out.

  • MarkSG

    For the benefit of anyone who’s still following this topic, here’s a useful explanation of the new law by a legal professional:

    http://www.francisdavey.co.uk/2013/05/orphan-works-new-law-in-uk.html

  • Simon Brown

    Your whole article based on a misconception. Copyright infringement *is* a criminal offence, how could you not know that? And I see from the comments below that I am not the only one to point that out to you.
    And you’re now Mayor of Evesham? Oh dear…

    • MarkSG

      What I wrote was that copyright infringement is not a criminal offence except under certain, limited circumstances.Since that is, indisputably, correct, I can only conclude that you didn’t bother reading the article. Just like you, and the other moaners in this thread, haven’t bothered to read the actual wording of the new orphan works legislation. Excuse me, therefore, if I don’t take your opinions seriously.