The copyright orphanage

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The Enterprise and Regulatory Reform Act may not sound like the most exciting of laws, but it contains a section which will make some significant differences to the way copyright is applied to photos. And, since a lot of people take photos and post them on the Internet, they may be interested to know what those changes will be.

Or maybe not. Because, although you wouldn’t think it to read some of the attacks on the bill (such as this one in The Register by copyright enthusiast Andrew Orlowski, or this one by well known photographer David Bailey), it’s unlikely that the Act will have any significant negative effect at all on the vast majority of photographers, both professional and amateur.

The new clause concerns photos which are what is technically known as an “orphan work” – a photo which is subject to copyright, and therefore not available for use without the permission of the photographer, but where the identity of the photographer isn’t known and therefore can’t be asked.

What the new law actually says, in effect, is that it’s OK to use photos you come across on the Internet (or in print) without needing the permission of the photographer, provided you can show that you made what the law calls a “diligent search” to try and find out who the photo belongs to. Or, in other words, if it’s an orphan work, then it’s OK to use it. Although by “OK” it doesn’t mean “for free” – if the photographer finds out that his or her photo has been used, they are still entitled to charge a fee. It just means that the user can’t be whacked with punitive fees just because, when they tried to find out who they should contact to ask for permission, they drew a blank.

Photographers are up in arms at this, because they fear that the change in the law will be exploited by commercial organisations which will simply use photos left right and centre without making more than a cursory attempt to find out who owns them. That is, clearly, a genuine possibility, although the law also offers a way of mitigating this by providing a way for photographers to register their photos with a central database so that they will show up in a search. So long as you’ve done that, then a user can’t reasonably claim to have carried out a diligent search if they couldn’t even be bothered to look in the most obvious place. That makes their use unauthorised, even with the benefit of the new law. Many photographers, though, aren’t happy with this, because they feel that it imposes an unnecessary burden on them to prevent commercial exploitation by registering.

The particular complaint by many people is that many social networks and online photo sharing websites tend to make it harder to find out who originally created a photo. They do this by stripping out what’s known as the “meta data” – code hidden within a photo file which, originally, contains a wealth of information about where, when and how the photo was taken – things which can make it a lot easier to find out who took the photo in the first place. So photos posted on Facebook, Instagram et al are more likely to end up being deemed to be “orphan”, because there’s nothing associated with them which would enable a reasonably diligent search to discover where they came from. Stick your photos on Facebook, and there’s now a much greater chance of them ultimately being used commercially without your permission.

So, the orphan works clause (or the “Instagram Act” as Orlowski calls it) is a bad thing, right?

Well, no. Despite the howls of protest, I think it’s a good thing. Here’s an orphan work:

That’s a photo of Evesham Midland Station sometime before it closed. That’s pretty much all I know. I found it via a Google image search for “old photos of Evesham”. The website which I took it from doesn’t give any information about it either. Looking closely, it appears to be a postcard, and it looks fairly old. It’s old enough that it may well be out of copyright, in which case it’s perfectly fine for me to use it anyway. But it may not be. If the photographer died later than 1943 then it’s still in copyright and I shouldn’t really use it without the permission of his heirs, who now own the copyright on the photo. If we’re going to play this by the book, therefore, I shouldn’t use it, and neither should the website I found it on, and neither should Google. And all of us would be denied the chance to see a fascinating slice of life gone by. (Well, maybe not that fascinating, unless you’re into steam railways. But I am).

The new legislation, though, will allow me to use it. I’ll still need to pay a reasonable licensing fee if the copyright owner does turn up and wants to licence the photo to me, which is fair enough. But I’m not in the position of having to avoid using the photo just because I don’t know who owns it. And it’s hard to see how that can be considered a bad thing.

OK, you may say, so that’s one example of where the law is a good thing. But what about all the people who upload their photos to Facetwitagram and might end up with them being used in the same way?

Well, what about them? At the moment, if you don’t know who owns a photo, you can’t use it. And if you don’t use it, you clearly don’t owe any fees to the owner for not using it. In future, you can use it, but if you do you might end up having to pay a fee if the owner comes forward. Again, it’s hard to see how that can be a bad thing. To the owner of a photo, there is no practical difference between someone not using it and not paying you because they can’t find you and someone using it and not paying you because they can’t find you.

But what about privacy? What if someone doesn’t want the world and his dog looking at their photos? The obvious answer to that is that if you don’t want them to be seen by the public, don’t make them publicly accessible on the Internet.

What about people who want their photos to be used, but also want to be paid? That’s entirely reasonable, but professional photographers do not use Facebook, TwitPic and Instagram as their sole publishing method. If you’re a professional photographer, or have ambitions to be one, then you’ll already be putting your photos on display in places where prospective users can find out exactly who you are. Or you’ll be doing work on a contract basis where people pay you to take photos rather than just paying you for ones you’ve already taken. Or you’ll have links with established agencies, such as Getty Images, who will market your photos for you. For the true professional, the prospect of a centralised register is a plus, not a negative – it makes it easier to ensure that your photos are always in a place where prospective purchasers can find them.

For those reasons alone, then, I think that opposition to the Act is overblown. It can’t possibly hurt amateurs who don’t earn anything from their photos to begin with (and might even help them), and is unlikely to hurt any professional who is prepared to put a bit of effort into monetising their work. But there are other, more philosophical reasons to favour the legislation.

One of those is consistency. If you’re in favour of a more relaxed approach to “fair use” of copyright work (a term which isn’t found in UK legislation, but does nonetheless convey a widely-understood principle) when it comes to things like music and movies, then you also have to be in favour when it comes to photos. There’s more than a smidgeon of hypocrisy in the attitude of many people who are all in favour of being allowed to share files that contain their favourite songs, but don’t want other people to share files that contain their photos. (Having said that, I’m not accusing Andrew Orlowski of hypocrisy. Far from it: he has consistently opposed any and all extensions to fair use principles in every aspect of copyright). But the most fundamental reason to support the legislation is found in the nature of copyright itself.

The purpose of copyright is not to provide a benefit to the creator. The purpose of copyright is to provide a benefit to the consumer, by incentivising the creator to produce more work. In some cases, that clearly works – in software and movies, for example, we wouldn’t have anything like the variety and quality available to us that we do have if the creators of them couldn’t make money from them. And it arguably applies in music, although with much less justification. But it doesn’t apply to photos.

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.

The purpose of copyright is to benefit the consumer by increasing supply. So the only way that legislation which affects copyright can be judged is on the how it affects that goal. So here’s the question which needs to be asked: Will the orphan works section of the Enterprise and Regulatory Reform Act reduce the quantity and/or quality of photographs available to the public, either directly or via intermediaries such as news outlets and other publishers? Because only if the answer is “yes” is there any rational, unbiased reason to oppose it.

Incidentally, if you’re wondering what the point of the image is at the top of this article, I would have thought it’s obvious. It’s a stock photo.

Edit: I’ve written a follow-up to this post, addressing some of the claims made by one particular lobby group in more detail.

  • Michael Kay

    Professional photographers don’t dislike this because their work will be stolen. They dislike it because their work will have to compete with a free alternative.

    • Their work has always had to compete with a free alternative. Even more so in the Internet age. It may make supplying stock photography a less lucrative option for professionals (as this will increase the supply of free, or cheap, alternatives), but that’s only a small part of the pro photo economy.

  • Martin Locock

    You over-simplify the example: you may be able to use the photo but you still are not allowed to use the source website’s scan of the photo without the website’s permission.

    • Charles Oppenheim

      A simple scan of a photo does not enjoy its own copyright

  • Contemporary Dave

    And what about if a photo is used.. say of a model and the parties use the image without without a model release? Or if they use a photo of a child and they have not sought permission from the child’s parents to use the photo? What recourse does the model or the child’s parents have?

    • Model releases are entirely separate to copyright, and aren’t addressed by the legislation. if you have any reason to believe that a photo requires a model release, and you can’t get it, then you still can’t use it even if it’s an orphan work.

      In practice, this limits the scope of the orphan works provision, as it will only be possible to rely on it where the image in question clearly does not require a model release.

  • Tony Sleep

    From what you have written you do not understand this legislation, nor what the concerns really are. In fact there are major errors in your understanding of existing copyright law that indicate you don’t know the 1988 Act either. Educating yourself before dispensing blowhard opinions would have been a better place to start.

    Since you seem to be lacking a clue, I’ll give you one: nobody involved in opposing this law objects to some reasonable mechanism for allowing the cultural use of orphans nor their conservation. Every single photographers representative organisation has said as much many times over the past 7 years of submissions to Gowers, Lammy, IPO and Hargreaves and in umpteen consultations and meetings. Try Google. And you will also find a lot of debate about real and substantive problems as well as a lot of rubbish from people who’ve read a couple of half-baked articles on some website, and a lot of aerated wishful thinking and evasion from the other side. Who, by the way, believe that the “creative industries” are the large corporates who take them to lunch and donate to their party when not avoiding taxes, and that we mugs who make the stuff are just an irritating obstacle to profit.

    I’d love to explain it all to you personally, but I’m off to write an “ERRA for dummies” piece.

    • james

      Tony, do you know what an ad hominen attack is?

  • Simon Chapman

    one thing you have wrong: not only would someone who wants to use an orphan work have to do a ‘diligent search’ (whatever that is) but they would have to record the search they did, show it to an orphan works licensing body, and pay a fee upfront commensurate with the work and the use they wish to make of it, BEFORE using the orphan work. You will have to pay to use an orphan work, whether or not the creator of that work shows up; if they do show up the money goes to the creator. This will apply whether the work/photo is professional or amateur in origin, as long as there is any likelihood that it is still in copyright. The Government have said they do not want use of orphan works to undercut the markets in known works.

  • Simon Chapman

    “The purpose of copyright is not to provide a benefit to the creator.” Where do you get this from? Creative work is deemed to be good for society as a whole, economically, culturally etc. To ensure continuity of supply, firstly creators need to be rewarded for their work, so that they can earn a living spending more time creating more work, maintain and replace their equipment, train in new techniques etc. Then society benefits from the continued production of creative work by professionals who have the time to learn their craft, develop their art or style, and produce work which others don’t have the time to do.

    Unfettered orphan works usage might increase the supply of photos available, but it won’t increase the quality. It will certainly decrease the quality as professionals go out of business. The Government recognise this, which is why you will have to pay, in advance, for using an orphan work, so that the market for known works is not undercut by orphans.

    And copyright is not just for professionals, it’s for everyone who creates, whether amateur or professional. Why should amateurs have their work used without permission or payment? Why can’t anyone show their work to the public, online if they want, without having it ripped off? Copyright or better still Authors Rights (as in Europe) are human rights, and we need to be very careful that orphan works do not undermine that right.

  • Roger Goodgroves

    There are many holes in your argument for the use of Orphaned Works, however let me just throw this problem into the mix. As a professional music photographer I will often be presented with contracts to sign by the artists or their management which limit what I can do with the photographs I take. For example, only allow publication within a certain period or in a certain publication. Or they aren’t allowed for use on merchandise (t-shirts/posters etc). I am deemed liable for breach of these terms, yet now this responsibility is taken out of my hands and unless someone can trace the image back to me I can end up in court.

    Now you say that this should be easy as I am a professional and my images would be found elsewhere. In the above example they may well appear in a newspaper and on their web site, however only for a pre-determined period. In that time a fan copies the image and posts it to their facebook page. Facebook strips the meta data which identifies me as the author. Some time later someone likes the look of the photo, can no longer trace it to me and they can pay the appropriate fee to use it to the orphan works licencing body and thus place me in breach of the contract.

    The other purpose of copyright is to allow the artist to choose how their work is used. Once again I have potential lost that right