The copyright orphanage

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.