Wednesday, 16 December 2009
I have been keeping out of the debate on Police stopping photographers under the Terrorism act section 43 and 44 partly because there are already others out there doing a great job, and to be honest, here in sleepy Nottingham it isn’t actually a major problem, as most of the police around the East Midlands seem to have other things on their mind.
However, having said that, I have just been reading some of the reporting on the ‘so-called’ hostile reconnaissance video, supposedly taken by an Algerian ‘terror’ suspect.
If the BBC reporting is to be trusted, and similar reports were made in the British Journal of Photography, although one has to note that the initial report by the BJP has been heavily cleaned up of any quotes from police officers, some of which were outrageous, then the police have a pretty strange use of logic!
The original report by the BJP prompted me to write to the editor Simon Bainbridge the following missive:
"The City of London Police released video footage taken using a camera phone by an Algerian man in 'hostile reconnaissance' to justify stopping photographers"
What an illuminating statement from the City of London Police reported by BJP today (15th December).
By what logic exactly does the fact that:
"his camera phone had more than 90 minutes of video footage of tube stations, CCTV cameras and sensitive locations around London."
Justify the topping of photographers? Presumably as this arrested person was using a camera-phone when he was doing all this 'filming', the justification is not for stopping photographers at all, but for stopping people using camera-phones? That would include perhaps 25% of the adult population?
If the inference is that this person was conducting covert surveillance, then he did it using an innocent looking camera-phone such as many normal, average members of the public use on a regular basis throughout the day. Using this same logic surely it is very unlikely that Professional (or amateur) photographers carrying thousands of pounds worth of expensive and very obvious Japanese neck jewelry, and staying in one place long enough to be spotted, stopped and questioned by police should be the target of any terrorist stop and search.
Indeed by the very logic of Superintendent Chris Greany of the City of London Police, the police should instead be pouncing on anyone daring to use a camera phone.
Just how stupid do our police want us to think they are?
Sky News have the same basic line as the BBC
If this is the best the police can do to justify harassing ordinary amateur and professional photographers then frankly it looks pathetic. Hostile reconnaissance? Really? If this was a terrorist cell in action and the proof we are told was there then why was the full weight iof the law brought down upon these people?
We are told according to the BBC:
“The police said the CPS had decided there was sufficient evidence to bring terrorism charges, but it was not in the public interest because they would have received the same sentence as for fraud.”
Not in the public interest?
And there’s more:
“Police believe the men may have been a fundraising and research arm of an al Qaeda-linked group in North Africa.”
Yet despite this:
“Two men were subsequently convicted of a huge mobile phone and luxury goods fraud scam and deported after serving prison sentences.”
Not convicted for anything to do with terrorism then? So in fact they have not been found guilty of anything to do with terrorism, so the whole terrorism angle is simply supposition by the police (so we are told)?
And what makes all this worse; this awful stream of images and the subsequent inferences are being used to justify, not as one would expect, the stopping and checking of people using mobile phones as video cameras conducting, (so we are told), hostile reconnasince, but instead as the most feeble justification yet for stopping ordinary professional and amateur photographers and videographers out on the street, hiding nothing.
It is a complete joke. The police simply have to get a grip. How can we seriously can we take our forces of Law and Order when they seem to continually hassle people simply for taking photographs?
Member of: The National Union of Journalists
Thursday, 19 November 2009
Part 2 of an analysis Looking at the main part of the document
Indented paragraphs in italics are quotes from the document
Page 10 What is Copyright
“only the owner of a work can allow or prohibit the copying of their work, the performance of their work in public or the communication of their work to the public. The author of the work, as defined by the Copyright, Designs and Patents Act 1988 (CDPA), is the first owner except in certain specific circumstances. The author can assign or license their rights.”
‘Orphan works’ legislation as so far defined is nothing more than an orchestrated attempt to introduce exceptions into the 1988 Copyright Act. This dilutes the strength of the act, and it is difficult to see how this can be to the benefit of creators, as it is currently described.
The Government supports copyright – and I am pleased to hear it. David Mandelson's speech where this document was introduced, although disconcertingly much of the concern is based only on music and peer-to-peer file sharing. Reading Mr. Mandelson’s speech one would think that copyright only affect musicians! One must appreciate that in this context there is little difference between consumers sharing music downloads, and sharing images. Both are subject to copyright and both have creators. It would be clearly innapropriate for the government to suggest severely controlling the sharing of music files and then advocate a copyright exception for photographs at the same time.
Page 17 How was this Copyright Strategy developed?
People want access to many copyright works, some of which are currently hard to access.
Is this actually true? People? Who are people and what examples can we be given of this difficult access? Examples please – I can’t think of any.
However, systems for licensing are complex, time consuming to access and incomplete (they do not exist for all rights or types of works).
Complex? In what way exactly? I haven’t experienced any difficulty in clients accessing my work, or negotiating licenses, other than on occasion the client and myself might have a difference of opinion as to what constitutes a fair fee for a specific use. But an argument about price does not a complex difficulty make.
Making copyright licensing simpler for everyone.
Copyright is automatic and many works (such as photographs) do not incorporate details of their creator or rights holder. As a result, it is hard to get permission to use works.
Whilst it is true that many photographic works are published without the creator's details, this is largely because of the 1988 Copyright Act itself. Professional creators of photographic imagery are generally very careful to mark their work, and complete the IPTC data, which are the digital information fields held within the file itself. But it does not matter how careful the creator is if the publisher does not include the creators name. Under the 1988 Copyright Act, not only was it decided that the Creator had to assert his or her moral rights, when it came to both magazines and newspapers, both publishing fields were given moral rights exceptions, and neither are obliged to give credits, so consequently most don’t.
That moral rights have to be asserted is a pain, and many creators are simply unaware that this is the case. In addition with the World Wide Web today, there are many other issues that cause creators grief when it comes to moral rights. Many photo hosting sites, and by this I mean mainly the consumer social file sharing utilities such as Facebook, Flickr, and MySpace all remove IPTC data, as a matter of course in order to make smaller files. There is no choice in this.
This is not the only problem. Many publishing and other software routinely strips IPTC data from digital files.
Consumer and user education and legal enforcement of the creators moral rights would surely be the appropriate answer to this, backed up by an easy to use low cost appropriate legal access for the creator, rather than just giving the right to publish away.
Reducing copyright infringement. To achieve a system in which rights are widely respected, the behaviour of users and consumers must change. Enforcement is part of the answer, but so is the offer of attractive legitimate services by business.”
Absolutely, the behaviour of users and consumers must change, and the start of this must be education. As all members of society are now potential creators, even if it is only on social networking sites, it is essential that they learn to respect their own as well as other peoples copyright. Without question this must be backed up by enforcement.
No manner of attractive services for a ‘price’ will eliminate theft, whilst the general public assume that copyright either does not exist on the web, or for whatever reason does not apply to them.
We need to see more discussion about education of the consumer.
- Focus on enforcement should be retained as the solution to piracy
- · Education is necessary to improve respect for copyright
- · No new exceptions to copyright
- Authors need to be given more control over their work through the terms of assignment or license in contracts with rights holders
- ·Greater financial and legal support is needed to address copyright infringement
- ·Strengthen the moral rights of authors
Photographers all over the country will be punching the air at these statements. At last someone is listening
Users and Consumers
- Treat different types of users differently with private use such as format shifting being allowed
- ·No extension to the duration of copyright
- ·Rights holders can afford infringement as they are often exploiting those who create works.
This last point is one that is worth noting. Many consumers would be horrified if they thought they were stealing from low earning creators, yet many do, because they simply do not connect creators with published works. Consumers seem to be of the general belief that all writers earn like Stephen King, all photographers like Ansell Adams etc. Actually most creators are very low earners. Again it would seem that education would help us here.
C. The complexity of copyright derives from the historical accretion of rights, more complicated business models and the interactions of rights holders.
What complexity? Yet again we are told that there is a problem without any indication of what that problem might be. Examples please. Photographers at least are not aware of any complexity in the licensing of imagery.
So far every example I have seen of the desire to ‘simplify’ copyright has been a blatant attempt to make use either free or cheaper, at the direct cost to the creator. The latest desire to simplify in this way is the Guardian News Media who told photographers that from the 1st September they would be simplifying their contract with engaged photographers by simply not paying secondary rights fees.
P25 Copyright Exception
The European Commission’s 2008 Green Paper a Copyright in the Knowledge Economy considers the exceptions outlined in the Information Society Directive and their impact on the dissemination of research, science, and educational materials. In particular, it considers whether there should be any changes to the existing exceptions for the benefit of libraries and archives and for teaching and research purposes to facilitate wider dissemination.
There would appear to be few arguments that could be made against allowing Public Institutions such as libraries and universities the right to collate and store data including created works. However, this should not confer the right to exploitation of that data. Nor should it become an opportunity to for commercial institutions to make further gains or otherwise without creators permission.
Page 26 Economic Rights and Contract
37. Authors generally assign or license their economic rights to a business, such as a freelance journalist to a newspaper. The economic aspect of the business relationship between the author and the rights holder is usually covered by contract.
38. Assignment of rights means the author has no ability to authorise non-commercial or charitable uses or to take back control if a work becomes unavailable (e.g. out of print or not available to download). Licensing works can give the author more freedom to do these things, but authors in many sectors say it is much less common practice than assignment.
39. Our consultation indicated that many authors felt the balance of power with publishers was not in their favour and that they gave too much control of their work to others. This was a particular issue for photographers, freelance journalists and writers, musicians and also for SMEs from many sectors that actively sought to be author-friendly.
What appears to be a general recognition of creators problems, especially those of freelance Photojournalists is very encouraging. Please let us see some action to back up these sentiments and support creators.
Page 27 Moral rights and contracts
40. Moral rights were also seen as an issue causing difficulty and complexity in the relationship between the rights holder and the author, as well as between the author and the consumer and business.
41. Moral rights can be covered by contract and they can be waived by written agreement. This can be problematic for authors. For example, The Featured Artists Coalition (FAC) has objected to the use of music by FAC artists in a compilation CD by a political party. Following the release of this compilation the artists complained of ‘… the inability to object to the use of music in situations that are contrary to their beliefs and morals’
42. In discussions with stakeholders, many less high profile authors were concerned about the issue of moral rights. In particular, that these moral rights can be waived and that the right of attribution requires assertion. This was deemed to indicate that the moral rights system in the UK needed strengthening and was fundamentally misaligned with moral rights in continental Europe.
I hope I can read into this recognition that moral rights need considerably strengthening. The need to assert moral rights must be removed, and all publications should be obliged to credit work. There must be a mechanism by which authors/creators can gain recompense when publishers fail to credit. A penalty of + 50% of the agreed fee perhaps?
Public perceptions of the existing system
44. Our consultation has revealed that the public legitimacy of copyright has also been impacted by difficulties identified in the relationship between authors and rights holders, for instance those who do not receive a fair reward from those who exploit their works. The gulf between expectations of behaviour and what technology allows has also marred perceptions of the copyright system, for example, people do not understand why they should have to pay for using works in the “cut and paste” world in which we live.
People do not understand why they should pay because nobody has told them why. That the majority of our population can go through eleven years of education, an educational system that is the envy of the world, without gaining knowledge of copyright, creators rights is 'eyebrow-raising' at the very least. In a world where every child is a creator, where people, our children included regularly publish material on social networking sites, yet remain ignorant of copyright is a huge oversight.
We teach our children to use computers and become proficient with the World Wide Web and the Internet, yet we don’t teach them how to protect heir own created works. Clearly there is scope for improvement here, and this requires the government to initiate changes in the appropriate areas of education.
There is a persistent belief among consumers (as well as among some authors) that authors get relatively little from deals with major rights holders. This seems to reinforce attitudes that copyright infringement is a victimless crime ‘because the author won’t see a difference’.
It is strange that from one perception comes a huge and intolerable misconception. As I have mentioned several times already there is clearly a huge need to start educating the general population, and the best place to start will be our schools.
Thirty years ago who would have thought that smoking would ever be banned in public in the UK. Yet, as a result of health campaigns in schools, the perception of smoking has changed and as a result despite thoughts to the contrary when it actually came to banning smoking in public buildings including Public Houses, the legislation went through with hardly any dissent, and now non-smoking is the norm. We really do need to start educating our children about copyright.
60. European law governs what exceptions are possible in the UK. Currently it allows an exception for reproduction “for private use and for ends that are neither directly nor indirectly commercial, on condition that the rights holders receive fair compensation.
I think we have to be very careful here in how and what we describe as allowable exceptions. Think of the situation where someone wishes to use another person’s image to promote say ‘a far right political party’, a use that many would describe as not directly commercial. This might not be acceptable to many creators, and they would wish to have some say in how their material is being used.
There should be no exceptions outside of academic research and storage for use of creators work. The creator would always be asked permission before his or her work is used, and the creator’s wishes should be honoured, and not by passed using unfair legislation.
Page 33 A definition of non-commercial use
68. Differentiation between types of use and access can make the determination of the non-commercial difficult. Is the photograph of an artwork on the web page of a public library commercial use?
Does the situation change when advertising is sold on that web page? Does the situation change again if it is advertising a not-for-profit exhibition to be held at another public library? This issue is currently the subject of debate within the Creative Commons community and is the subject of a recent report and study. But the fundamental issue was understood and discussed as early as the 18th century.
We have to be very careful when we are making decisions that affect people livelihoods, and that can have a direct affect on their copyright status.
If we accept that libraries and academic institutions are a special case and can be allowed to digitise and store created works, then that is for most a good thing. To then start talking about publishing those works, well that is different, and starts to become less acceptable. Publishing is publishing after all, and if a web page is made available on the Internet then that is publishing, not storage. If that image is published then it may be copied and stolen. It is irrelevant, whether the library is actually charging for access to those pages or not. If the library is charging for access then that very much does constitute commercial use, and not only should the creator be consulted, but the creator should also receive due recompense for that use.
Publication is publication, whether it is on the web, in a newspaper, a magazine, or a book. Publication should only be by agreement with the copyright holder, and after a suitable payment has been agreed and made. No image should be made available to any third party from a libraries store of permitted digitised images without the permission of the creator.
If we start allowing unrestricted publication without reference to the creator merely on the basis that no money has exchanged hands then we immediately undermine the very notion of copyright. It is not just about money, it is about control of ones basic rights as a creator.
69. In the digital age there are principles which could guide any legal recognition of non-commercial use, through exceptions or otherwise.
First, it would have to recognise the changing, more interactive, relationship of consumers and users to content.
Second, it would have to recognise the moral rights of the original author.
Third, it would have to be accompanied by a compensatory system, which provides appropriate remuneration to rights holders.
No, no, no. We cannot encourage a system where people believe it is acceptable to use someone else’s original created works without permission. Before we allow consumers any further rights at all, we have to ensure that the understand the rights of creators, and about copyright, and about the integrity of created works. This is currently not the situation. You cannot give the consumer more responsibility until that can handle what they already have.
The moral rights of the creator MUST become enshrined in copyright, which currently it isn’t, but I am very unhappy with the idea that is suggested here that provided a credit is given that it is some how OK to steal or otherwise copy an image for ones own use. This is unacceptable. The creator must have a say in how his or her work is used, even if it is for a harmless school project.
Whilst I applaud the idea that creators must be recompensed for use of their work, this should not just be a system by which wholesale use of created works without reference to the creator is sanctioned. Each, and every creator needs suitable compensation for each and every use of their work. Some sort of levy is not adequate.
Whilst as a creator I welcome each and every new way of improving my income stream, I do not want to receive a paltry few pounds and in exchange have to lose control of my work.
One must realize that personal use to many consumers would be publication on Facebook, or Flickr or some other personal networking site. Any such publication makes material open and available, to anyone capable of copying, cutting, and pasting documents. A child using an image to illustrate a school project might well be considered acceptable educational use (but not all creators would agree with this, some images are incredibly difficult to capture), but personal use by consumers is a completely different thing altogether.
We are not tolerant of file sharing music files, which can be purchased for less than a pound each. Neither should we be tolerant of the sharing of image files, which fetch scores of pounds in publication up to many thousands. Uncontrolled use of images is damaging to professional creators.
Compensation for rights holders
71. International agreements on copyright means that any non-commercial use must pass a three-step test under the Berne Convention. Step three of this test states that if legislation permits the use of works, the use will not unreasonably prejudice the legitimate interest of the author. Leaving aside questions of whether permitting non-commercial use would be reasonable, or whether non-commercial use would satisfy the certain special circumstances step of the three-step test, any unreasonable prejudice could be compensated for.
At this moment in time is there any realistic way for creators or rights holders to get appropriate compensation?
Page 35 Copyright Levies
73. Copyright levies potentially offer benefits to rights holders and authors, both in terms of increased revenue and (as a consequence) greater attractiveness to investors. In the EU, copyright levies raised €568m in 2004. However, there are concerns about the negative impact on business, particularly equipment manufacturers, while consumer groups have also expressed resistance towards levies. For example, a levy may lead to paying twice for the ability to copy: once on the equipment and again within the purchase price of downloads from legal sites.
Whilst there is no question that the copyright levy, the dividend of which is distributed to editorial photographers through the Design and Artists Copyright Society, is very popular with its recipients and works very well, Photographers would not want to compromise their control of their own work through such a general scheme. I trust that this section is not going to be extended to the visual arts.
Page 36 Licensing and access
81. Even those who wish to stay scrupulously within the law often find that there is no clear, easy, legal route to obtain the rights they would need. Expensive and lengthy rights clearance procedures do not make licensing of works impossible, but they inhibit it and may in some cases prevent the development of otherwise viable projects or interfere with research – including research on copyright itself. Those who wish to use works may incur unnecessary costs seeking permissions or may infringe simply because the alternative is too onerous.
It is difficult to comprehend how anyone would describe the licensing of images in anyway complicated. Contact is made with the rights holder, permissions is sought, a fee negotiated, agreed, and paid, and the image is licensed. The only parties who seem to think that this system requires simplification are those seeking to circumvent it or to simply pay less and exploit material more. A good example of this might be seen as Guardian News Media
If there really are cases of complicated licensing it would be beneficial if some examples were given, as frankly from a photographic point of view licensing couldn’t be simpler.
Page 37 Cheaper and Quicker
83. Existing structures for authorising the use of copyright material are often ineffective, particularly for those who wish to exploit works. Licensing, in particular, is proving difficult in areas of mass exploitation where it can be financially burdensome and time-consuming, especially for a commercial user who has to locate all rights owners and conclude contracts with each of them.
Whilst it is unfortunate that in some isolated case mass exploitation may prove awkward or difficult, sometimes we just have to accept that this is the case. The rights of an author/creator should not be compromised just because it is not as convenient as an exploiter would like. Sometimes we just have to cope with difficulties.
Page 38 Extended collective licensing: tackling complexity
85. ‘Extended collective licensing’ has been used by the Nordic countries since the 1960s as a means for addressing the complexity brought on by mass use and exploitation of numerous rights. Under the Nordic system, once a collecting society is deemed to represent a critical mass of rights holders, it is assumed to act for all rights holders in that class or category of right. The works of all rights holders in the particular area that the collecting society represents are assumed to be in the collecting society’s repertoire, unless the rights holder specifically opts out of it.
As a photographer, whilst I welcome the idea of being paid, I am unhappy about the notion that again I should lose control of my own work in this way. Different creators might well have different ideas on how or whether their work should be used in this way or that, and in addition might well have different ideas about the value of their work. Collecting societies are not well placed to negotiate individual fees for work, and as such it is clear that for photography at least Collecting Societies are no remedy. All creators should have the right to say NO, and the right to price the use of their own work.
I have less of a problem with schools accessing material that has already been published and that use being paid for via a collecting society. However, I would be unhappy to see many other uses suddenly being deemed appropriate for Collecting Society involvement. Under no circumstances could I envisage commercial work or publishing being paid for in this matter, regardless how convenient it might prove to the user. All creators should retain the right to say no, and the right to price their own work.
Orphan Works: a legal basis for access
90. Despite the licensing procedures in place, there are a number of circumstances in which works cannot be licensed and, as a result, may not be used legally unless the use is covered by an exception to copyright. Where licensing negotiations fail or the rights holder is simply unwilling to give permission under any circumstances, then this is the right outcome. But it is currently not possible to use a work that is in copyright legitimately if the owner of a right in the work cannot be identified or found, even after a diligent search and even if all other identified owners of rights agree to its use. Works for which this is the case are known as ‘orphan works’; the rights for which no owner has been located can be termed ‘orphan rights’. An orphan work may have been anonymously created or records of a right holder may have been lost (making it impossible to determine who inherits a right after its author’s death, for example).
Exceptions to copyright are very dangerous for the creator and have the potential to be exploited by the unscrupulous. If a creator or license holder is unwilling to grant a license that how is this regarded as an appropriate reason to bypass the rights holder. Should we be invoking exceptions every time a decision is made that we do not agree with? Of course not! This should absolutely be no different with copyright, and publishing rights.
If the rights holder cannot be found or identified, then the work should not be used commercially – end of story.
94. A scheme which encouraged the identification of orphan works’ authors, for example as a precondition for their licensed use by another party, could benefit groups such as photographers that are concerned about current infringing use. Reducing incentives to infringe is a desirable feature of an orphan works scheme.
No work should be published without the permission of the rights holder/creator. Therefore any scheme, which would lead to the identification of the creator of an image, would, subject to examination, be welcomed. That there are millions of created works without identified creators/rights holders currently on the World Wide Web alone is understood, most of these due to the destructive action of software as previously described (Facebook, Flickr etc). Providing a means by which created works can be put with authors is a positive step, but this should in no way be connected to copyright legislation, nor should it be incumbent upon creators to fund such a vehicle.
A UK/European Government sponsored database of works where all created works could be stored would be a positive thing. This could be shared around the world, and perhaps link with other similar government sponsored databases. Orphan works as previously described could then be greatly reduced, and the pains of identifying authors prior to requests being made for publication/use much reduced.
However, such a database should by no means be used as a vehicle to allow publication of created works without the creator’s permission, nor should it be a short cut to cheap imagery.
Page 45 Education about rights
128. Education for users and consumers is important to developing a copyright system where people are responsible users, aware and respectful of rights. Education measures could be deployed at the point of purchase of hardware that could enable copyright infringement education for schools and other educational institutions, for example. Education is a way to tap into the latent willingness of people to pay and to strengthen the deterrent of piracy.
Education about copyright is fundamental to the success of any improvement in the copyright law.
All citizens are potential creators, and most children are actual creators and many publish their own work habitually using social networking sites, web sites etc. Children learn Information technology at school and the World Wide Web is part of their universe. It never fails to amaze me how ignorant, schoolchildren today are about copyright, and what is more frightening is how ignorant so many of their teachers are. Copyright should be taught at primary school along with basic keyword skills.
Children have the ability from a very early age to access music, photographs, and other digital wonders, learning about copyright, and control of their own published work is an absolute essential. Why is it not already being done?
Page 46 Enforcement of rights
131. Enforcement is often viewed by rights holders as the solution to infringement which should be utilised more effectively. Views from those outside of the creative industry tend to be mixed. There is a concern that an over-reliance on enforcement will stifle innovation within the creative industries. Some consumers suggested that rights holders were seeking unrealistic returns, i.e. that prices were too high relative to other goods or services. 135 Representatives of all stakeholder groups believed that both education of the public on the financial and other harm caused by piracy and the development of attractive new business models helped win customer buy-in to consuming creative content online.
How on earth can enforcement stifle creativity? Enforcement surely will make it easier for creators to create because their rights are upheld, and it will be easier in the future for them to create because they are less likely to suffer from theft, and are more likely to achieve payment. Indeed if all users paid the proper rate for the work that they use then in many cases those rates may well come down because more money ends up with the creators!
132. Despite these opposing views of stakeholders about enforcement it is however acknowledged by most that piracy is commonplace: it is easy to access high quality content, the risk of detection is regarded as low and it is claimed this is seen as a victimless crime. The small sample of members of the public who engaged in full debate were clear that changing the perception that piracy is a victimless crime, by showing that authors suffer, is an important factor in changing public attitudes towards piracy.
Educate and enforce!
Wednesday, 18 November 2009
For some time now we have been waiting for the Government to ‘announce’ its strategy with regard to copyright and orphan works. There has been much debate about the efforts in the United States to introduce an Orphan Works bill, and huge concern about the knock on effect of such a bill to ordinary creators such as independent freelance photographers (both editorial like myself and otherwise). I last talked about this in my blog in January (29th Jan 2009), and with the Queens speech due this afternoon it is time to revisit the subject.
The Gowers review was published a while ago now
Then, we had the Copyright Consultation document from David Lammy. I responded to this myself as did many others, and I also took part in an online debate held by the British Journal of Photography along with Paul Brown, the managing director of the Mary Evans Picture Library and chairman of the British Association of Picture Libraries and Agencies, BAPLA's executive director, Simon Cliffe, John Toner, freelance organiser at the National Union of Journalists, and Rupert Grey, consultant in the Litigation Group at media law specialist Swan Turton Solicitors
and after this in June the Digital Britain report.
The latest document“© the way ahead, A strategy for copyright in the digital age”, was published on 28th October, and it is this document that I want to start looking at.
It is a long document so I am going to take it in sections, looking first at the summary and Introduction.
© the way ahead
Initial Response by Pete Jenkins
Please note , the 'Indented' paragraphs in italics are quotes from the document.
David Lammy says:
We are, however, at a crossroads in our relationship with our new digital world.
Digital technology means access to information on a vast scale. It has changed the way people publish and consume works. It allows anyone and everyone to make and distribute quick, cheap, and totally accurate copies. Consumers have reached out to grab the potential of this new technology. The copyright debate, once in the hands of the professionals of the creative industries, is now a debate for everyone. Businesses and governments have seen the challenges but have been slow to respond.
Although creative industries and governments are trying to catch up with the digital world, there is more to be done. We must push harder. Policy makers need to get ahead of the game. They need to recognise the need to work with an awareness of what consumers are doing and want to do. And they need to recognise that no single national government has control of the agenda.
We must now work within the international and European framework to ensure copyright keeps up with technology and consumer behaviour. We have to make it simpler, and make it address the concerns of all those who have an interest in the copyright system: business, consumers, creators, and copyright owners.
(c) the way ahead: A Copyright Strategy for the Digital Age is a recognition that the world we live in has changed. This report is the latest part of our ongoing response.
Page 1 – Executive Summary.
Findings from the Copyright Strategy
For the first time, individual citizens have the means to create, use and distribute copyright works through digital technology. People want to make use of these opportunities but in doing so it is almost inevitable that they will violate copyright. This mismatch of expectations is significant because neither the law nor people’s attitudes is easy to change.
Copyright is also complex for users. Much of this complexity can be addressed by rights holders and how they administer their rights. This would have many advantages over changes to the law, which can be slow and risks adding to rather than reducing complexity.
Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem. But fair compensation for rights holders would be required. Action at a European level would be necessary.
Processes for licensing copyright works need to be improved. The Government has already brought forward proposals in the Digital Britain Report, which noted problems with access to “orphan works” and the potential benefits of extended collective licensing in tackling some of these problems. Non-compulsory registration systems may also help rights holders manage their rights more effectively.
Creative industries face real challenges in monetising content. Firms must continue to evolve products and services to offer consumers something they value at prices they are prepared to pay. Education and enforcement can support these efforts but cannot tackle infringement of copyright on their own.
Pete Jenkins response:
It is positive to see that we all understand that everyone is or has the potential to be a creator. More so now than ever before. Whilst the public as well as specialist creators have always had access to pen and paper and have been able to create works, whether they be written or illustrative, the digital age whilst not actually making access any easier (what can be easier than a pen) has made the publication of such works more accessible to everyone who wants to take advantage of it. However, as has been said many times before, the mere ownership of as pen does not make one a prize winning author. The mere act of publishing itself does not convey any kind of quality on what has been published.
There is a big difference between copying some one else’s created works and publishing something that has been worked on and crafted onesself. Just because it is easier to copy and paste, does not mean that one automatically has the right to do so.
Ease of access is a wonderful thing, but this should not mean that publishing on the web or elsewhere justifies any kind of anarchy.
Many, (not all), citizens make an assumption that because something has been published that it is automatically in the public domain, and that therefore it can copied and published further at will. There is also the thought that because something has been published on the web site of a large faceless publishing company that further copying is not hurting anyone, and that in any case such theft is somehow justified because of the size and wealth of large faceless corporations.
What is not understood here, is that most creations, unlike say a packet of cornflakes in a supermarket, are most likely the product of one persons labor and creative process, and not necessarily part of a faceless corporation conveyor belt.
Many, (if not most), Creators make a living by selling licenses to reproduce their product. It has to be a license rather than outright sale, as outright sale to just one party would deny the rest of the population access to that work. A scheme of licensing means, (or should mean), that the creator retains ultimate control of his or her, created work. This is important to insure that the work is not used inappropriately, as well as ensuring a small income stream for the creator.
Contrary to the general perception of the population, creators are almost exclusively on a low wage, and do not make a lot of money out of their skills, indeed, as has been said many times before, freelance editorial newspaper photographers for instance are paid the same today in 2009 (or less), than the received for the same work in 1994. This is not healthy for creators, and casts a shadow over the commitment of those publishing organisations that pay these fees.
It has been said many times in this document that copyright is complex. Exactly how is it complex? One either has obtained permission to use a work or one hasn’t. How is this complex? How is obtaining a license to use an image any different to obtaining the hire of a car. Indeed, observers might say that in this respect copyright is a far simpler process, yet there is no general outcry over either the cost or the process of car hire.
Photographers are very concerned by the idea of,
Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem.
Why is it so important for consumers to have a right over created works that they have made no contribution to the production of? And how can this be deemed fair? Why is there a requirement to remove the need to seek permission? Is this not a basic moral courtesy in our society? And does not removing the need to seek permission, re-enforce the falsely held belief that individuals can do what ever they want with someone else’s created works, regardless of context and intent?
The mismatch of expectations problems so described come from a lack of education. Society has had handed to it this wonderful publishing access opportunity (digital publishing and the ‘world wide web’), but has had little or no education in how such an opportunity can be correctly used, and the rights and wrongs of publishing this or that work.
Reading, writing and arithmetic are the core subjects in this country’s educational system, understandably one of the envies of the rest of the world, it would seem simple common sense in the 21st century to include in the core curriculum, copyright and publishing. If we taught our children and our society how to publish correctly, not just how to use a keyboard and access the ‘world wide web’, many of these confusions and misconceptions would no longer exist.
It is unclear to me as a professional photographer of more than thirty years experience, and indeed to other creators, when the matter is discussed in professional forums etc, what is wrong with the current process for licensing copyright works. One who wishes to publish seeks permission from the one who holds the rights. What can be simpler than that?
Creators are aware that users of imagery such as large publishing companies wish to simplify the process, by saying (say) that one small payment to a licnece holder should then entitle the publisher to publish that work wherever and whenever that publisher chooses . But this can be identified an attempt to get work cheaper and exploit the creator, rather than simplifying any publishing process as such. One must be careful not to confuse corporate greed disguised by a wish to simplify this or that process. Any attempt to simplify a process which actually work very well in it self should be made very carefully and not just be driven by the greed of those who want creators work cheaper or free, and that goes as much of large corporations as it does for individual members of the public.
Access to ‘orphan works’, as they have been described in this document, are of huge concern to individual creators.
If one doesn’t know a child’s name is the child therefore an orphan? Of course not. The same goes with a created work. There are so many situations where, especially publications authors details can be separated from a created work that alarm bells ring very loudly for any creator and supplier of work to publishers.
- In the past contact details would be attached to the back of hard copy images via a piece of paper glued in one corner. If that paper became removed, did the work become an orphan? Of course not.
- Later when images were scanned, contact details would be added in an extended canvass field below the actual image itself. But in the reproduction process this canvass addition to the visible image was cropped out, and often the image would be resaved without the caption field leaving the saved image unidentified. Did this make the image and orphan? – NO.
- In the age of fully digital imaging with photographs captured in a digital format photographers go to great effort to complete meta data panels within the digital data of the image. No image should therefore be an orphan. However, in many cases on uploading to the World Wide Web, storage in certain data-bases, all this electronic tagging data is removed. Do these images then become orphans? A ludicrous assertion.
Many of the so-called problems with orphans are caused by poor storage, poor handling and in some cases deliberate intent. The idea that a non-compulsory registration system might also help rights holders manage their rights more effectively, is tantamount to saying that it is all the rights holder’s responsibility. Rather than suggesting that rights holders should be put to more expense in time and financial cost that registration in systems that do not exist, creators would suggest that actually removing the contact details from digital files should be made illegal, and effectively enforced by law. No creator has the ability to stop 2nd and 3rd parties abusing images by removing copyright and creator metadata and details, but those who handle images can certainly exercise responsibility. This does not need any new system to be put in place, nor need it impose any cost on creators.
Whilst it is true that,
Firms must continue to evolve products and services to offer consumers something they value at prices they are prepared to pay. Education and enforcement can support these efforts but cannot tackle infringement of copyright on their own.
No creator who has given this any thought would expect ‘education and enforcement’ to be the answer to everything, but currently the balance of power is very much in favour of the abuser of creators rights. Education in copyright and the publishing and creation of works is pitiful, and lacking in most cases. There is a huge area of improvement possible here, and it would seem a simple matter to introduce it into the core curriculum. Indeed, one would have thought this essential in our digital age.
As for enforcement, this is currently regarded as a joke by most creators. Most individuals do not have the time, finance or legal skill to pursue copyright infringors in the courts, courts themselves who in many cases do not always understand the process involved. And even when cases are won, it is usual only possible to recover the amount that should have been paid in the first place, with no punative damages. Such a process actually encourages copyright theft rather than preventing it. Some larger organisations have recently had some success in pursuing copyright thieves, but they are able to afford processes and recovery agents that sole proprietors simply do not have access to at this time.
Actions and recommendations
Based on these findings, the Government’s intentions are:
- for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
- for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;
- for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;
- for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
- for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.
- UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P fi le-sharing; and
- A willingness on the Government’s part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.
Pete Jenkins response:
There is no other obvious response to:
"for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;"
other than to applaud the statement. This is exactly what creators want to hear. It will also be of huge value to the end user, and indeed, clarify matters for the agent or publisher. However, such good intentions need very careful monitoring.
“to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;”
would seem to require more than a little clarification. Especially with regard to ‘out-of-print’ books. The mere fact that a book is out of print does not make it an orphan, and indeed the very notion seems to distort the whole notion of orphan works. A three-hundred-year old book that is out of print, is a different matter to a book that is out of print for merely five years, and when the author is still alive and identified.
"for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age;"
Educators and researchers should not be exempt from copyright legislation and laws. That they should be allowed ‘some’ access to material is not to be denied, but exemption from copyright laws is going to far. Any blanket exemption is tantamount to inviting abuse. It would certainly be innapropriate for educational organisations to obtain material under an educational exemption, and then use this very same material for commercial gain. Before any special cases are made for education, it would seem prudent to ensure that that same educational system is fully informed in copyright matters and education those in its charge – both pupils and teachers.
"for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.”
Publishers and big businesses are continually trying to simplify the copyright system, by attempting to introduce rights grabbing contracts to the creators who supply their imagery, but these are not attempts to simplify any process, or to improve copyright licensing but are aimed solely at making imagery cheaper for the publisher at the direct expense of the creator. This sort of business skullduggery should be directly opposed by this legislation and should not be encouraged in any way shape or form.
- UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and
- A willingness on the Government’s part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.
Pete Jenkins response:
Few creators perceive that there is currently a problem with ‘orphan works’, and even fewer believe that there is a need for copyright legislation to be evaded or avoided.
There is severe reservation amongst creators – editorial photographers in particular about ‘extended collective licensing’ being a method used for collecting payments for use of so-called orphan works. Just because a work has not got a clearly identified author immediately identifiable does not mean that the work is out of copyright, nor that an author is not identifiable with a little bit of effort. How exactly can collective licensing by its very definition a method of licensing for small amounts of uncollectable fees, be used to collect licensing fees? Orphan works simply do not fit into this remit of a collecting society. Creators want a proper fee for every use of their work, in the same way in that they wish to retain control over how their work is used. There are no ‘blanket fees’ for licensing created works, how could there be? Orphan works are totally different from photocopying licences – something which collecting societies work incredibly well in collecting on behalf of creators. How can collecting societies negotiate every individual license, which is what creators have to do, quite rightly so. Most editorial photographers simply do not see the connection between the two issues.
Model contracts and clauses for the licensing of created works do exist, and there does not seem to be a deficiency in this area.
“commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.”
Again, is it in the best interest for creators to allow unlicensed use of their work, even for consumers? Consumers are after all the end-user. To give them free rein to use created works as they wish seems unfair to creators, and will likely cause even more copyright infringements.
Is not a ‘mash-up’ the use of two or more created works to produce a third hybrid work? Why is it deemed innapropriate for the original creators to be asked if they give permission? It would seem essential if copyright is to truly work.