Thursday, 19 November 2009

© the way ahead: A Copyright Strategy for the Digital Age II

Part 2 of an analysis Looking at the main part of the document

Indented paragraphs in italics are quotes from the

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.

Page 20

Rights Holders

  • 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.

Page 23

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.

Page 28

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.

Page 31

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.

Page 34

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.

Page 39

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!

Member of: The National Union of Journalists

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