The Royal Photographic Society, that esteemed organisation basically aimed at amateur photographers has launched a new initiative which I am sure will be received with some trepidation by its professional members, especially those based in the South West who make at least some of their living documenting their region.
RPS is asking its members to give images to the South West Tourist Board.
Why? photographers are asking. An exhibition perhaps, sponsored by the RPS.
Oh no. the reason is simple.
Our primary objective is to launch an advertising campaign based on the line "the season doesn’t end with summer". This will be online primarily, but hopefully tourism partners will commit to carrying this theme to a wider audience via: * static displays at major motorway service areas, * features in in-flight magazines, * a media campaign taking in a range of national newspapers, specialist magazines and trade shows, * static displays at major motorway service areas, * features in in-flight magazines, * a media campaign taking in a range of national newspapers, specialist magazines and trade shows,
That is to say, maximum exposure at minimum cost. A cost that will largely be borne by the professional photographers who would normally be supplying images. Now is that fair? Is it ethical?
If it is good enough for the South West Tourist board, where else will the RPS turn its attentions? The Olympics perhaps.
“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”
Moral Rights , What are they, Why we need them, and why they are important?
(Whenever the words creator, author, photographer or similar are used they should be read as non-gender specific, and to denote all genders as appropriate.)
Moral rights are frequently misunderstood by many people, especially those who don’t think they have any to defend. Indeed, many creators who actually do have a vested interest in their own moral rights often state that it is not an issue - mainly because they don’t understand the concept or the facts of the matter. But in today’s world of ‘Facebook’ and ‘Flickr’, ‘MySpace’ and ‘Twitter’, Internet based social networking makes everyone a creator, and everyone a publisher.
How would you feel if a major newspaper took your image from your Facebook site and published it, but didn’t give you a credit or pay you?
How would you feel if an oil company followed your Twitter link and took an image of yours and used it in a ad campaign and didn’t ask you first?
How would you react if the BNP took a personal image from your website and used it as part of their party literature, didn’t ask you, didn’t credit you and didn’t pay you?
So what are ‘Moral Rights’.
According to the Intellectual Property Office, (IPO) the Government department that deals with the matters of copyright in the UK:
“Moral rights give the authors of literary, dramatic, musical, artistic works and film directors the right:
·to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public.
·to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director.
In contrast to the economic rights under copyright, moral rights are concerned with protecting the personality and reputation of authors.”
In the UK, (currently), as is suggested in the IPO explanation, there are a number of differences between copyright here and say in Germany and France and other sectors of Europe. In the UK, several publishing arenas (most notably Newspaper and magazine publishing and some book sectors) are classed, as an exception to the general rule and the publisher is not obliged to recognise the creator/author.
In addition, in the UK, unlike other areas of Europe, the right to be recognised as the author of ones own work has to be asserted, and is not automatic. In the UK a creator has to demand his or her moral rights and cannot expect them as in other countries to be applied automatically.
Further to the IPO definitions, we can add three other moral rights which are recognised widely other than in the UK, they are:
The right to have a work published anonymously or pseudonymously.
The right to decide whether a work may be used or not.
The right not to have work falsely attributed to you.
So why do we need ‘Moral Rights’?
Whilst moral rights are distinct and separate from economic rights they are becoming more and more important and interwoven. With clients becoming more and more cost-conscious, and the business of photography (in particular) becoming more competitive, being recognised as the author of ones work becomes more important than ever before.
Indeed, it would be incorrect to say that a mere credit alongside a photograph whether on the web, in a book or magazine, or in a newspaper can be used in itself to pay the mortgage, the rent or buy food, but
it is true to say that having a credit alongside ones work raises awareness of ones abilities as a photographer and this can be very useful when acquiring clients.
With the proliferation of the Internet (World Wide Web) in publishing today, where more and more imagery is used than ever before, having a credit alongside ones work has several functions. Not only is there the already mentioned ‘raising ones professional profile’, but also in a climate where too many people believe erroneously that something published on the web is in the ‘public domain’, having an acknowledgement of an author or creator does go some way to asserting ownership, and it becomes less easy for an infringer to claim, "I didn’t know".
Orphan works have been raised as an issue in recent times with legislation proposed both in the United states and in the UK, and although each time the legislation as proposed has been rejected, it is clear that at some point in the near future orphan works will be legislated for.
The current accepted definition of ‘Orphan Works’ is that they are created works for which for whatever reason have become detached from their creator, and now although they may well be in copyright and owned by someone, because the author cannot be identified, their status is in question.
Because it is an 'orphan', does not mean that it does not belong to a creator, far from it, as copyright extends through the life of an author and for seventy years after their death, this means that the huge majority of photographs that have ever been created are actually still in copyright, and to use them permission must be sought from the copyright holder.
Just because at one instant in time the creator/photographer/author of a work is unknown, this does not change the status of the copyright of an image or work.
Why are ‘Moral Rights’ important?
They way that photographs and other created works are published is through a licensing system. This is important, because of the very large number of ways that any created work can be used.
The licensing system allows for a relatively small fee to be charged say for the use of an image at a small size in one issue of a magazine or newspaper, and a much larger (justified) fee for a work that is published in a nationwide poster campaign. It clearly makes sense for there to be a difference in the fee charged for these two very different uses, and this is the great advantage of licensing for the client/user/customer. One pays for the use.
If the use is small the fee is small. If the use is greater, so is the fee.
To be recognised as the author of ones own work is fundamental to the production and use of any artistic work.
But it isn’t just a matter for professional photographers. Amateur photographers whether serious producers or just those exchanging images in social media need to have their moral rights recognised as well.
It is now well documented that UK media (and others of course) trawl social media sites looking for images that they can incorporate in their news coverage. This is not just to widen their coverage but as an active way of reducing costs. There are numerous documented cases where images have simply been lifted and published. No permission sought, no credit given to the photographer and of course no fee paid.
UK publishers are presenting contracts to photographers which strip them of copyright, economic and moral rights, often for the same or lower fees than were previously paid for single use rights:
The Daily Mail has reaffirmed that it doesn't infringe on photographers' copyright after it was caught using four images without their authors' authorisations
Bauer Media, one of the UK's largest publishing companies, is rolling out new contracts to its freelance photographers, grabbing 'in perpetuity' all of their copyrights and moral rights.
Agence France Presse filed a complaint against Haiti-based photographer Daniel Morel, claiming he engaged in an “antagonistic assertion of rights” after the photographer objected to the use by AFP of images he posted online of the Haitian earthquake.
Freelance press photographers have been dealt another blow after Guardian News & Media announced it would cut its space rates by up to 50%, only a few months after it stops paying reproduction fees.
In the last few days the British Nationalist Party (BNP) have started to deliver their campaign leaflets. There are at least two varieties but they are both quite similar and their main campaigning point is against immigration. You can see leaflets delivered by the BNP around the UK thanks to The Straight Choice a website dedicated to mapping campaign leaflets. The current leaflets feature a section titled “Why we’re all voting BNP” with photos accompanied by a bit of text, presumably this is to encourage people to think BNP voters are just like you. Unfortunately for the BNP none of these voters are real and you can prove it by using web-based reverse image searches.
May 13, 2009
If images are published without a byline, whether this is in a conventional paper printed newspaper or a digital printed Internet article it can create the impression that the image is in the public domain and that no one cares about the paternity. Whilst this is a total false impression, one can see how an ignorant public who have been taught little enough of copyright can come to the conclusion. One of course would not expect those working for newspapers to behave in the same way.
Publishing without a byline is also the most common way of creating an orphan work. Newspapers do it routinely. Social web sites like Facebook and Flickr routinely strip all metadata from images as part of their operation, so even when photographers diligently complete all metadata fields with image identity and paternity this image is lost on publication. Anyone copying or downloading that image, even if they do it with every intention of contacting the photographers may find it more difficult or impossible to do so.
But it is not just large publisher, companies and political parties who find steal and appropriate images for their own ends. Individuals do it as well. See the case of Daniel Morel whose images were allegedly stolen by Lisandro Suero before being taken up by AFP.
Images can be copied from the web and re published almost anywhere. Now many photographers (especially amateurs) are quite happy for their work to be copied and redistributed, but in most case the assumption is made that the original source is attributed and a link provided. If there is no requirement for even this minimal social nicety, then even the much abused Creative Commons licensing form ceases to function.
The arguments against Moral rights.
There are those who feel that creators don’t need, or shouldn’t have moral rights, whilst ironically at the same time asserting their own rights in work that that they have assembled.
The Newspaper Society (NS), Newspaper Publishers Association (NPA) and Periodical Publishers Association (PPA) who represent publishers in the UK are very happy with the current working practice that means they don’t have to credit photographers (at all).
They argue that for employed staff, as they (the employer) supply the cameras and equipment enabling the photographer to work, that therefore the actual creator does not need a byline. Whilst current law gives ownership of the images produced to the employer, on what possible basis should the creator be deprived of recognition for producing his or her own work? There is no reasoning that makes sense of this.
As today’s photographic publishing ethics demand that documentary and news photographs not be altered or tampered with in anyway, they can only be the creation of one photographer. In the cases of deliberately altered pictures (montages etc) then surely this also must be acknowledged alongside any creator byline?
We are told (by the NS, NPA and PPA):
“Turning to Moral Rights, there are of course various exceptions to the ‘paternity’ and ‘integrity’ rights which operate where a work is produced in the course of employment; for publication in a newspaper, magazine or similar periodical; or for the purpose of reporting current events. These are all practical measures which recognise the exigencies and unique nature of the newspaper and magazine businesses. All the exceptions and qualifications are designed to ensure that the rights do not impose unduly burdensome obstacles on normal business activity. Existing models would be impossible if some of the proposed changes to moral rights were adopted, which would impact adversely on business and press freedom.”
This is disingenuous to say the least, and does not stand up to examination.
To quote Paul Ellis:
“All newspapers are laid out by automated, scripted, digital processes. Properly by-lining a picture is a simple matter of editing the layout script to extract the photographer's name from the image's IPTC. Nothing more. No "forced delegation of decisions" is needed. Our requirement is utterly cost-free to the publisher.
These people talk as if they're still in Fleet St. dealing with hot metal.”
The argument made by the publishers relies entirely on the general ignorance on the side of the reader, of the processes involved in publishing in the 21st Century.
The Publishers say:
“Often individual articles, not just whole newspapers, are the work of several individuals.”
But not photographs of course! Photographs are supposed to be published without addition or removal, so are only the creation of the photographer concerned.
They go on:
“The rationale for the disapplication of the right of attribution vis-à-vis a newspaper or magazine lies partly in the practical difficulties of ascertaining which of the individuals who contributed to the final published version of an article – researchers, journalists, sub-editors – should be accorded a by-line. It is not practical or even possible to identify and credit them all.”
Yes, publishers really do say this. If publishers are unable to keep track of a digital image presented to them, or that they have acquired, or that they have scanned themselves from hardcopy or negative, then surely that indicates a severe problem with the internal systems being used rather than a tiresome difficulty presented by outsiders that they have no control over?
We are further told:
“Similarly, a news or picture editor who is briefing a freelance reporter or photographer on some fast-moving drama needs to be confident that the key terms over rights ownership and are well established and understood in advance.”
This is true. When professional photographers supply a competently run picture desk, everyone involved understands copyright and ownership. How does competency adversely affect moral rights? This should be the very occasion when creators can be assured that all their moral rights will be upheld, surely?
They tell us more:
“We are unaware of any evidence that the current regime gives rise to any significant negative outcomes either for publishers or for contributors. Individual issues about sub-editing or crediting are easily dealt with on a case-by-case basis. Proposals to strengthen moral rights are less to do with attribution and integrity than with bolstering the economic power of those claiming them.”
Increasing moral rights so that creators are recognised as such automatically, has no adverse affect on any publisher acting in a law abiding and open manner. Many would believe that the only publisher who it would be seen to gain some sort of benefit out of deliberately withholding the name of a creator would be the sort of publisher that wished to exploit such works without the knowledge of the creator.
There is another benefit to attribution, which has not been mentioned yet, and that is the benefit to the reader, viewer, consumer, or user. Giving a verifiable by-line gives some reassurance to the user that the content they are viewing can be trusted and relied upon.
Publishers continue
“The preservation of strong copyright protection for publishers, together with effective means of enforcement, is vital under the UK, EU and global intellectual property regime. The application of moral rights would be addressing a problem whose existence is unclear and would have a detrimental effect both on existing models and on the development of newspaper and magazine companies‟ content and information services across media platforms.”
Why should strong copyright protection only be for publishers? Surely the same strong copyright protection and this includes moral rights, should be shared by both publisher and creator. After all we would not want to see one law for the rich and one law for the poor, as we know that would be totally unjust and unfair, and equally unacceptable.
The problem with deliberately withholding credits and author information from images and other work is that it immediately creates orphan works, and as we have seen with the British library, currently trying to digitise the national newspaper archive, the biggest single problem they now have is recognising whose work they are trying to digitise. As this is being done by a third party company wanting to make profit from that digitisation process and subsequent distribution, it is a necessary and understandable legal essential that permission must be sought from each and every creator. To do any less would be to totally undermine copyright across the globe.
James Murdoch has accused the British Library of acting for commercial gain with plan to digitise newspapers – the library says this is 'patently not true'
“Strengthening moral rights would increase uncertainty for publishers and weaken copyright law.”
It is very difficult to see how strengthening moral rights could possibly affect publishers adversely in anyway, especially if they are acting in a correct a publicly acceptable moral manner. Asserting all the moral rights discussed would only strengthen publications, and ensure that all dealings with creators were honest and above board, which is I am sure exactly what all publisher want in their dealings with their suppliers.
How can strengthening moral rights weaken copyright law? Moral rights are the bedrock of copyright law. Without Moral rights it is difficult to see how copyright law can work to the advantage of anyone other than the unscrupulous.
“The exception to the right to be identified as the author of a journalistic work was introduced to the 1988 Act at the last minute and in the days of hot metal typesetting. Then, publishers perhaps had cause to fear that the slug of metal bearing the photo credit or article by-line would fall on the floor and be kicked.”
Viscount Bridgemanspeaking in the House of Lords during debate on the Digital Economy Bill, Clause 43 Monday 8th February 2010
“Moral rights are currently one of the poor relations under UK copyright law. Many of the concerns about orphan works that we have talked about today would be cured if there was a proper right of attribution-a proper moral right-under UK law, particularly for magazines and newspapers, which are currently exempted.”
Lord Clement-Jonesspeaking in the House of Lords during debate on the Digital Economy Bill, Clause 43 Monday 8th February 2010
So the Moral rights that we need to be put in place for photographers are:
The right of authorship or paternity: any user of the work must state the name of the author unless released from the obligation by the author. This right should be automatic and should never require assertion. The release of obligation should never be as the result of bullying or oppressive coercion.
The author/creator should also have the right to have a work published anonymously or pseudonymously.
The right of disclosure: the author has the discretion to decide whether, when and how the work will be made public. No one should be able to publish a work without first referring to the creator, and abiding by the creator’s decision.
The right to respect for the integrity of the work: the author may oppose any change, distortion or mutilation of his work and any prejudice to his honour or reputation, no one should be allowed to alter or change a work prior to publishing without the creators express permission.
The right of withdrawal: the author may withdraw a disclosed work in return for compensation to the publisher. If a photographer is unhappy with the use of an image within a particular publication, campaign or context, then they should be allowed to prohibit use even when the work has been commissioned.
And for these rights to work they need proper legal support both in law and with the means by which enforcement can be initiated and function. Misuses, lack of credit, deliberate or careless transgressions all need financial sanctions easily obtained and enforced. The onus on enforcement should not be left solely to the creator who is often simply not in a position to perform this function
These rights need to be inalienable, although waiverable.
They need supporting with legislation.
Countering or not honouring these rights need to be punishable within law, and this must be made easily accessible. Most creators are sole traders and do not have the finances of medium to large publishing companies. This status must not be allowed to prevent creators getting their rights honoured.
Deliberate and careless transgressions of these moral laws need financial disincentives.
The moral rights of creators are basic human rights. They are not costly to follow and honour. They are of a benefit to society, both the user and the creator. All creators are users, and indeed in today's digital social networking culture all users are also creators.
If moral rights are allowed to erode further, then we will simply find many of the benefits of digitisation which society values (rightly) so highly will be lost. As a society we must not let that happen.
A colleague asked me today, what he should be doing with a lifetime of acquired skills as a photographer working for newspapers, when newspapers were down sizing, losing staff and cutting budgets to freelances?
What answers could I give to this question, especially as we have just learned that the Mirror Group is following the Guardian, News International and others in losing photographic contributors.
A few years ago after spending all my working life supplying newspapers as a freelance I had to make the decision to carry on regardless, supplying regular newspaper clients for the same money each year, whilst my expenses increased, and in the case of regional newspapers actually for less money than a few years before, or to say enough is enough.
My business model of supplying mostly national newspapers was no longer viable.
Whilst the actual catalyst of change for me was the death of my business partner, it was clear that had that not happened the business would either have slowly expired, or maybe, if I had been lucky my little agency might have been bought out by Getty or one of the others.
The change was difficult, painful, and hard.
I left sport - my comfort zone for more than 25 years, and London where I had been based. I ended up going part-time for two years – in Nottingham.
When I came back to full-time smudging it was not as a smudger, but as a photographer supplying editorial imagery to businesses, non government organisations, and the local authority. I also do a hell of a lot of stock.
From 2003 - 2009 my business improved year on year, quarter on quarter, although the overheads are somewhat scary compared to say 1994 - (the last year I experienced a proper increase in pay from a newspaper).
This last 18 months have been very difficult, and my gross has remained static. I have had to continue re-inventing myself, my work and finding new clients all this time, and am doing so today. It is not easy; there is no magic spell. Many of us (photographers) will not make it through to retirement as full-time photographers; that is clear. Statistically I suspect those of us who have been in the industry longest will have the best chance of weathering the difficulties.
The one thing I am certain of, however we survive, and to whoever we manage to sell our work, few of us will find that newspapers form a majority of our clientele going forward. The Guardian, The Telegraph, News International, Manchester Evening News, Liverpool Post, and now Mirror Group Newspapers all have either dispensed with staff photographers or cut back to no more than a handful.
Freelancers whilst used in droves twenty years ago, are now hardly budgeted for. We have to get real, and have to understand, that whilst we may be photojournalists by trade, training and profession, we simply aren't going to be supplying newspapers going forward.
I spoke at length to one of the local universities here in Nottingham a few weeks ago, and virtually none of those who get degrees go into the photographic industry, and none of them become photojournalists, (can't imagine what they do with all those Photography degrees).
"Where do I go now?" My friend asked.
Newspapers are not the only outlets for editorial photography.
In the last fortnight, I have photographed a garden centre and an Aikido Dojo for web sites and promo literature. I have supplied a German photo agency with hundreds of stock images, I have supplied imagery to the local council for their brochures, edited hundreds of images for UK based photo agencies, supplied images to several unions for web use and staff magazines, copied a 1950s photo album and made it into a photo book, resurrected several 'turn of the century' photographs, and reprinted them for private use.
All of these things have utilised my skills as a digital editorial photographer, none of these clients is a newspaper.
Wow, what a day, only just early afternoon and I find myself allied to the most unlikely of people.
James Murdoch, chairman and chief executive of News Corporation, Europe and Asia, opened UCL’s Centre for Digital Humanities last night with a lecture that attacked the British Library for its plans to make a digital archive of over 40 million newspapers available online.
This follows up the original announcement in October last year that the project was going ahead, although as I am sure wyou will notice as I did that this was supposed to be being funded by a not insubstantial £33 million committment from the Government, and no mention was made of monet making ventures.
Whilst I understand why the British Library want to move the National Collection, and of course why they want to digitise it, and in addition many would agree that the digitisation of such an important archive is to commended, I would question the way that it is being done.
Bringing in Industry so that this is a cost free exercise for the BL, well I understand the motive too, but is it actually in line with the altruistic nature of the project?
I would go further; is it legal? For myself, as one individual photographer who has been supplying UK newspapers since the mid-seventies, I am aware that I have many (scores of) thousands of images represented in these newspapers, that the British Library is prepared to give to a third party commercial concern, (are DC Thompson doing this out of concern for the nation, or because they see a money making opportunity here?), it is my images and those of many other photographers like myself, and the words of many writers that are going to be ‘sold’ by this new enterprise to pay for the scheme.
James Murdoch is correct to say that newspapers lodge their works with the British Library, and that at no point in the past has it been made clear that these works would then go on to produce revenue for the British Library, nor were they (the newspaper publishers) asked. The British Library is not a charity shop, and if it is to become one then works have to be clearly donated, not appropriated via the back door.
What James omitted to say, is that a very large proportion of the works that are published in British Newspapers, do not belong to even the publishers, and they (the publishers), have themselves (quite rightly) to seek the right to re-use published material after first use, owned by freelance photographers and journalists. At no time have individual creators like myself been asked whether we wish to donate our material to the British library for it to launch the first (of many?) money making projects, on the back of our created works.
What will make this even more difficult, is that even if each and every creator is to be asked, (not just the publishers), if permission is given, and I am sure that many will grant permission; but even if every creator is to be asked, because at their own insistence the 1988 copyright act excused newspapers publishers from being obliged to credit authors and photographers, there are hundreds of thousands of images for which it will be less easy for permission to be given, even though many of those authors are around today and still producing created works.
One can see now why the British Library and others were so keen to get the commercialisation of orphan works on the agenda of the Digital Britain Bill last month, and why creators such as photogrpahers are so thankful that Clause 43 which would have legalised this move by the British Library was struck out of the bill, (thanks in large to the Conservative and Liberal Members of Patrlaiment who opposed the clause on our behalf).
But hold on. If Clause 43 was lost from the Bill, whay are the British Library carrying on regardless. Have they been lagging behind on current events?
Or has somebody forgotten to tell us somthing.
And no British Library, you do not have blanket permission from me for you to sell or lend out my works for pay, without my specific permission. And before I grant that permission I want to know chapter and verse please.
Here we are at the start of a new Parliament, and we can be forgiven for thinking that all that nastiness with regard to our copyright and Clause 43 is long gone and behind us.
But no, regrettably that is not the case. The BBC, not an organisation to sit on its hands, is out of its corner and probing, already pitching for the next round of copyright attrition.
Before I continue, I believe that we all have to understand the difference between photographers, organisations such as the BBC, News International, and the end user or consumer, the reader and viewer. All of us are links in this chain, in some cases, a photographer producing images will also be a consumer, not necessarily of his or her own images, but of other creator's work (images, music, or perhaps written material).
Creators - These are the people who actually make the image, the music, write the books and articles. These are the people who (professionally) need paying for the time, effort and equipment that goes into making the works that we all consume. The majority of these creators are either sole traders or small businesses, perhaps employing one or two assistants directly, and probably hiring, renting, consuming in the course of the production of their work. However, not all creators are independent freelances, there are still a large number of creators who are employed and the work they create during the course of their employment belongs, or the intellectual copyright, currently belongs to their employer. In these cases the creators have few if any rights at all. All of the works created by these creators, freelance or employed, are covered by the current law which protects copyright for the lifetime of the creator and for seventy years after their death.
The Users, Exploiters, Manipulators, Dealers, such as the BBC, News International, GNM - These are the (mostly) large corporations, companies and businesses that deal in imagery, in most cases to enhance their own products, or who put together collected created works and sell them on. Whilst these exploiters do frequently create their own works through the employment of creators, more and more of the actual creating is left to freelance individuals and small companies.
The Consumer - who is arguably the most important part of the chain, as without the consumer there would be no professional reason for a creator to create, nor a reason for the 'Users' to use. The consumer buys the product, surfs the Internet, reads the book etc.
So why does the BBC want to change the laws around copyright so much? For creators it is simple, we want to enforce the existing laws and beef them up a little. How many people, consumers and creators realise that (in the case of photographers), we have to assert the right to be recognised as the authors/creators of our own work? This should be a simple human right. Why should we have to insist on a credit alongside our images? Just look at the site and piece I am referring too, and note that although the 'Stuart Franklin' picture has been credited to his agency Magnum, there is no mention of the photographer of the second image of the 'Globe Theatre'. (This incidentally is now an orphan!) Stuart should also have been personally credited for his iconic image not just in the text.
How many people know that even if we do 'assert our rights to be recognised as the authors of our work', that in the case of newspapers, magazines and many books, the publisher is under no obligation to recognise these rights. UK newspapers and magazines publish - deliberately - thousands of orphan images every week. And because their work is not acknowledged, how many photographers find that they simply do not get paid by publishers who have used work kept on file, and just sit back and wait for the photograpaher to send an invoice? No publisher should ever be just allowed to publish a creator's work without the express permission of that creator and without proactively paying for the right to do so.
How many users and consumers realise that organisations such as the BBC, (totally against the spirit of all the copyright legislation we have) routinely insist on stripping the creator of all rights that they have - moral rights and commercial rights, on the 'give us everything or we won't use you' stick (not carrot and stick, just stick and stick). It might be more palatable for the humble creator if the BBC and other large media corporations were to pay extra for the privilege of obtaining all these extra (and commercially lucrative) rights, but they don't, fees have remained static for over a decade, (whilst costs have more than doubled, let alone taking into account inflation).
All of us are affected in the current recession and as a result of the banking crisis and ongoing cut-backs, and need to save. As budgets are cut by the large users, smaller operations find themselves losing work and clients, or at the least those same clients with the lower budgets, insisting on more productivity for, (usually), less remuneration. In a cut-throat business, where there is a lot of competition, and ironically, a shrinking market despite the huge expansion created via the Internet, creators can't cut their costs any further.
The BBC for instance has started a shift from wholly owned content to taking content from freelances and small companies. This has an immediate benefit for the Beeb in that employers costs are slashed in one easily achieved stroke. But this creates a new dilemma for the exploiters, (particularly the BBC). By using 'freelance' talent rather than 'employing' it, the overheads and costs are hugely reduced. Bullying in the marketplace keeps the cost down of using those created works, it is often quoted quite correctly that the National Newspapers (for instance) have not increased their commission rates for photographers in sixteen years, (looking at my own receipts and talking to other photographers, suggests that this really is the case). All this is good for the exploiter, so where is the dilemma you ask?
The costs have been reduced, freelances are kept on a low fee, but what about exploitation of that work? Newspapers and the BBC want to be able to use that content across multiple platforms. Wholly owned content can be used freely, legally freelance content can't. Newspapers are producing websites, and the BBC publishes books, magazines and websites; for these big corporations it is tiresome to have to pay content providers each time they want to reuse content. They want to save manpower and cost by simply being licensed to use the material as often and in whatever manner they wish. This should be good for the creators as more licenses should mean more pay. But no, that is not how the users want the system to work. They want everything. The easiest way for them to do this is to trample all over the rights of the creator and just insist on 'give us everything' and demand a complete rights transfer. Totally against the spirit of the 1988 Copyright Designs and Patent Act, the Berne Conventionand the WIPO Copyright Treaty
In consideration of the payment of the Fee, the Freelance hereby assigns and otherwise agrees to assign to the BBC absolutely and with full title guarantee, and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have assigned and/or agreed to assign to the Freelance absolutely and with full title guarantee all IPRs (both existing at the date hereof and in the future) in any Product(s) in all languages throughout the Universe for the full period of such rights (including all rights to renewals and extensions thereof).
The Freelance hereby to the extent permissible by law, waives irrevocably and warrants that any individual, agent or sub-contractor engaged by the Freelance to assist in providing the Product(s) and/or Services have to the extent permissible by law waived irrevocably the benefits of any provision of law known as “moral rights” (including without limitation any right of the Freelance, the individual, agent or sub-contractor under sections 77 to 85 inclusive of the Copyright, Designs and Patents Act 1988 and under any resale right arising from EU law) or any similar laws of any jurisdiction in which waiver is permissible.
The Freelance hereby grants the BBC a non-exclusive, royalty free, irrevocable licence to use and sublicence any IPRs in any Product(s) under the Contract which have not, for whatsoever reasons, been assigned under this Clause 17.
The Freelance hereby warrants that there are no potential, threatened or actual claims by its agents or subcontractors in respect of patents or potential patents.
Copyright law is being trashed by the large corporations at the direct expense of the creator. The BBC will only use photographers if they voluntarily give up their copyright, and then they exploit those rights to the nth degree. Many will see this as nothing more than economic bullying. It might also be seen as outright exploitation. Yes, the creator 'technically' has a choice, but 'give us your images on our terms or we won't use you ever again', in a diminishing marketplace becomes a very difficult choice.
Diminishing marketplace? How can that be? There are more images used now than every before in history. The Internet alone uses uncountable numbers of new images every day. But with Publishers and corporations employing fewer staff to create, there are more freelances out there. And with colleges and universities churning out more students every year onto the marketplace, than there are places for them in industry, (more it is said than there are places in the industry). And combine that with the perceived ease of access to digital imagery, (every owner of a digital camera, seems to think that this enables the user to produce the imagery of the thirty year professional), we can perhaps begin to see where some of the problems lie.
Publishers are keen to exploit today's marketplace, and are currently doing so against the spirit of international copyright. The next step, and this is what we are currently seeing is an attempt to change the law so that what at the moment is merely immoral and reprehensible, becomes legally acceptable.
We accept your contribution on the basis that you agree to the terms set out below ("the licence") and grant us irrevocably and unconditionally the following rights to use, publish, transmit or license your contribution throughout the world for the full period of copyright in your contribution including all renewals, reversions, extensions and revivals of such period.
They don't demand 'Copyright', but they demand the right to behave as if they have!!
Going back to the BBC piece:
"The issue of copyright has to strike a delicate balance between protecting the creators of music, words, or photographs and the dissemination of such material to a wider public. On the one hand, you want to ensure that the creators get paid for what they create. On the other, if copyright protection is too tight then dissemination of material becomes too restricted."
This sounds very reasonable doesn't it? Well it does until you actually look at what is being said and who says it, and what the actual facts of the situation are.
I would start off by questioning this 'delicate balance' idea. It isn't that delicate at all. It is quite simple. An artist creates a work. He or she then licenses that work, usually through a middleman, whether it be a recording company, the BBC or a large publishing corporation. The work is then licensed to be distributed or used through that facilitator. The license will outline the terms of distribution or use, and the return that the artist may expect. Nothing difficult about that surely.
The keys words here are "the dissemination of such material to a wider public" which is controlled by our large corporation. That corporation can easily work within the terms of the contract between it and the creator. A clearly defined agreement tells the user what rights it has and also protects the creator. It is in the interests of the user of the created work to smudge the definition of copyright, because that can mean greater exploitation for less outlay, something that currently many of the larger corporations appear to be doing by economic force.
This in itself doesn't affect the consumer, who is usually totally unaware of the battles going on between creator and the middlemen. The only loser is the creator. The loosening of the Copyright laws will only be at the expense of the creator, the party already under the greatest pressure. There is no advantage to the creator at all, in fact exactly the opposite. The net gain will be by the middlemen, not the consumer, and at a direct cost to the creator.
Copyright has remained largely unchanged since 1988. The users and middlemen have certainly suffered no loss or restriction and none have yet outlined such loss. Nor have consumers suffered. That publishers choose to put so much more content on the Internet on a basically free of charge basis has been a direct benefit to the casual consumer. The problem for the creator is that the publisher wants to pay little or nothing for that free content and wishes it to be made available by the creator for free, and often at the cost of the conventional publication that it may well replace.
Stuart Franklin when talking about images is quoted as saying:
"We know exactly who is drawing photographs off our web site, we know who is downloading them and who has access to them."
Which suggests that he is talking about all images copied from the Magnum website, but actually what he is referring to , if you listen to the initial interview(BBC Iplayer so it may not be there for long), are clients registered on their site and legitimately downloading images, and indeed in the original interview it certainly sounded to me like he said downloaded, rather than 'drawn', which in any case would be a strange word for a photographer to use when referring to websites.
As it stands at the moment, it is very difficult indeed to log who copies an image from my own website or any other for that matter. What can be done however is use software programs to trace images used elsewhere on the web that might belong to one. Large organisations such as Getty use Picscout, and recoup the not inconsequential cost by suing copyright infringers.
The reference to 'if Shakespeare's works were still in copyright' seem pointless. As he died over 400 years ago his work is well out of copyright and therefore in the public domain. If he were alive today, he would be taking advantage of his undoubted talent and exploiting his works commercially, hopefully being dealt with fairly and not having publishers demand all rights to his work - which would indeed be a travesty!
Olivier Laurent's comments are interesting, but it is unclear to what he is referring to from the quotes extracted here, and indeed listening to the original broadcast doesn't help us much either. What industry is he referring to exactly?
Presumably it can't be creators as such because we have no control of the web. His comment:
"Twenty years ago you cut pictures out of a paper and put them on your wall - that would be stealing as well,"
Is not strictly speaking factually correct either. He might have a point if the cutting were exhibited in a public place as artwork, but it would not be against any law I am aware of to display a cutting on a wall in your own home for example.
William Fisher at Harvard University thinks copyright protection is too strict does he. Well he would wouldn't he, he wants to be able to copy other peoples work and enable them to be incorporated into new mashed up work. Why should this not be done be asking permission first?
"There needs to be more creative freedom," he believes. Freedom to use other peoples work that is...
He goes on:
"The current system is over-protective. It extends copyright protection to too every snapshot, every digital image - billions are being created every minute all around the world and they are all protected by copyright law. ... too much copyright protection impedes cultural conversations and cultural usage"
He continues:
"It would be better if the photographer registered any image be wanted to protect with an online registration system," he says, "and that any other work was in the public domain."
This would then mean that any image published on a personal web site on Facebook, on Flickr where the creator was not a professional and had not automatically registered his or her work could be used, by anyone, for any purpose, anywhere.
Amateurs sharing their work with their friends could not do so unless they were willing to risk it being hijacked, not just by some student copying the work to use say in a new painting or artwork, but the BBC or News International copying it and popping it into their own picture libraries for use as needed. And of course no copyright protection, means no moral rights, and no credits, and absolutely no control over where, or by whom, these images could be used. (Not just the BBC, but what about the big oil companies, tobacco companies or the BNP and other political parties?)
People like William Fisher clearly mean well, but they simply to do not seem to think through these simplistic proposals, or the possible consequences of what they suggest.
But the BBC? I bet they simply love William Fisher, simplistic proposals and all...
A photographer of more than thirty-five years experience. Previously based in London, and since 1999 in Nottingham. Pete serves on the National Executive Council of the National Union of Journalists, representing the unions 1800+ Photographers with his job share Simon Chapman.
Much of his time is spent following the ups and downs of professional Photojournalism.
Posts
