Tuesday, 30 March 2010

Oppose Clause 43 - Digital Economy Bill

With the changing environment in publishing, the gradual introduction and increase of digital imaging, the increasing popularity of the Internet (World Wide Web) and the pressure which conventional publishing finds itself as a result, it was clear that the British Government would at some stage have to look again at copyright and beef it up for the benefit of the new digital generation. After all with the popularity and availability of networking site such as Facebook, Flickr, MySpace and many others, in the 21st century every one is a potential creator. My eight-year-old son is taught to use the computer and the Internet as part of his education and also publishes items on the web for others to look at and read.

So the Digital Economy Bill was anticipated by many of us, and much of this legislation is of great credit to the current administration. However, as a sole-trader, and a creator in this ‘Digital Age’, I find a number of elements of this proposed bill of great worry to me. I have seen numerous letters from David Mandelson, and have spoken at length to the Intellectual Property Office, and I have heard all the reassurances that they make, but there are a number of issues that remain, none of which seem to have a solution, and all of which will undoubtedly cause huge problems to creators such as myself, and potentially therefore all creators whether they be professional as I am, or merely enthusiastic amateurs as most social networking creators are. All of us, professional or amateur will be affected by this legislation, and are all citizens and voters, either now or in the future (under age creators will face the same problems that those over-18 will.)

The main issue that needs attention is the part of the Digital Economy bill labelled Clause 43. This deals specifically with orphan works, extended collected Licensing and Moral Rights.

The following Organisations Copyright Licensing Agency (CLA), British Broadcasting Corporation (BBC), British Film Institute (BFI), Publishers Association (PA), Association of Learned and Professional Society Publishers (ALPSP), and Educational Recording Agency (ERA), released a statement including the following:

As you are aware, the draft legislative provisions to enable the licensing of orphan works and extended collective licensing schemes have been the subject of intense debate and detailed amendment during the passage of the Digital Economy Bill through the House of Lords.

As the Bill awaits its Second Reading in the Commons, these provisions remain imperfect. But they are a significant improvement on the original Clause 42. As a satisfactory compromise between diverse interests, they should be considered a success.

A nuanced debate of the strengths and weaknesses of the Clause is now academic. The opportunity has passed for it to be amended further. But there is still a real danger that the Clause could be jettisoned altogether, during the wash-up.

We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available is likely to result in far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors.

In what way disastrous? The publishers give us no overwhelming argument as to the benefits of this proposed legislation, other than it is a convenient way to exploit material that legally they currently cannot access. It is perhaps worth noting that the ‘creative industries’ they refer to are the actual users and manipulators of created works (all large companies and corporations), rather than the actual creators themselves who produce the work, nor the end users who view it (and pay for it ultimately).

Failure to make orphan works available for commercial exploitation will not actually affect anyone. It doesn’t now, why would it in the future?

Enabling collective licensing schemes is something that is favoured specifically by the BBC, and again is not for the benefit of either the creator, or the end viewer, but a device by which the BBC and other manipulators and users of created works envisage cutting down on the bureaucracy of using works, and at the same time cheapen their use. E.C.L. reduces fees to a common (low) standard value, and eliminates the need to ask permission for use. The most difficult to acquire, the rarest of images, become reduced in value to the most common and the mundane. The creator loses control over whether an image can be used, or indeed how much can, or should be charged. The most difficult to obtain image, taken in the most hostile environment, becomes reduced in value to the simplest snapshot.

When orphan works were first discussed, we (creators) were told there was an ‘orphan works’ problem. It was explained to us that libraries and academic institutions wished to digitally store previously published works and that many of these could not be identified. These institutions wanted to avoided being held legally liable for abusing copyright. Now few creators would argue that there is a cultural benefit to the storage of published works on large cultural databases such as suggested.

Much of the problem comes from the various exceptions in the 1988 copyright Act, in which not only do creators have to assert the right to be recognised (credited) for their work, but in the cases of newspapers, magazines and textbooks the right to be credited was withdrawn in any case. Therefore many of our published works went un-credited and still do. Thousands upon thousands every day.

The original objection to crediting work cited by Publishers was to do with hot-metal type-setting. This has ceased to be an issue for over a decade, and now there is absolutely no reason for a credit to be withheld, other than there is an advantage to the publisher in that an orphan can be created for future exploitation, (I honestly can see no other reason for deliberately withholding credits.)

The right to be recognised as the creator of a work is surely a basic human right, and as such it is difficult to see any reasoned argument against all images and created works being credited on publication, wherever they are published.

If Moral rights were beefed up and made inalienable then future orphans would be eliminated overnight, and if this were backed up by appropriate legislation then lack of credit on the Internet could be dramatically cut as well.

If basic copyright were taught in schools alongside basic computer literacy then those using the Internet and creating works would know that copying is not acceptable without permission. Our education system is possibly the best in the world – let us use it.

Major publishers and organisations such as the BBC conveniently forget how created works come about. If all major publishing corporations continue to squeeze the professional creator in the way that has been done over the past twenty years, professional creators may well find themselves unable to continue to work full-time and maintain a living. Whilst photojournalists have been pointing to the stagnation of Fleet Street rates since 1994 – the commission and space rates have not even kept up with inflation yet the cost of working for a photographer such as myself has almost doubled in that time. Only last week one national newspaper suggested that it wished to reduce rates being paid to contributing photographers for the second time in a year.

Is it too much to ask that Moral rights be made inalienable therefore stopping orphan works being created?

Is it really too much to ask that reproductions of created works get a byline or credit?

Is it really too much to ask that a user ask permission before using or re-using a created work?

Is it too much to ask that users pay a fair rate for created works rather than continually finding new ways and reasons to reduce already low fees?

I think it is about time that we learned to recognise the importance of our creators, most of whom are simple lone traders, people who believe passionately about what they do, and because of their low status in the food chain are vulnerable. Let us not kill the goose that laid the golden egg. We have an opportunity here to improve the working environment for creators, and show the respect that society has for them.

Clause 43 of the Digital Economy Bill is dangerous to creators and could create an environment where:

Extended Collected Licensing controlled by the Publishing industry becomes a standard way of paying for created works

where creators are refused acknowledgements or credits as a matter of course

where creators lose control of their works and have no say in their use or publication

where as a result of the above professional creators become unable to sustain a respectable standard of living

This must be opposed, and if legislation is required then make it legislation that is positive towards creators. Let us not lose this chance – think of the consequences if we get it wrong.

We have pledged, as photographers and creatives, to actively participate in the construction of primary legislation enabling the cultural use of existing orphan works. This legislation should satisfy legitimate needs of museums and conservators, while not abusing the rights or terminating the careers and businesses of the people who produce the "content" that the "creative industries" market.

Pete Jenkins

Member of: The National Union of Journalists

Thursday, 25 March 2010

David Lammy at SABIP

I would like to share with you this U-tube coverage of the event that was held last Tuesday morning (22nd March) by SABIP (Strategic Advisory Board for Intellectual Property) which advises the Intellectual Property Office. Five members have been appointed to SABIP under the Chairmanship of Joly Dixon, CMG. They are:

  • Dame Lynne Brindley - Chief Executive of the British Library
  • Dr Cathy Garner - Chief Executive of Manchester Knoweldge capital
  • Professor John Pickering - Member of the Competition Appeal Tribunal and Business Consultant
  • Dr Jonathan Spencer, CB - Former Ditrector General at the Department of Trade and Industry and Constitutional Affairs and member of the Solicitors' Regulation Authority
  • Iain Wilcock - Founder and Deputy Managing Director of Quester capital, a health care investment company

Can’t see many creators in that lot, can you? Can they really be giving the IPO a balanced view on intellectual property rights?

Any way back to the ministers speech.

Minister Lammy's keynote speech at SABIP's event on International Perspectives on Moral Rights (held 23rd March 2010), part 2

It does make interesting watching and listening as according to the minister, we creators in the UK enjoy the inalienable moral right to be recognised as such!

1 min 18 secs into the video he says:

“Creators have the right to be recognised as the authors of their own work and that is an inalienable right even though it is sometimes complicated to apply…”

I guess his info didn’t come from SABIP, but I suspect it does come from the IPO

As he also tells us he believes moral rights are just as important as economic rights, I have to again ask why our simple requests for Moral rights to be made up to what the Minister says they already are were not part of the Digital Economy Bill?

Just to be absolutely clear, in the 1988 copyright act I note.

77 Right to be identified as author or director

(1) The author of a copyright literary, dramatic, musical or artistic work, and

the director of a copyright film, has the right to be identified as the author or

director of the work in the circumstances mentioned in this section; but the

right is not infringed unless it has been asserted in accordance with section


78 Requirement that right be asserted

(1) A person does not infringe the right conferred by section 77 (right to be

identified as author or director) by doing any of the acts mentioned in that

section unless the right has been asserted in accordance with the following

provisions so as to bind him in relation to that act.

It does seem that Mr Lammy is not as knowledgeable about copyright was we are lead to believe.

Ok he is a minister and a very busy, and so I am certain that he doesn’t write his own speeches, indeed I believe I am right in saying that the Minister relies heavily on the IPO in such matters. This is all well and good, but if the Minister is not being given the correct advice to start off which what value are his assurances that he will be looking after our needs – especially Moral rights.

The way I read this, and it is only my personal overview, I don't think David Lammy truly understands any more about our needs than he did after taking the Gowers review in hand.

He clearly had little idea about what we did then – I recall being told by a witness that he had to be advised then that photographers had copyright too. However, whether or not that is true Minister David Lammy has been a busy man in the last two years

Very busy in Tottenham, very busy on black and fatherhood issues, very busy doing TV interviews, and very busy getting money to restore the huts used by Scott and Shackleton when they went to the Antarctic. Checking through his own website he doesn't seem that bothered by copyright or orphan works:

I found only four references to copyright on his website.

David Lammy calls for pan-European approach to copyright protection Oct 2009 from the Guardian.

New Copyright Guidelines Oct 2009

'Internet Pirates this man is out to get you' quoted in the Observer April 2009

and a reference in the Washington Post Nov 2008

For "orphan works" I could only find a speech at the '10th Anniversary of the African HIV Policy Network' which had nothing to do with copyright or orphan works. Other searches on Orphans got much the same, nothing on the legislation.

I think it is fair to say that the Minister himself does little on Copyright or Orphan works, he has a bloody great big office and staff who do all that sort of thing, and what he says himself is only as good as the briefings he is given, and lets face it those briefings come largely from the Intellectual Property Office and if Tuesday’s speech is a guide, they do seem to be somewhat under par. Which is why he says inaccurate things.

This is being led by the IPO and we have already established what their agenda is, because they have told us. And we simply do not register as individual creators.

I don't think for a moment David Lammy is a bad man, simply he is being told that what is in the bill sorts out the orphan works problem, and he believes the advice he is given. The big difficulty all the way through this is the problem that is called the 'Orphan Works Problem' by HMG, is How can works for which the creator is not blindingly obvious be safely commercial exploited’.

The 'Orphan Works problem we (photographers) see and understand as creators, is How can we prevent individuals and organisations, commercial or otherwise from unwittingly or deliberately removing identifying information or otherwise publishing our work with out credits creating those orphan works in the first place’.

We are singing different hymns, and frankly not even using the same hymn book. Lammy isn't even reading the hymn, as clearly he is having it whispered to him by third parties.

How anyone thinks we can put faith in Lammy doing anything without far more input from more reliable sources escapes me.

Pete Jenkins

Member of: The National Union of Journalists

Pete Jenkins asserts his right to be recognised as the author of his work and all his creators rights

(C) 2010 Pete Jenkins

Tuesday, 2 March 2010

Orphan Works Countdown

It has been a while since I wrote in this blog. Things have been very busy one way or another.

The Orphan Works debate has been increasing in intensity, especially now as it seems to be all coming to a head with the current Digital Economy bill about to clear the House of Lords and be rushed through the House of Commons. Current thoughts are that the Labour administration want to rush this through before the election, which is coming ever closer.

Many photographers have been working very hard behind the scenes lobbying MPs and Lords, meeting up with the great and the good, and there is much to report. The EPUK (Editorial Photographers UK) organisation (amongst others) and its members have worked particularly hard, and some individuals have done a phenomenal amount of work.

One of the best places to look at to keep up with what is going on is Copyright Action administered, organised and written by that most knowledgeable and hard working of photographers Tony Sleep.

For my own part, my exchanges with the IPO continue. Very frustrating as now-a-days, instead of answering questions, the last response I got was a very dissapointing

“I'm afraid I don't have time to pen you a full reply at the moment,..”


“have a look at this webpage”

The Digital Economy Bill: What it means for photographers"

This was my response:

Thank you for this link.

Have you read it? It does seem to be really way off the mark, and if this is how the IPO is going to enlighten photographers I am afraid you guys are seemingly way behind the real situation and need to catch up.

I am disappointed that you don't have time to pen a full response as this subject is getting a huge amount of discussion at the moment and photographers are very concerned at the way the legislation is forming. As I have the ear of maybe thousands of photographers I would urge you to take the time.

I raised a number of important points and not one of them is answered sensibly or in anyway satisfactorily by the "The Digital Economy Bill: What it means for photographers" piece.

The legislation was sold to us, (and by you to me), on the basis that libraries and academic institutions needed access to already published work for cataloguing in digital databases. This bill goes way beyond that, and specifically makes provision for commercial organisations to commercially use orphan works. The two are not the same and to try and say they are is disingenuous at the very least. Many photographers have come to the conclusion that they are being deliberately misled. From what you have told me so far how can I counter this thought?

From the document.

"The Government’s intention is that there should be no financial advantage from miss-identifying a work as an orphan work".

From this statement alone it is clear that the Government and therefore the IPO are missing the point entirely. Of course, as photographers we don't want to lose out financially, but more to the point we do not want to lose control of our work - period. I cannot stop my work becoming orphaned - it happens all the time, every time a newspaper publishes my work for starters, and many magazines also don't credit. My work has a value, as much as anything else because I have control of it and its distribution. If I lose this control and a third party can sell rights to its use without my specific agreement, then my control is gone and the value of my work is reduced. There is also no set ‘market rate’ - that is purely an invention of publishers. Different photographers, especially experienced ones negotiate appropriate rates, usually way above those rates that publishers claim are 'the going rate'.

Orphan legislation as has been laid out is ‘back to front’. The legislation's sole purpose is to allow orphan works to be freely used. What creators want is the means by which works can be prevented from being orphaned in the first place. All libraries and academia need is a concise exception. What creators need is the right to be recognised as the authors of their work all the time - no exceptions. If we get the credit then the orphan situation diminishes hugely. And words are not enough. We need the teeth with which to bite those that refuse credits.

From the document.

"A diligent search will in most cases still allow the original rights holder to be identified through the searching of databases, advertisement of the intention to use, use of electronic messaging (in the case of sites such as Flickr for example) and other steps"

There is no way of making a diligent search, there are no databases... Cart
before the horse again.

From the document.

"We are aware that some creators would like a change in the way moral rights work, particularly with regard to the right to identified as author of a work. This is however a polarised debate: publishers and users of copyright works are concerned that any change would prevent them from carrying out legitimate editing activities and add unacceptable overheads to established business practices."

This is absolute nonsense. How does giving a photographer a credit affect activities or acceptable (some established practices are from acceptable) business practices?

From the document.

"If the Digital Economy Bill becomes law, then the government has committed to a broad consultation before legal rules for orphan works schemes are developed. At this time (planned to be the second half of 2010) we would like to hear from creators and copyright owners of all types, as to what they believe the issues are for them. The consultation process will be widely publicised, and you will be able to contribute your views at that time."

Legitimate concerns could be dealt with now. Making the law first and asking us after does not seem to be a sensible way about dealing with such an important issue, as by this time we are merely adjusting legislation rather than stopping wholesale mismanagement from happening.

Perhaps one should consider why the US has backed down from such legislation before going further?

I don't feel that I am getting much further by talking to the IPO, but I am hoping that I can still make a little ground, someone out there might still be listening. The IPO sincerely believe that any problems will be dealt with in the autumn. If I were being overly generous I would say that the IPO are simply closing their eyes and ears to reasoned debate.

the truth seems to be, and the IPO tell us this in their discussion of moral rights, is clear that they are simply doing what the BBC, Publishers and the British Library, have asked them to do. The BBC and Publishers have no interest in authors rights, as acknowledging that we have any at all messes up their exploitation of our creations. It is in the interest of Publishers to open up the world of crowd sourcing, microstock, and personal publishing. Orphan Works licensing is a positive gift to such exploitation.

Professional creators are of no interest or importance in this new model of trading and licensing. As we are all too aware, most publishers business models when it comes to the web, deeply flawed as they are, continue to involve free publishing on the web, with therefore very low margins. To achieve this publishers (including the BBC) want free or nearly free content. It would appear that Lord Mandelson, 'Prince of Darkness' is giving his masters everything that they want.

I note that the the IPO term the Moral rights debate as a polarised one. As a photographer I know exactly what that means. It means that the debate has been turned to one direction only and anything that is out of line is simply removed. No-one in the IPO or government is interested in what we as creators think, only in removing us as a threat in this Brave New Digital World'. It stinks!

Pete Jenkins

Member of: The National Union of Journalists

Polarise (from free dictionary)

Verb1.polarize - cause to vibrate in a definite pattern; "polarize light waves"
natural philosophy, physics - the science of matter and energy and their interactions; "his favorite subject was physics"
alter, change, modify - cause to change; make different; cause a transformation; "The advent of the automobile may have altered the growth pattern of the city"; "The discussion has changed my thinking about the issue"

2.polarize - cause to concentrate about two conflicting or contrasting positions
disunite, separate, part, divide - force, take, or pull apart; "He separated the fighting children"; "Moses parted the Red Sea"

3.polarize - become polarized in a conflict or contrasting situation
divide, part, separate - come apart; "The two pieces that we had glued separated"