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

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