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"

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