Friday, 9 July 2010

Moral Rights


“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
26 May 2010

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.
13 Apr 2010

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.
28 Apr 2010

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.
01 Apr 2010

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'
 The Guardian, Monday 7 June 2010

Finally the publishers tell us:

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 Bridgeman speaking 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-Jones speaking 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.

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