Friday, 4 March 2011

Review of Intellectual Property and Growth: Call for Evidence

"What, if anything, should we do to change the UK's IP system in the interests of promoting more rapid innovation and economic growth?

It is through that lens that I will be assessing all responses. The most persuasive arguments will be those supported by the most robust evidence. That evidence might come in the form of statistics or in case studies based upon direct, personal and organisational experience."

So Ian Hargreaves wrote asking members of industry and the public to contribute to his consulting exercise on UK patents and copyright

   I can comment only on the experience I have had as a creator, as an agent for other creators, and from my experience dealing with creators all over the UK, mostly, but not exclusively photographers.  Copyright law in the UK appears simple enough, and far from complicated, although, it must be said, there are some glaring omissions to the detriment of creators, which include the need to assert moral rights in created work, and then the dispensation to give a credit allowed to newspapers and magazines.  Lack of credit does hurt creators in several crucial financial ways, and in addition it also hurts the consumer of product because the consumer is often then unable to verify the source of material whether it be written or an image.

By allowing created work to be published without a credit, without the author’s identification, the author loses the gravitas that publication gives the creator’s brand.  It is through publication and the knowledge that a work is by a particular creator that creators build up their brands.  Whilst the scale might be different, brand awareness is vitally important to creators especially those who work on their own as sole traders. Just as important as it is to a large supermarket or a major publishing house.  It is as important to a photographer as it is to an artist.  Lack of brand awareness seriously damages saleability.

The lack of a label identifying the author also affects the consumer.  Particular creators, whether they are a reporter, a writer or a photographer, (or any other type of creator), add value to the printed page or the video report etc.  Knowing who is the writer or the photographer/illustrator also tells the consumer that the report, the writing, or the image can be relied on and is factual – that it can be verified.

I have been a press and editorial documentary photojournalist now for 35 years.  My first images were sold in around 1975.  In the time I have been trading I have changed my trading name probably five times, my address as many, and my phone number a little less.  When I started I had neither and e-mail contact nor a mobile phone, and whilst these latter have now been constant for some fifteen or so years before that they too have changed several times.

During this period I have distributed scores of thousands of photographs.  Initially as black and white prints - none of which will have my current contact details, then as colour prints - again no current details on them either, and then from about 1992/3 mostly as digital files.  Many of the earlier digital files will also have incorrect contact details.

Whilst after each change of contact details I have always contacted each and every client, even defunct ones with the changes, how many of my images  (80,000+) will have been as diligently updated?

So, even though my name is easily 'Googled', most of my work put out to clients, both commissioned and speculatively, over at least the first twenty-five years of my career is likely to be orphaned in one way or another.  Add to this the fact that the majority of my work published in Newspapers, and a substantial amount of magazine work is published without out a byline, and perhaps this can give an indication of the actual extent of orphaned work - just amongst professionals.  Can I keep track of uninformed uses?  Not a chance.  Do clients contact me to ask if they can use older material from file?  Rarely.

Turning to the BBC.  They used to have a large number of sports images for use with 'A Question of Sport'.  These were exclusively transparencies.  None of mine will have my current contact details.  How many of these images are still on file?  What would the BBC do if they wanted to use one now or in the future? 

I used to be a contractor with the ‘Daily’, and then the ‘Sunday’ Telegraph newspapers.  Many thousands of my images are on file with them, and I have no reason to believe that they have purged me from their digital systems (rather the opposite).  After I stopped being part of the 'team', I stopped receiving regular cheques.  But my work was still used as stock.  I used to go to their library every six months or so and search through the editions.  Due to time constraints I ended up only being able to check the final editions, but even so every trip used to reveal scores of uses, which I was able to invoice for £1000s.

Now in Nottingham, I no longer have access to their library, but have the uses stopped?  Every now and again I pick up an on-line use, but have huge problems in getting paid for them.  But how many uses slip through, get used and I simply remain unaware of the use?  The Telegraph advise that they pay on invoice.

It is much the same for the Mail, Express, Mirror, Times, Sunday Times, News of the World, Star, Sunday Mirror, People, FT, Guardian, Observer etc all of whom have used my work, commissioned my work, and stored my work in their libraries.  Occasionally, I get a payment, but being in Nottingham I am not in a position to check all editions even if I could now justify the time to go through every paper available to me in Nottingham (I can't).  So over a year how many uses do I not get paid for?

And yes, I know that as my material ages it would be used less, but I get enough requests and queries for my older work to know that it does have a value and could well be being used in a small trickle with almost everyone of my former National (and regional) newspaper clients.  But none, apart from the Guardian, (and their system is manual so fallible), seem to volunteer payments these days, so it seems.

How many of these Publishers and former regular clients can say that they have updated all my details on all my older works?

Increasingly over the past ten years I have experienced publishers asking me to sign contracts, which give most or all of my rights to the publisher.  This goes a lot further than not giving an image credit, but denies me the ability to sell my images to other clients in the future, and equally if I did sign such a contract it would give the publisher the legal right to sell licenses of my images to third parties without any recourse to myself or any payment to myself.  Whether these third parties are other companies within the publishing group or completely different third parties is irrelevant.  Each use should be paid for – that is how the creator earns his or her living.  To deny the creator the ability to sell license to their own images has an immediate detrimental effect on their ability to survive economically.

Being able to licence ones own work to third parties has become increasingly important in the past twenty years, as since 1994 the fees paid to editorial photographers have either stagnated, or in the worst cases actually fallen.  This does not just cover commissioned work, but also work taken from stock files, (usually paid for in proportion to the size used).  As publishers increasingly insist on contributors signing over their rights to licence and exploit their own work, it becomes more and more difficult for those creators to survive.  Of course the creators with the best reputations are able to resist such economic attrition, but those new to the industry are often told that such assignment of rights is the business or industry norm, when of course it isn’t, and rookie creators are given a very rough ride in the industry that they have chosen.

Photographers report numerous practices that can be regarded as anti-competitive, including the demand to transfer copyright that is made by organisations as diverse as Future Publishing and the BBC.  Copyright should be a basic human right, and no large corporation should be able to, (should be allowed to), use its commercial muscle to force sole traders to part with extra publishing rights or indeed copyright without a suitable and appropriate payment.

The only reason for publishers to demand copyright as a condition of purchase or sale is so that they can continue to exploit the created works without making appropriate and further payments to the creator.  That undermines the entire copyright licensing system to the direct detriment of the creator.

Of course, such tactics whilst they give a short-term advantage to larger players such as publishers do in the end have a very detrimental affect on the industry as a whole.  There are fewer and fewer full-time editorial photographers today than there were twenty years ago, and although universities and colleges are training students, very few are actually able to make a career in the creative arts – especially photography, work.

I have become very concerned with the issue of orphan works.  What started initially as a very credible need by the library and academic sector to digitise previously published works, has ended up being very far from this simple academic ideal.

Recently we have seen attempts at orphan works legislation fail to pass through US legislature, and we understand that the similar legislation initially designed to allow libraries and academic institutions to digitise published works without fear of prosecution from copyright owning creators.

Few if any creators reject the idea of digitising collections of works.  Indeed the project has the support of all those I have discussed it with.  The difficulty has always been that in order to digitise existing hardcopy collections it is inevitable that commercial entities will be engaged to undertake the actual digitisation process, and that in order to pay for the work done the academic institutions and libraries will start to sell of rights which they do not have.

Indeed we have already seen this happen with the British Library and the British Newspaper Archive currently housed in Colindale

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

 Whilst the British library says that it is not making any commercial gain out of the digitisation process, it is very clear that Brightsolid a division of DC Thomson most certainly cannot make the same claim.  They are not digitising the archive out of a sense of community spirit, but because the see and intend to exploit a commercial opportunity.  Neither Brightsolid nor the British Library have adequately explained how they can identify which photograph or which article has been written by a staff member, (therefore the copyright belongs to the newspaper publisher), or which have been created by freelances, (who own their own copyright).  Neither have they adequately explained how they will attempt to ask permission for those pieces of original created works to be sold on to 3rd parties.  In addition they have not explained how the original creators will be paid their rightful percentage of the sales of articles made.

The digitisation of the Newspaper archive is a very worthwhile project, but due process must be gone through, and no one should be guessing what is or is not in copyright, now should any commercial entity be profiting from creators’ original work without a basic agreement to do so and a mechanism in place for apportioning a part of each sale to those creators.

Pete Jenkins




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