I have recently completed my application for the 2014 Design
and Artists Copyright Society’s ‘Payback’.
Something I do every year during the summer.Indeed, something I have done for many years, since the scheme was first
made available to photographers.
But this year it has not been the same and many
photographers have queried the extended mandate that we have been asked to sign
– BEFORE we are able to collect that money that has already been collected on
our behalf.
‘Payback is an annual scheme run by DACS to distribute the money owed
to visual artists by various collective licensing schemes.
These licensing schemes cover situations where it would be impractical for you
to license your rights on an individual basis. For example, when a student in a
library wants to photocopy pages from a book which features your work. As the
creator of the work being photocopied, you are entitled to a royalty, but
rather than ask the student to contact you every time they photocopy your work,
the library pays an annual licence fee that covers their students photocopying
copyright protected books.
It’s not just libraries and universities that do this. Many different types of
businesses and organisations buy a similar licence too.
The money is then shared out among the creators whose work has been featured.
Authors and publishers receive a share of this money through Authors' Licensing and Collecting Society(ALCS)
and Publishers
Licensing Society(PLS)
respectively. As a visual artist you can claim your royalties through Payback.'
Photographers all over the UK look forward to what is seen
by many as their ‘Christmas Box’, as the payment which for many can be a
thousand pounds or more usually arrives in early December, having been
collected during the previous financial year.
However in 2014 something changed.
DACS has previously collected under the following licensing
schemes:
Publications:
Photocopying (by central, local government
departments, universities and other business).
Slide collection Licensing Scheme (in
educational establishments)
Television:
Cable re-transmission of UK Broadcasts
BBC prime and BBC World
Off-air recording of programmes (by educational
establishments)
This year instead of simply acknowledging monies already
collected, which photographers had always done as part of the application
process, artists now had to sign a cleverly worded document including the
following:
I grant to DACS an exclusive licence and a mandate to negotiate,
claim and administer the secondary rights in my artistic works, or the
secondary rights in the artistic works of those individuals to the extent
we are authorised to represent them (the ‘Authorisation’). I warrant that
I have full right and title to grant this Authorisation. In consideration
for granting this exclusive licence I will become a Payback Member of DACS.
This gives DACS the mandate to act on the behalf of
photographers in licensing that currently doesn’t take place.It gives licence to DACS to expand PAYBACK in
any way it sees fit without recourse to the very people it purports to
represent.
·Is this good?
·Is this fair?
·Is it correct?
Let us be clear what is being done here. DACS is holding to
ransom the money it has already collected on behalf of its members, and which
is already there to be distributed.In
order to get this money – legitimately belonging to the creators (not DACS)
creators are obliged to sign away unspecified new secondary rights, giving DACS
carte-blanche to represent photographers without any further recourse to those
same creators.
Regardless of how good DACS are, or how efficient they might
be, why do they need to give the impression that they are holding their member’s
money to ransom in this way, – sign up or you don’t get your money we have
already collected. (At least that is how it feels to me, and I find it difficult
to interpret their action in any other way)?
Both the UK government and the European equivalent are keen
on extended collective licensing, but not just for what has already been
described. (see the DACS FAQ page) DACS want to be in a position to be THE collecting
society granting licences on behalf of photographers, and our blanket
permission means that they can claim to represent us, without any of that
laborious having to consult us rigmarole. This actually will be very useful as
DACS goes into battle with the big guns of secondary licensing The Copyright Licensing Agency.
DACS say that they will consult us before doing anything.
But will they though, now that they don’t have to any more?
Extended Collective Licensing, by its very nature removes
control of licensing from the creator.If the image licensing market becomes one run through ECL then control
of works removed from the creator, and even opting out of the ECL scheme will
do little to regain that control (work will be used regardless and the creator
will not get paid at all).
Q.Why do
government and large organisations like ECL?
A.Because it is
cheap.
Cheap to run and brings in blanket licensing which will of
course be tailored to the low end product (and costings), but encompassing high
end superior quality, heavily maintained collections of work.
Granting DACS this right to negotiate on our behalf and to
be our representative in the Copyright Licensing arena is a two-edged sword.
An astute observer might ask, whether by signing the DACS
authorisation as it now stands are photographers not implicitly condoning
Extended Collective Licensing, not just of the things that we know about and
approve, but of ECL in much wider fields that we might not be so happy with?
The same observer might ask the question ‘What do DACS know
that they are not telling us?’
What makes this all the more difficult is that I actually
want DACS to represent me in the collecting of secondary licensing, as
currently they are the only option we have. As other options make themselves
available then I may wish to move my allegiance.But what I do want to be sure is that DACS
are truly representing my wishes and that they ask me BEFORE they undertake new
activities and not simply present me with ‘fait accompli’.
Ransom(Merriam-webster)
Full Definition of RANSOM
a consideration paid or demanded for the release of someone or something from
captivity
I have to say that I certainly had not seen this coming. The difficulty for everyone else (photographers that is) who are not the corporate
Getty (and I include their editorial supplier photographers) is it will have an
almost immediate effect on every other supplier of editorial ‘smudgery’ (Smudger - Fleet Street slang for Photographer).Not so much a race to the bottom, but the floor
simply vanishing under our feet...
The effect of this move by Getty
could be to remove an entire market (editorial stock photography). One
understands the basics of taking over a market by reducing the cost – indeed there
have been many famous exponents, but even ‘Walmart’ don’t actually give it all
away.
The consequence may well be that
theft of images by companies will actually increase even though there is now a
vast source of free imagery available legitimately.Many ' bloggers' and other users of the internet
have been working on the basis that everything is free on the Internet,
something that up until now Getty appear to have been agreement with professional
creators; that 'free' is an incorrect interpretation of what the Internet really is. Now
Getty have given into this abandonment of the International Copyright law, and
sanction wholesale use of their work. Good for Getty – in that this is a data
mining exercise, but no so good for those individual creators relying on the
Getty payments every month; payments that most if not all Getty freelance photographers
have seen decrease by a huge percentage in recent years.
For everyone else (photo creators, suppliers and aggregators) this
is going to have an (adverse)effect. Will internet content users recognise that this is
simply a Getty initiative or that this move simply vindicate what they have wanted
to believe all along (everything on the net is free); with the consequence that
other creators will find that their work is further stolen and used without
permission, infringers pointing to Getty as their motivation. Will would-be infringers
realise that the copyright laws have not actually changed?
Getty has believed in its market
domination for many years, and we have seen them buy-out many of the agencies
(inc Tony Stone, Allsport and many more), that were of very high quality, and had become household names. This latest
move simply builds upon this, and is a calculated to undermine the smaller
creators and suppliers for whom the Getty buy-out is not an option.
It will potentially make it more
difficult for creators who must sell licences. This is a deliberate attempt to annihilate
the current market, and create a new Getty centric one.
But, there could be a positive
effect. This move *should* make specialist creator controlled collections even
more valuable, and therefore more important that each of us (individual creators)
chase up every theft. Copyright law is on our side thankfully. It is going to
be difficult, but we have to stand firm against Getty queering our pitch.
Interesting that fellow creators
in the music industry whilst they have found sales of discs and CDs etc. fall,
they have managed to take control of the copyright situation on the internet
and with on-line sales through access ports such as 'I-tunes'. Instead of giving
up and letting the theft of music tracks on-line go unchecked they have come up
with new revenue streams that make theft less attractive and on-line paid access
actually desirable for the consumer and user. If only we could do this in the
image industry instead of the big aggregators constantly undercutting each other
to the advantage of no one and at the direct cost to the creator.
It is of course a carefully
planned move by the image giant. From its very inception the Getty Juggernaut
has been all about domination of the image market. This latest move is all about data
mining.
By supplying markets which are
not great revenue generators(for Getty)
with freebies they will be ensuring that each image leads directly back to Getty.
"......since all the images are served
by Getty Images, we’ll have access to the information on who and how that image
is being used and viewed, and we’ll reserve the right to utilise that data to
the benefit of our business.”
So these free pictures will put Getty all over the Internet.
Very clever for the company that can afford to do it, and do it at the expense
of all other suppliers in the photo marketplace.
The flip side of this for independent photographic creators
could be that independent specialist collection
*should* become more valuable if managed properly. The issue now is how the
other agencies will respond.
Getty is looking for comprehensive data mining and data
utilisation. If other agencies simply follow Getty in a knee-jerk like manner
without the accompanying data analysis approach then they and their suppliers (us) will
lose out big time.Geek led Alamy and
Corbis will be ones to watch...
“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
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.
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.
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.
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'
“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 Bridgemanspeaking 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-Jonesspeaking 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.
A photographer of more than thirty-five years experience. Previously based in London, and since 1999 in Nottingham. Pete serves on the National Executive Council of the National Union of Journalists, representing the unions 1800+ Photographers with his job share Simon Chapman.
Much of his time is spent following the ups and downs of professional Photojournalism.
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