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,..”


and


“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
www.petejenkins.co.uk
www.onlinepictureproof.com/petejenkins
www.photographerspro.eu/pete_jenkins/


Member of: The National Union of Journalists


Polarise (from free dictionary)

Verb	1.	polarize - cause to vibrate in a definite pattern; "polarize light waves" polarise 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 polarise 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 polarise divide, part, separate - come apart; "The two pieces that we had glued separated"

© the way ahead: A Copyright Strategy for the Digital Age

For some time now we have been waiting for the Government to ‘announce’ its strategy with regard to copyright and orphan works. There has been much debate about the efforts in the United States to introduce an Orphan Works bill, and huge concern about the knock on effect of such a bill to ordinary creators such as independent freelance photographers (both editorial like myself and otherwise). I last talked about this in my blog in January (29th Jan 2009), and with the Queens speech due this afternoon it is time to revisit the subject.

The Gowers review was published a while ago now


Then, we had the Copyright Consultation document from David Lammy. I responded to this myself as did many others, and I also took part in an online debate held by the British Journal of Photography along with Paul Brown, the managing director of the Mary Evans Picture Library and chairman of the British Association of Picture Libraries and Agencies, BAPLA's executive director, Simon Cliffe, John Toner, freelance organiser at the National Union of Journalists, and Rupert Grey, consultant in the Litigation Group at media law specialist Swan Turton Solicitors

and after this in June the Digital Britain report.



The latest document“© the way ahead, A strategy for copyright in the digital age”, was published on 28th October, and it is this document that I want to start looking at.

It is a long document so I am going to take it in sections, looking first at the summary and Introduction.

© the way ahead
Initial Response by Pete Jenkins

Please note , the 'Indented' paragraphs in italics are quotes from the document.

David Lammy says:

We are, however, at a crossroads in our relationship with our new digital world.
Digital technology means access to information on a vast scale. It has changed the way people publish and consume works. It allows anyone and everyone to make and distribute quick, cheap, and totally accurate copies. Consumers have reached out to grab the potential of this new technology. The copyright debate, once in the hands of the professionals of the creative industries, is now a debate for everyone. Businesses and governments have seen the challenges but have been slow to respond.

Although creative industries and governments are trying to catch up with the digital world, there is more to be done. We must push harder. Policy makers need to get ahead of the game. They need to recognise the need to work with an awareness of what consumers are doing and want to do. And they need to recognise that no single national government has control of the agenda.

We must now work within the international and European framework to ensure copyright keeps up with technology and consumer behaviour. We have to make it simpler, and make it address the concerns of all those who have an interest in the copyright system: business, consumers, creators, and copyright owners.

(c) the way ahead: A Copyright Strategy for the Digital Age is a recognition that the world we live in has changed. This report is the latest part of our ongoing response.

Page 1 – Executive Summary.

Findings from the Copyright Strategy

For the first time, individual citizens have the means to create, use and distribute copyright works through digital technology. People want to make use of these opportunities but in doing so it is almost inevitable that they will violate copyright. This mismatch of expectations is significant because neither the law nor people’s attitudes is easy to change.

Copyright is also complex for users. Much of this complexity can be addressed by rights holders and how they administer their rights. This would have many advantages over changes to the law, which can be slow and risks adding to rather than reducing complexity.

Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem. But fair compensation for rights holders would be required. Action at a European level would be necessary.

Processes for licensing copyright works need to be improved. The Government has already brought forward proposals in the Digital Britain Report, which noted problems with access to “orphan works” and the potential benefits of extended collective licensing in tackling some of these problems. Non-compulsory registration systems may also help rights holders manage their rights more effectively.

Creative industries face real challenges in monetising content. Firms must continue to evolve products and services to offer consumers something they value at prices they are prepared to pay. Education and enforcement can support these efforts but cannot tackle infringement of copyright on their own.

Pete Jenkins response:

It is positive to see that we all understand that everyone is or has the potential to be a creator. More so now than ever before. Whilst the public as well as specialist creators have always had access to pen and paper and have been able to create works, whether they be written or illustrative, the digital age whilst not actually making access any easier (what can be easier than a pen) has made the publication of such works more accessible to everyone who wants to take advantage of it. However, as has been said many times before, the mere ownership of as pen does not make one a prize winning author. The mere act of publishing itself does not convey any kind of quality on what has been published.

There is a big difference between copying some one else’s created works and publishing something that has been worked on and crafted onesself. Just because it is easier to copy and paste, does not mean that one automatically has the right to do so.

Ease of access is a wonderful thing, but this should not mean that publishing on the web or elsewhere justifies any kind of anarchy.

Many, (not all), citizens make an assumption that because something has been published that it is automatically in the public domain, and that therefore it can copied and published further at will. There is also the thought that because something has been published on the web site of a large faceless publishing company that further copying is not hurting anyone, and that in any case such theft is somehow justified because of the size and wealth of large faceless corporations.

What is not understood here, is that most creations, unlike say a packet of cornflakes in a supermarket, are most likely the product of one persons labor and creative process, and not necessarily part of a faceless corporation conveyor belt.

Many, (if not most), Creators make a living by selling licenses to reproduce their product. It has to be a license rather than outright sale, as outright sale to just one party would deny the rest of the population access to that work. A scheme of licensing means, (or should mean), that the creator retains ultimate control of his or her, created work. This is important to insure that the work is not used inappropriately, as well as ensuring a small income stream for the creator.

Contrary to the general perception of the population, creators are almost exclusively on a low wage, and do not make a lot of money out of their skills, indeed, as has been said many times before, freelance editorial newspaper photographers for instance are paid the same today in 2009 (or less), than the received for the same work in 1994. This is not healthy for creators, and casts a shadow over the commitment of those publishing organisations that pay these fees.

It has been said many times in this document that copyright is complex. Exactly how is it complex? One either has obtained permission to use a work or one hasn’t. How is this complex? How is obtaining a license to use an image any different to obtaining the hire of a car. Indeed, observers might say that in this respect copyright is a far simpler process, yet there is no general outcry over either the cost or the process of car hire.

Photographers are very concerned by the idea of,

Making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help tackle the “mismatch of expectations” problem.

Why is it so important for consumers to have a right over created works that they have made no contribution to the production of? And how can this be deemed fair? Why is there a requirement to remove the need to seek permission? Is this not a basic moral courtesy in our society? And does not removing the need to seek permission, re-enforce the falsely held belief that individuals can do what ever they want with someone else’s created works, regardless of context and intent?

The mismatch of expectations problems so described come from a lack of education. Society has had handed to it this wonderful publishing access opportunity (digital publishing and the ‘world wide web’), but has had little or no education in how such an opportunity can be correctly used, and the rights and wrongs of publishing this or that work.

Reading, writing and arithmetic are the core subjects in this country’s educational system, understandably one of the envies of the rest of the world, it would seem simple common sense in the 21st century to include in the core curriculum, copyright and publishing. If we taught our children and our society how to publish correctly, not just how to use a keyboard and access the ‘world wide web’, many of these confusions and misconceptions would no longer exist.

It is unclear to me as a professional photographer of more than thirty years experience, and indeed to other creators, when the matter is discussed in professional forums etc, what is wrong with the current process for licensing copyright works. One who wishes to publish seeks permission from the one who holds the rights. What can be simpler than that?

Creators are aware that users of imagery such as large publishing companies wish to simplify the process, by saying (say) that one small payment to a licnece holder should then entitle the publisher to publish that work wherever and whenever that publisher chooses . But this can be identified an attempt to get work cheaper and exploit the creator, rather than simplifying any publishing process as such. One must be careful not to confuse corporate greed disguised by a wish to simplify this or that process. Any attempt to simplify a process which actually work very well in it self should be made very carefully and not just be driven by the greed of those who want creators work cheaper or free, and that goes as much of large corporations as it does for individual members of the public.

Access to ‘orphan works’, as they have been described in this document, are of huge concern to individual creators.

If one doesn’t know a child’s name is the child therefore an orphan? Of course not. The same goes with a created work. There are so many situations where, especially publications authors details can be separated from a created work that alarm bells ring very loudly for any creator and supplier of work to publishers.

• In the past contact details would be attached to the back of hard copy images via a piece of paper glued in one corner. If that paper became removed, did the work become an orphan? Of course not.

• Later when images were scanned, contact details would be added in an extended canvass field below the actual image itself. But in the reproduction process this canvass addition to the visible image was cropped out, and often the image would be resaved without the caption field leaving the saved image unidentified. Did this make the image and orphan? – NO.

• In the age of fully digital imaging with photographs captured in a digital format photographers go to great effort to complete meta data panels within the digital data of the image. No image should therefore be an orphan. However, in many cases on uploading to the World Wide Web, storage in certain data-bases, all this electronic tagging data is removed. Do these images then become orphans? A ludicrous assertion.

Many of the so-called problems with orphans are caused by poor storage, poor handling and in some cases deliberate intent. The idea that a non-compulsory registration system might also help rights holders manage their rights more effectively, is tantamount to saying that it is all the rights holder’s responsibility. Rather than suggesting that rights holders should be put to more expense in time and financial cost that registration in systems that do not exist, creators would suggest that actually removing the contact details from digital files should be made illegal, and effectively enforced by law. No creator has the ability to stop 2nd and 3rd parties abusing images by removing copyright and creator metadata and details, but those who handle images can certainly exercise responsibility. This does not need any new system to be put in place, nor need it impose any cost on creators.

Whilst it is true that,

Firms must continue to evolve products and services to offer consumers something they value at prices they are prepared to pay. Education and enforcement can support these efforts but cannot tackle infringement of copyright on their own.

No creator who has given this any thought would expect ‘education and enforcement’ to be the answer to everything, but currently the balance of power is very much in favour of the abuser of creators rights. Education in copyright and the publishing and creation of works is pitiful, and lacking in most cases. There is a huge area of improvement possible here, and it would seem a simple matter to introduce it into the core curriculum. Indeed, one would have thought this essential in our digital age.

As for enforcement, this is currently regarded as a joke by most creators. Most individuals do not have the time, finance or legal skill to pursue copyright infringors in the courts, courts themselves who in many cases do not always understand the process involved. And even when cases are won, it is usual only possible to recover the amount that should have been paid in the first place, with no punative damages. Such a process actually encourages copyright theft rather than preventing it. Some larger organisations have recently had some success in pursuing copyright thieves, but they are able to afford processes and recovery agents that sole proprietors simply do not have access to at this time.


Actions and recommendations

Based on these findings, the Government’s intentions are:

• for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
• for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;
• for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;
• for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
• for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.

This means:

• UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P fi le-sharing; and
• A willingness on the Government’s part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.

Pete Jenkins response:

There is no other obvious response to:

"for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;"

other than to applaud the statement. This is exactly what creators want to hear. It will also be of huge value to the end user, and indeed, clarify matters for the agent or publisher. However, such good intentions need very careful monitoring.

The statement:

“to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to ‘orphan works’ such as out-of-print books;”

would seem to require more than a little clarification. Especially with regard to ‘out-of-print’ books. The mere fact that a book is out of print does not make it an orphan, and indeed the very notion seems to distort the whole notion of orphan works. A three-hundred-year old book that is out of print, is a different matter to a book that is out of print for merely five years, and when the author is still alive and identified.

"for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age;"

Educators and researchers should not be exempt from copyright legislation and laws. That they should be allowed ‘some’ access to material is not to be denied, but exemption from copyright laws is going to far. Any blanket exemption is tantamount to inviting abuse. It would certainly be innapropriate for educational organisations to obtain material under an educational exemption, and then use this very same material for commercial gain. Before any special cases are made for education, it would seem prudent to ensure that that same educational system is fully informed in copyright matters and education those in its charge – both pupils and teachers.

"for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.”

Publishers and big businesses are continually trying to simplify the copyright system, by attempting to introduce rights grabbing contracts to the creators who supply their imagery, but these are not attempts to simplify any process, or to improve copyright licensing but are aimed solely at making imagery cheaper for the publisher at the direct expense of the creator. This sort of business skullduggery should be directly opposed by this legislation and should not be encouraged in any way shape or form.

This means:

• UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and
• A willingness on the Government’s part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.

Pete Jenkins response:

Few creators perceive that there is currently a problem with ‘orphan works’, and even fewer believe that there is a need for copyright legislation to be evaded or avoided.

There is severe reservation amongst creators – editorial photographers in particular about ‘extended collective licensing’ being a method used for collecting payments for use of so-called orphan works. Just because a work has not got a clearly identified author immediately identifiable does not mean that the work is out of copyright, nor that an author is not identifiable with a little bit of effort. How exactly can collective licensing by its very definition a method of licensing for small amounts of uncollectable fees, be used to collect licensing fees? Orphan works simply do not fit into this remit of a collecting society. Creators want a proper fee for every use of their work, in the same way in that they wish to retain control over how their work is used. There are no ‘blanket fees’ for licensing created works, how could there be? Orphan works are totally different from photocopying licences – something which collecting societies work incredibly well in collecting on behalf of creators. How can collecting societies negotiate every individual license, which is what creators have to do, quite rightly so. Most editorial photographers simply do not see the connection between the two issues.

Model contracts and clauses for the licensing of created works do exist, and there does not seem to be a deficiency in this area.

“commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.”

Again, is it in the best interest for creators to allow unlicensed use of their work, even for consumers? Consumers are after all the end-user. To give them free rein to use created works as they wish seems unfair to creators, and will likely cause even more copyright infringements.

Is not a ‘mash-up’ the use of two or more created works to produce a third hybrid work? Why is it deemed innapropriate for the original creators to be asked if they give permission? It would seem essential if copyright is to truly work.

Pete Jenkins
www.petejenkins.co.uk
www.onlinepictureproof.com/petejenkins
www.photographerspro.eu/pete_jenkins/

Member of: The National Union of Journalists