Orphan Works. No it doesn’t.

The UK Government has been pushing a piece of legislation through Parliament called the Digital Economy Bill, the main thrust of which is to set out how the UK manages its digital economy for the future.

Clauses in the bill deal with such subjects as the broadband tax, which charges each household a fee so that all households can be brought up to a minimum connection speed, and controversial legislation allowing illicit file sharers to have their internet connections blocked.

But buried deep within the bill are some clauses which far from protecting the rights of the creative industry, will actually leave almost no protection against infringement. Section 43 of the DEB deals with Orphan Works. Those are creative works (photos, illustrations, videos) which have become separated from their owners. A work with no identifying metadata, no watermark. A child of a creative mind, lost and alone, waiting for Fagin to take it under his “helpful” wing.

The original plan was to allow museums, galleries and the like to release from dusty vaults tens of thousands of forgotten works, the creator of which is unknown, so they could licence them in ways that would bring much needed revenue to those institutions. However, certain politicians not being the sharpest tools in the box thought it would also be a “good thing” to encompass ALL works whose creators could no longer be traced.

As an illustration, a photo you take on Wednesday morning, post to Flickr by lunchtime, is lifted by an unscrupulous blogger or corporate marketeer by 5pm and so (because they stripped your watermark and IPTC info) created an instant orphan by teatime. Anyone stumbling upon that stolen version will have no idea who took it.

tim of horse meat

Your photos could be stolen and used for anything. However objectionable the context.

Because there is no way to trace that photo back to you, even a “diligent” search (as required under the act) would not reveal your ownership of the photo. So anyone else wanting to use that image just has to pay a made-up fee to a newly made-up UK Government licensing body, and off they’d go on their merry way, using your photos for heaven knows what.

If at some point you happen to stumble upon that use of your photo, you’ll be able to go to the Government and ask for “some” money for its use. Assuming the government can see that you took the photo, and that the user of the photo paid the government some money, or beans or a sheep, you’ll be able to claim a fee (or beans, or sheep, who knows?) This fee may or may not reflect the commercial value of your photo, or the money spent taking it, but no matter. Government knows best.

There isn’t time here to go fully into the nightmare scenario of child identification/model release/property release issues in orphaned works used on the net, or exclusivity agreements a photographer may have had with their client before the photo was nicked. Nor is there time really to go into what happens when a UK company steals a photo held by, oh let’s say, Getty – an American company with lawyers whose litigious fingers are twitchier than a Wild West gunslinger’s, and whose fighting fund would bale out Iceland and Greece rolled into one.

The Digital Economy Bill is complicated enough, but the legal ramifications of what happens when it becomes law and all starts to go horribly wrong, will make your head spin like an owl in a blender.

For further enlightenment, go to: Copyright Action, or Stop 43.

Whether professional or amateur, it’s important (if you care about photography at all) to contact your local MP now. The bill looks set get thrown into the Parliamentary “wash-up” on April 6th, where it will not be debated at all and will become law, so there isn’t much time to react.

Other blogs on the subject:

Irish perspective from professional photographer Neil Danton, but mind the blue language…

Scottish photographer David Robertson gives a view.

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15 comments

  • valerieevans March 25, 2010   Reply →

    Once again, Tim, you’re raising important issues that I don’t see enough creatives making a big enough noise about! May I post this onwards?

    • Glass Eye March 25, 2010   Reply →

      Valerie, post away! Tweet it, facebook it, make sure every photographer, pro or amateur you know understands what’s happening and contacts their MP and makes them realise the car-crash we’re all headed for.

  • sam March 25, 2010   Reply →

    well written tim. wish everyone was giving it the attention it deserves.

    • Glass Eye March 25, 2010   Reply →

      Thanks, but I fear apathy will let this rubbish bill through just as it is. That and vested interest of course!

  • Pingback: Digital Economy Bill « valerie evans March 25, 2010   Reply →
  • Social comments and analytics for this post…

    This post was mentioned on Twitter by IHphoto: RT @TimGander: Just blogged about the #DEB, #DEBill. It won’t just affect photographers, but hapless businesses too http://wp.me/pGClg-9I PLEASE RT THIS!…

  • Sociolingo March 25, 2010   Reply →

    Thank you very much for this post Tim. I appreciate you bringing to our notice another of the unintended consequences of this rushed legislation. I have written (again) to my MP (Nick Gibb con) referring him to your post and asking him to read it. He sent me a supportive letter following my first email on the subject.

    I agree with Glass Eye that apathy and vested interests will allow this unscrutinised bill to go through in the wash-up on April 6th – if as suspected Gordon Brown goes to the Queen on that date.

    • Glass Eye March 25, 2010   Reply →

      Thank you for your support, Sociolingo. Frankly, at this stage, regardless of anyone’s opposition to this bill (whether they’re against orphan works or the blocking of internet access for infringers) I’ll be happy for them to use this info as a weapon to beat this legislation. It is ill-conceived and just plain wrong.

      I’d be happy if Nick Gibb wanted to contact me to find out what the real issues with this bill (and especially orphan works) are.

  • Sociolingo March 25, 2010   Reply →

    Hi again, talking to my brother today, who is with Federation of Small Businesses (FSB) and who has graphic artists on his books, I realised that FSB really should be interested in the issues you raised. I checked on the FSB website and they only seem concerned about the free wifi provision issue and the increased access to broadband. (http://www.fsb.org.uk/News.aspx?loc=pressroom&rec=6007). If any of your readers are FSB members then maybe they could bring this up with their local representative.

    • Glass Eye March 26, 2010   Reply →

      Hi again, yes I had considered that. I’m not an FSB member, but I am closely involved with a local FSB branch. As a non-member of course I can’t really ask them to lobby on my behalf, but I could have a word with my contact. Maybe your brother could put a word in at his local branch to see if they are aware of the situation.

      I never felt there was much sympathy within the FSB for photographers’ concerns (see the Getty threads on the FSB forum), but this issue will cause major problems for both suppliers and users of images, so perhaps we can work together for once.

  • Paul Conrad March 27, 2010   Reply →

    Thanks for the insight Tim. We, on the other side of the pond, are having our own debates over this very issue.

    The problem many will see is that a “diligent” search would mean looking at the IPTC information.

    We creatives have enough problems without having to deal with dumb legislation.

    • Glass Eye March 28, 2010   Reply →

      This side of the pond we’re hoping you will all be getting onto the trade and cultural attaches at our embassies there and requesting they explain how the UK Govt. can licence work not taken within its borders.

      Nobody within government here has a grasp if the reality of this nasty little piece of legislation.

  • Ken of LOndon April 1, 2010   Reply →

    After many years of fighting the Australian Institute of Professional Photographers (AIPP) manged to get the copyright laws in Australia up to a standard which was very fair and very equatable.

    SO I have been following this piece of spam since it was first mooted, it makes me so angry that people just don’t want to pay for the use of someones creative output which they earn their living from.

    The American version is so bad that the intended user really just has to sit up straight on their chair in the cubicle have a quick look around ruffle the papers on their desk and say “I’ve looked, couldn’t find the artist so lets go ahead”

    I have walked away from the table of negotiations while some MoFo lawyer was trying to bully me into a loss of rights contract – I would rather be poorer in money than spend the rest of life seeing one of my images used knowing that I gave it away and now receive nothing for it and have no right to it.

    • Glass Eye April 1, 2010   Reply →

      Ken, I can feel your anger fizzing through this comment, and I share it. My understanding is that the US OW legislation was finally put down with a lethal injection of common sense. Unfortunately, it’s highly likely that if OW becomes law in the UK, the US legislators will have another go. It seems there is a real hatred for anyone with talent trying to make a living from it. Maybe it’s more of a bitter resentment from people with no talent of their own, I don’t know, but it’s petty and short-sighted.

      Thank you for your support. If you would like to do one thing to help, I suggest getting in touch with the cultural or industrial attache at the British Embassy in Australia (if you still live there) and protest in the strongest terms that this legislation will capture non-British creatives’ works too, making a mockery of any domestic copyright laws.

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