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Your Chance to Respond to UK Copyright: The Case for Change

Jan 19. 2012
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Interior of the House of Lords c. 1896. Source: Topfoto

ByJohn BaleanYou should be aware that the UK Government is planning to implement some changes relating to copyright and many of those are based on recommendations made in the Hargreaves Review.

What you might not realise are some of the key issues that will have an impact on Photographers/Agencies and the wider Picture Industry if the proposals go through.

The main issues currently in a Consultation on Copyright stage are:

  • Orphan Works
  • Extended Collective Licensing
  • Codes of Conduct for Collecting Societies
  • Exceptions to Copyright – including private copying, non-commercial research, archiving and parody
  • Creation of a Copyright Notices Service from the IPO (Intellectual Property Office)

BAPLA, EPUK and other trade bodies are lobbying to defend in the best interested of image creators and licensors but individuals and companies also have the right to express their views and if it is strongly advised that you be aware of the recently released Consultation on Copyright document and that the closing date for responses is 21 March 2012. If you are not a member of a represented trade body it is very important you respond, if you are represented your trade body should be able to explain some of the key concerns and take your comments into the lobbying stage but that does not restrict you from an individual response. See page 11 of the Consultation document for How to Respond and also page 165 for a number of Copyright Consultation Events which invite people to have their say on a first come first served basis.

Thoughts to consider are:

Orphan Works:

If you have ever had an image published without a credit (or possibly an incorrect credit) you will realise how easily it is for an image to enter into ‘orphan’ status (i.e. not able to be traced back to the copyright holder). Orphan Works legislation will allow users to publish ‘in’ copyright works after a ‘diligent’ search fails to find the author of the work. There are instances where this makes sense but the industry needs to be clear on the safeguards and will those safeguards be at the expense of the copyright owner e.g. a paid copyright registry system? If your work becomes and is used as an Orphan, how, or even will, you be able to claim back any compensation for the orphan usages? Do you want to spend hours trawling through a (or multiple) orphan works registries to claim back your copyright?

Extended Collective Licensing:

This would allow collecting societies to licence for the mass clearance of collections of works which may include orphan works and out of commerce works. This seems to be entirely user focused and will only create an extra barrier between the copyright holder and the end user. Of course a mass user will want to clear everything in a single licence but will the user expect a bulk discount fee? Which asks the question, who sets the fee? how are the licence revenues distributed on to the copyright holders? It is stressed that ECL is voluntary and there is an opt out to ECL but what are the safeguards of opting out? The Collecting Societies are supposed to track down all the rights holders but is that before or after they have licenced? If a licence fee has been paid then how do the opt outs then negotiate with the licensee? Will the work already be published by then? How many more Orphan Works will be created in the process? The problems with this issue are so lengthy that it is very concerning to me that this consultation seems to be HOW to introduce rather than IF to introduce.

Codes of Conduct for Collecting Societies:

This really relates to the above. The Collecting Societies are “Authorised” by the Government but under what conditions. The move here is voluntary codes of conduct for fairness, transparency and good governance. How many collecting societies will there be? Will Collecting Societies replace picture libraries, agencies, photographers and any form of direct negotiation with licensors?

Exceptions to Copyright:

Amongst other things this will allow limited private copying, but how restricted is limited? Does this mean private individuals can use images on their blog or facebook page without restriction or maybe make a one-off personal T-Shirt or poster for the bedroom wall (Is the thought here “it’s going on anyway so make it legal”). Should Educational use copying be ‘Fair Use’ i.e. exempt from copyright? Should social institutions such as hospitals, care homes and prisons be included in this exception too? Should Museums be allowed to digitise and have multiple copies (assumed for back-up purposes) of their collections even if they don’t hold all the copyrights in them? Should a company be allowed to scan every book in existence for “Research Purposes” regardless of the copyright of text/pictures/illustrations? There is also a proposal to permit copying in order to advertise a public exhibition and to apply this exception to advertising on the internet will that prejudice the interests of the owners of copyright in the works being advertised? and if you don’t like all these exceptions can you override them by putting it in a terms of use contract? … possibly not any that will be enforceable against the law.

Creation of a Copyright Notices Service from the IPO (Intellectual Property Office)

Probably a good idea but this quote from the Consultation might be poignant when relating the new Copyright Notice Service to that of the existing Patent Opinion Service “It is low cost, at £200, quick (opinions are typically issued within three months)….” so might not be too useful for the cover of tomorrow’s newspaper, or indeed if one has a few follow up questions anything that has a publication date before the next copyright review but at least the thought is there.

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