Free Culture

Digital Economy Bill Orphan Works, DACS and Murdoch

The end game is now in sight. The Digital Economy Bill is now expected to become law within the next 6 weeks. It introduces orphan works usage rights, which – unless amended, which HMG says it will not – will allow the commercial use of any photograph whose author cannot be identified through a suitably negligent search. That is potentially about 90% of the photos on the internet.

Copyright in photos is essentially going to cease to exist, since there is no ineradicable way of associating ownership details short of plastering your name right across the image. Photographer’s organisations have pressed hard for mandatory attribution to deter orphans being manufactured. Early in the consultation process the IPO accepted the irresistible logic that it was completely unreasonable to permit orphan use without a balancing requirement to not orphan photos in the first place. However, the IPO recognised with dismay that this would mean “taking on Rupert” (Murdoch).

Publishers have a long history of opposing our moral rights. They were responsible for the feeble and unenforceable moral rights clauses in the 1988 Act. They want their branding, not ours, and they want maximum freedom to exploit our IP at minimum cost and inconvenience.

The IPO avoided confrontation with Murdoch, who does have something of a rep for being a vital friend in an election year. The Bill contains no deterrent to the creation of orphans, no penalties for anonymising your work, no requirement for bylines. It is a luncheon voucher for industry hungry for free and cheap content.

So Flickr, Google Images, personal websites, all of it will become commercial publishers’ photolibrary. A fee will have to be deposited with a collecting society in case the owner spots the usage. The author who discovers his work has been used as an orphan can then make a claim and receive a percentage of the peanuts, after the collecting society has had its share, and the government its share. […]

I disagree with this argument for two reasons.

Firstly, the national press in the UK already uses copyrighted photographs that it finds on the internet without permission, pay or attribution. No additional legislation is required to allow this, they’ve already given themselves permission. The problem of unattributed, unpaid exploitation of work is therefore a current one that needs tackling rather than a future one that can be prevented.
Secondly, the best way of tackling this problem is precisely the one that is argued against in the blog post above – the use of a professional  collecting society. I say this because of the example of DACS, the Design and Artists Copyright Society. In 2008 (the most recent year for which figures are available) DACS paid out over 3 million poun to its members that it had recovered for unauthorized use of their work.

DACS has expanded to cover the artists resale right and could easily expand to handle orphan works. It is big enough to take on big business, and it supports the Digital Economy Bill –
“DACS, the Design and Artists Copyright Society, today welcomed the Government’s publication of the Digital Economy Bill, in particular the provisions for the modernisation of the copyright licensing system and access to orphan works.

The bill paves the way for the introduction of extended collective licensing which will make it simpler for visual works to be made available, while ensuring creators’ rights are respected.”

I do not welcome the Digital Economy Bill, due to its illiberal and economically harmful “three strikes” legislation and other detrimental measures. But if the bill is passed then the responses by organizations like DACS to the orphan works measures that it contains will help photographers, illustrators and artists to see their work used without payment or attribution much less, rather than much more.

To be blunt, photographers who are panicking about the orphan works part of the Digital Economy Bill are panicking about not managing and exploiting their rights effectively. Collecting societies are not perfect; they tend to oppose Creative Commons licencing and Fair Use, and they are middlemen. But they provide a service that fits not only the future problem of orphan works legislation but the current problem of a mass media that simply doesn’t care about photographers rights.

This may be a rude awakening for some photographers. This is also an opportunity to address not just future issues but current injustice as well. The photographic community should seize it, whether or not the Digital Economy Bill becomes law.

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5 replies on “Digital Economy Bill Orphan Works, DACS and Murdoch”

To be blunt, you don’t know what you are talking about. What works for FOSS does not transpose to photographs. There is no secondary activity such as support, installation, training and customisation for creators to extract revenue.
Moreover you are mixing up two different things, orphan works licensing and extended collective licensing. Both however challenge and undermine the creator’s exclusive right to decide whether and on what terms his/her work shall be used. Aggregators, publishers and distributors will be advantaged, no-one else.
Extended collective licensing will be, at least in principle, an arrangement where a majority of creators opt for the arrangement. Whether or not an ECS will operate in effect as a closed shop is a question nobody seems able to answer, but the temptation will arise at organisations like the BBC who are one of the prime movers. Anybody who opts out will do so to maintain their pricing above that on offer, and that will usually mean they get no work. Anyone who wants to sell work will have to accept the ECS deal, or less.
Orphan works is a whole different ballgame. Understand that although the public face of pressure is the British Library and similar cultural institutions pressing for a means to liberate historic works in the public interest (and who could object? not us), publishers are solidly behind it. In the USA Google was the major lobbyist.
This isn’t Google philanthropy, but empire-building big business 2.0. Google is a parasitic aggregator. It extracts value alright, around 40% of web ad spend worldwide, and very little flows to creators.
This is the new media model. Publishers know perfectly well, as they watch the old print subscription model die on its feet, that they have to move to equally free content in order to make the ad sponsored model work for them too. Pro photography cannot survive in this ecology, nor eventually can professional journalism. That is just a Darwinian fact. People cannot live on nothing and will no more able to do so than a plumber, taxi driver, lawyer or banker would.
Is it democratically healthy to constrain coverage to that which can be provided by relatively wealthy part-timers among the 25% of the world that is online? This is a much bigger debate that isn’t going to happen because the public as a whole is voting with its wallet. “Free” and freedom appear synonymous to them, but the reality is that professional content will only be generated by those funded by vested interests (PR, marketing and political).
That is propaganda for the status quo. MSM have been going down this road for 30 years, conflating the interests of readers with the interests of advertisers to support their profitability. Unsurprisingly most have undercut reader trust. The “free content” model that defines the web is simply the end point of this long process of disingenuous seduction, albeit papered over by a veneer of participatory culture idealism.
In this context the DEB is a first intellectual property equivalent of the C18th and C19th Inclosure acts that drove subsistence farmers from their smallholdings on common land. The motive then was to enable the formation of modern, larger, efficient farms by landlords, who were supposed to build new model houses for the displaced farmers and re-employ them at fair wages. This almost never happened. Most of the displaced population were forced to migrate to the towns and cities and ended up subsistence labouring in the mills and factories of the industrial revolution.
I have in many places seen comments such as yours, that amount to “it’s all photographers’ own fault” or that pro’s think the world owes them a living. Few pro’s ever get into it for the money, most bump along on incomes that a school-leaver would sneer at. We tend to get into the business as amateurs but past a certain point full time commitment is the only way to progress. It is not that we think we are owed a living, it is that we do not owe businessmen free work for them to profit from. Amateurs who have day-jobs are less picky.
There simply is no way to “manage and exploit” rights effectively in an ecology where theft and subversion of rights is normalised among public and publishers alike. The only parts of pro photography that will survive are those limited viewpoints that profit the status quo : celebrity, lifestyle, sport, consumerist dreck. Where does that leave your “free culture, free society idealism”? Firmly in the hands of unaccountable corporates who have adapted to the web 2.0 opportunity and found ways to tax the public via ad budget on everything they buy, to monetize our privacy, to turn us into products that they sell. Be careful what you wish for, Rob.

My father was a professional photographer. I’ve seen how much time, effort and money goes into a professional photo shoot, how hard it is to fulfil a brief and how much better a professional photograph is than an amateur one. That’s the “service model”, but I’m not arguing for Free-Software-Style monetization in this article. I’m arguing for photographers exploiting and defending their copyrights if they wish to do so.
The take-home point from this post for current photographers is that you are *already* in trouble. Orphan works legislation will not make things any worse than they already are *in reality*. The *solution* to both problems is to organize and to join or create your own big unfriendly organization that can kick Google where it hurts.
I share your concerns about how free culture rhetoric might play into the hands of illiberal media barons. I work with organizations and individuals to ensure that freedom means positive as well as negative liberty for individuals. And I got a copy of “You Are Not A Gadget” today. A print copy, the UK hardback version…

We agree completely about “already in trouble”. But orphan works licensing and extended collective licensing look like additional trouble. The DEB fixes none of the inadequacies of the 1988 CD&PA (which by the way were courtesy of the same publishing lobby). Feeble moral rights, including attribution, with no practical means of enforcement as damages for omission cannot be quantified; infringement damages that are limited to pretty much what the infringer would have paid had they negotiated, ensuring that infringement is a sound business practice ; unenforceable law about metadata removal as it is impossible to prove intent to facilitate or conceal infringement.
All these have contributed to why there is an orphans “problem” now. Government has been lobbied extensively by every photographic representative organisation since 2005 on to fix these things as a necessary and just quid pro quo for any weakening of creators’ exclusive copyright. They haven’t taken any notice. Orphans will continue to be mass-manufactured with impunity. And Government is setting up what amounts to an agencies to exploit this resource in such a way that commerce will quickly displace the initial cultural and public interest excuses.

Despite being an apparent gift to the press, the Orphan Works legislation is a gift in disguise to photographers in that it spurs them towards a way of doing business that does not rely upon copyright.
Photographers MUST move to a business model that involves the sale of their work – not the monopolised sale of copies of it.
All published photos are freely copyable, just as all published music is freely copyable. This is a fact of nature. This is not a failure of the law, nor can it be remedied by law.
No-one, not even a corporation can extract a photo from a photographer by force. The photographer can sell their work, but they cannot stop people copying it.
The copy is not the work. Sell the work, not the copies.

While any legislative move towards regulating orphan works must be welcome, I cannot help but feel that the worst option possible has been chosen, namely licensing. I agree that the wording is broad enough to include other societies to act as beneficiaries and collectors. I used to be in favour of the licensing solution, until I realised that what is being discussed really is to give licensing rights almost exclusively to collecting societies. I was in a conference recently on orphan works (there are some materials on it to be found by shared files site), collecting societies were practically tripping over each other shouting “choose me!”I share the views that ideally we would want an exception – however the wording “authorising a licensing body or other person to do…” + propositions in (2) I think means that if anything, non collecting societies can apply directly to the Secretary of State for a non-exclusive licence, which I believe places these proposals in a very favourable position to academics/cultural heritage sector etc (as well as complying with Berne and renumeration to rights holders should they come forward).

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