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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