Photography is f$cked. This is not a joke.

Photography is f$cked.

From Tony Sleep. Originally on the EPUK list.

“The quaint notion that the author has prime and inalienable rights over
his/her own work, must be able to restrict usage, negotiate a fee, prevent
usage they consider immoral or distasteful, or assert their moral right to
attribution, is about to pass into history.”

The end game is now in sight. The Digital Economy Bill introduces orphan
works 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 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. We’ve pressed for mandatory attribution
to deter orphans being made in the first place, but nobody is listening.
Publishers hate that idea, because it costs them money. Besides they are
major creators of orphans by stripping metadata, and fully intend to take
advantage of not knowing who made the photos they have anonymised. But
they are Industry of great weight and value to the economy, so their
lobbying is listened to and ours isn’t.

So Flickr, Google Images, personal websites, all of it will become
commercial publishers’ free photolibrary. A small fee – to be decided by
Peter Mandelson’s office – 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.

This is a slight improvement over earlier proposals, whereby HMG simply
planned to keep all the fees instead.

Essentially, if photos were cars, so long as the numberplate is missing
(or you can get rid of it and claim it was), you’ll be able to legally
TWOC and use it.

The quaint notion that the author has prime and inalienable rights over
his/her own work, must be able to restrict usage, negotiate a fee, prevent
usage they consider immoral or distasteful, or assert their moral right to
attribution, is about to pass into history.

Of course the few who know about this have lobbied against this legalised
robbery for >3 years. It violates UK commitments under the Berne treaty
and TRIPS. Only a handful of LibDem and Tory peers GAF.

Most of this crap isn’t even going through the commons as primary
legislation. DE bill just allows ad hoc regulation by Mandelson’s office
without further legislation. None of that will ever be voted on.

That’s not all, either. The ICO’s proposed new code for digital
information has some “commonsense” rules that prohibit photography in
public places where anyone who’s in the photograph might be unhappy about
being photographed.

CCTV, full body scans, no problem, but if an ordinary person takes a
photo, this Kafkasesque notion of privacy in public will apply. A photo,
taken in public, is now deemed private data, y’see. Unless it’s on film.

Mindful of the damage this would do to tourism and how much it would piss
off Joe Public to be told he can’t use his cameraphone in the street to
snap his drunk mates, ICO have decided that this lunacy shall only apply
to pro photographers, a small enough constitiency to kick with impunity.
Of course ICO thinks all pro photography is paparazzi harassment of our
beloved celebrities so this is entirely reasonable. Minor considerations
like, oh, journalism, history, social documentary, are all just collateral
damage.

Of course, we already have police and PCSO’s deploying S44 CTA2000 for the
purpose of deprecating photography in public places, so all told, “f$cked”
is looking on the bright side.

Regards

Tony Sleep
http://tonysleep.co.uk

Make sure you follow this discussion in comments…Tony has added quite a bit there.

Use this, and write to your M.P telling him/her what you think of the above. Please.

Discussion (8 Comments)

  1. Jon Read says:

    Thanks for this. I have contacted my MP – I did use some quotes from your article above, I hope that is OK.

  2. davidwhite says:

    Jon, that’s fine. Please use whatever you need, Tony has asked that we distribute as widely as possible.
    Please point this out to anyone it might affect, thanks.

  3. Hi Tony,

    I understand your viewpoint; I’ve been a close follower of the Digital Economy Bill since mid 2009.

    My personal belief is that UK Copyright Law must evolve both online and off. From what I’ve seen the government and their advisers understand this fact in its broadest sense, but don’t understand what it means across the entire digital landscape and real-world. Most MPs still believe the Internet is about Email and Internet Explorer, and demonstrating otherwise is extremely tough – especially when most of the media and publicized discussion about the Digital Economy Bill has been clouded by ridiculous arguments about Illegal Files Sharing and Illegal Music Downloads which of course in their eyes do nothing for the Digital Economy.

    I believe its important that ‘ophan works’ is introduced into the Digital Economy Bill but it should not be applicable to commercial use. I agree that allowing unlicensed use of content and imagery for the commercial gain of others would be an extremely foolish move on behalf of the government, and I too believe it would do great harm within the creative sector.

    However, I believe that an ‘orphan works with attribution’ clause (like creative commons) should be available to education & not-for-profit ventures – freeing up all online content so that it can be used for social good and innovation would prove more valuable than money to everyone, especially in the current economic climate, and in view of driving future education and innovation.

    I am confident that ‘the orphan rights’ part of the Digital Economy Bill will be amended before it is passed, I’ve witnessed various amendments over recent weeks alone. This said, I’m also confident that it won’t be because of photographers and creatives like you and I that an amendment is made, but because leaving ‘the ophan rights clause’ as it currently stands in the Bill would set a precedent for corporates to steal and use each others content, patents and trademarks – with this in mind I’m confident we won’t see the landscape you paint above.

    I have written a few blog posts myself over recent months (which I list below) but I urge you to watch the following TED talk and consider for yourself if ‘orphan rights’ are in fact a negative thing in themselves, or if its just the thought of others making money from your content that bothers you – I say again, ‘orphan works with attribution’ (like creative commons) should be available to education & not-for-profit ventures. I believe the real discussion and concern should be around policing such a system, especially given existing copyright law.

    Please watch this TED Video – http://www.ted.com/talks/view/id/187

    Here’s a blog post I wrote back in November 2009:
    http://www.fellowcreative.com/2009/11/creative-freedom-campaign-digital-britain

    If you are on Twitter please feel free to add the Twibbon as found in the above post.

    • Tony Sleep says:

      Hi Carl,

      I don’t think anyone would take issue with restricted and reasonable rights to use orphans within the library, museum and academic research context. However no rewrite of copyright law is required to achieve that. A simple extension of the fair dealing exceptions in current law would achieve this. There have been extensions since 1988 to take account of evolving technology and requirements. A simple 3 line addition would solve the problem.

      So is this sabotage of creators’ copyright accidental or deliberate? Well, as one of the people who had some small input to the NUJ submission to Gowers, I know that authors’ rights and mandatory attribution have been forcefully lobbied for as a precondition to orphan usage. It is illogical and invidious to, on the one hand, allow orphaned work to be seized from the unknown creator, and on the other, to do absolutely nothing to prevent the creator’s identity from being removed in the first place. Yet that is the government position.

      Gowers ignored these objections. So the same points have been made to David Lammy’s consultation, and anyone else who’d pretend to listen. The IPO has had to suffer every photographers’ representative organisations concerns, from BAPLA and AOP through to NUJ and the RPS. They now regard photographers as a load of troublemakers. And at the end of it all we now we have this steaming pile of toxic dreck hurtling through Parliament in a desperate rush to beat the election. Whatever else, they cannot possibly claim they didn’t know, that nobody told them. They did. We have. It is at best considered and deliberate sabotage of photographic copyright. The kindest you could be is to say that they don’t understand what they’re doing.

      And I want to be clear about one thing. This is NOT an issue that primarily affects pro’s. Pro’s are, for the most part, doomed anyway. Simple economics of media evolution are driving commercial users toward free or very cheap content, sourced from users, microstock, hobbyists. Pro’s are usually very careful to control their work, to assert copyright, fill in IPTC fields and try to be easy to find, because carelessness will cost them money. This is not the case with amateurs, who mostly have a much more casual approach. They aren’t creating for money, and have little patience with boring stuff that gets in the way of the pleasurable bits. They upload copiously to photosharing sites that strip IPTC during resize (if it was there in the first place), and often post using untracable nicknames. It’s their work that will be easiest to claim as orphans, relieving commercial publishers of the tedious necessity of having to ask. There have already been many instances of commercial misuse of work taken from Flickr. The Digital Economy Bill will legitimise this sort of pillage, and it is important that amateurs realise this. Flickr terms of service can do nothing to someone who isn’t a member. Besides, Google images is an even better resource for orphan prospectors anyhow. Have a look at http://copyrightaction.com/blog/orphan-realities for a quick illustration of how easy it is to find orphans.

      I’m not even going to get into the ICO’s gymnastic contortion that public places are private as far as photography is concerned. That is slightly less urgent, the door a bit less closed. But the Digital Economy Bill in its current form is a mother of all copyright grabs. It isn’t about “free culture” at all, it is about a monstrous commercial landgrab of the intellectual property of ordinary people who create images. Government has explicitly refused to remove the commercial aspects.

      Having said that, nobody, not me, not Parliament, really has the slightest idea just how it will pan out because the detail of what is an orphan and how rights usage will be managed is being left to the whim of Secretary of State Peter Mandelson who will devise the “regulations” that Section 42 116A & 116B enable. Even the Select Committee on the Constitution objected to this open-ended avoidance of parliamentary debate. It remains, so MP’s can’t even know what they are passing. But if it is passed, it will be too late to influence at all.

  4. Just to add a point to my suggestion and belief – if work is orphan and creator is unknown ‘attribution’ refers to source, where it came from, not who created it.

  5. Tony Sleep says:

    This has now matured into a more detailed discussion and campaign at http://copyrightaction.com/forum/uk-gov-nationalises-orphans-and-bans-non-consensual-photography-in-public#comment

    There is also a template letter at the site for sending to MP’s, which is also a summary of the DEB orphan licensing problem. Please share freely. http://copyrightaction.com/digital-economy-bill-mp-letter-template

    Regards
    Tony

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