From some of the things being written in the last few days you’d think that the sky is about to fall on photography’s head:
“@stop43uk: #Stop43, This act will kill the Media industry. Photographers, artists, novelist and music industry. STOP IT NOW”
— Lewis Whyld (@LewisWhyld) May 1, 2013
That’s just one of a tirade of alarmist tweets and posts about why the UK’s new Enterprise and Regulatory Reform Bill will cause photogeddon in the UK. The law will give individuals and companies the right to exploit orphan works. That’s work where the copyright owner cannot be traced.
According to STOP43, the lobby group trying to get the changes to the legislation on copyright dropped:
Photographers have just been royally f..! UKGov to allow wholesale image theft. Say goodbye to your rights! ow.ly/kyNIK
— Stop43 (@Stop43orguk) May 1, 2013
On their website they go even further:
You think you own your own photographs? NOT FOR LONG.
The Enterprise and Regulatory Reform Act will allow anyone to exploit your photographs without your knowledge, permission, and payment to you.
If you keep your pics indexed online that is about as true as stating that the MMR jab causes autism. They’re not the only one’s pushing this nonsense (I’ll explain why I think they are spreading such propaganda at the end of the post).
AFP photographer Leon Neal writes in a post titled The Race To The End that the act effectively allows ‘any image found online to be used for free, providing the use has taken four seconds to make sure it hasn’t got a watermark slapped across it, or still has its metadata intact.’
Edmond Terakopian thinks that the UK government might be trying to kill off photographers:
‘the majority of websites, social networks and so on strip out ALL of this data (metadata). Your work, even something you shot a minute ago and uploaded, just became an orphan work. As such, it can now be used for free and for whatever purpose the thief of the image wants to use if for.‘
Terakopian goes on to suggest that you should watermark any images you put online. And whilst that might be OK for Edmond’s portfolio I don’t think any of his clients will accept a clause in a contract that states they can use the photos they’ve paid for on their website only if they publish the watermarked versions. Other photographers are preparing to take most of their work offline, which is possibly the worst thing you can do if your photos have already been published on the web and you don’t want people to steal and profit from your work.
The truth is the law will require that before an individual or a company attempts to exploit an orphan image they will need to check if the image has a traceable owner. On BJP Laurent Olivier writes
‘While publishers seeking to use an orphan work will have to demonstrate they have done a reasonable search for the image’s owner, a large number of online services, such as Facebook, Twitter and Flickr, strip the metadata from uploaded images, creating millions of new orphan works each day.’
Olivier is right about online services stripping the metadata but wrong, along with most of the people from the photography industry predicting photogeddon, that this creates ‘millions of new orphan works each day’. That’s because the definition of an orphan work is not a photo that has been stripped of its metadata but ‘is a copyrighted work for which the copyright owner cannot be contacted‘. If you’ve published a photo on your Flickr or Facebook page then, whether it’s stripped of its meta-data or not, it’s clearly not an orphan work.
Of course nothing is to stop someone nicking your picture and then publishing it elsewhere without any details. This happens all the time but as stated above it only creates an orphan work if the originator of the photo cannot be traced.
We all know it’s as easy as a right click to steal images from the web. The real question photographers need to face when the bill is enacted is how easy is it to trace me as the copyright holder of my images? Because if it is easy to trace the image back to you then it’s very difficult for someone to claim in court, or otherwise, that they’ve done a ‘diligent search’. That’s exactly what the law will require of individuals and companies before they exploit an orphan work.
So to test the arguments being made against the act I’ve stolen, and stripped of meta-data, the following images. They were taken from Facebook, Flickr and a personal website.
Lewis Whyld Photo (see update)
How long would it take someone with access to the web to work out whether these photos are orphan works, as those predicting photogeddon claim, or have identifiable copyright holders?
I’ll tell you how long. Using google image search less than a minute for each one.
Guess who took the top three photos? Leon Neal,
Edmond Terakopian (see update) and Lewis Whyld. Bang goes the theory that the new act is about to ‘kill off the media industry’. The fact is that as the easily identifiable authors of their work, their rights, or the rights of others to exploit their work, won’t change.
What might this mean to you as a photographer? Probably the biggest mistake you can make is to take your photos off the web because if they are published elsewhere, say on a client’s website, without a copyright notice ,then it’s very difficult to trace them back to you, thus potentially making them an orphan work. That said before they are exploited you would still expect the law to conclude a diligent search should include contacting the owners of the website where the images are held ~(UPDATE: actually it will be a much more complex process to register an image as an orphan work, see the post here). What you need to do is check that the place where you hold your pictures is indexed by google. That way they should always show up as belonging to you in a google image search.
So why is STOP43 and a number of photographers and photo organisations scaremongering? I think the answer is simple and comes back to cash.
If a huge number of photos became available to use for free, because they are genuine orphan works, then why would you bother licensing an image from Getty? That’s a good reason why they, STOP43 and over 70 organisations representing photographers have protested against the clause.
In that sense the act is a real threat to the finances of companies and photographers who make a living from selling stock. Not because people will steal their images but because they won’t need to. They’ll be able to access genuine orphan works for little or no cost (UPDATE: According to the IPO this isn’t true. See the post about how orphan works can be registered and sold here).
This is bad news for photographers and is a good reason to fight against the new law. As is the fact that photos can be taken of pictures not on the web and turned into orphan works on the web (UPDATE: Again according to the IPO not true. See the post here).
It’s just a shame that instead of being honest about the legislation and targeting the actual damage it may cause, STOP43 and others have taken to pumping out seemingly paranoid and inaccurate propagada.
An earlier version of this post stated that STOP43 is funded by Getty. This is not true.
The conclusions about the damage this bill may cause are refuted by the IPO. They have prepared a Myths and Facts response to STOP43 here.
Edmond Terakopian has asked duckrabbit to take his photo down. I think it would be covered under fair dealing if the proper copyright notice has been included. However I normally take down a photo when asked to and so have removed the screengrab. Simon Crofts has written to warn me this is a criminal act (popping someone else’s photo on our blog) that is punishable with up to two years in prison (or maybe 5?) and a massive fine. That explains why the prisons in Britain are so full (I’m awaiting the knock on the door).
If you were wondering what the photo is, I have embedded it from Terakopian’s Flickr page below (until he disables the embed feature which he can do at any point and remove the photo from this site but you can see it here). It seems a bit contradictory to accuse people of stealing your images when you host them on a Flickr page that provides people with an embed code, asks them to share and then feeds the image to that page!
Lewis Whyld has asked for his photo to be removed with the following comment:
‘I didn’t know anything about duckrabbit until now, but I’m genuinely left with the impression that it’s a self serving site happy to rip-off photographers in an attempt to drive traffic. I’d like to opt-out please.’
I’m not sure Lewis’ picture, lovely though it is, was driving the traffic to the post, but he’s entitled to think so. I don’t know why he’s bothered though, because according to his tweet the media industry is about to be killed. He’s out of a job and his photos are worthless.