It is reported by the British Journal of Photography and the Association of Photographers that major concerns are being raised by a number of Arts institutions about the provisions in Clause 68 of the Enterprise and Regulatory Reform Bill, that is now before the House of Lords.
European organisations, namely the Association of Photographers in the UK and Pyramide Europe (who represent photographers, illustrators, graphic designers and other visual artists in a number of European countries) and Finnphoto (who represent Finnish photographers) oppose the new provisions on orphans works as set out in the Bill and have set this out in a letter to Vince Cable, UK’s Secretary of State for Business, Innovation and Skills dated 22nd November 2012.
In a letter written by Boris Fagerström (President of Pyramide Europe) and supported by Mikko Säteri (Executive director, FINNFOTO) to Vince Cable, they say as follows:
“We assert that the majority of photographs, visual works and illustrations deemed to be “Orphan works” in the UK, will be works created and owned by foreign persons and businesses.
Involuntary injection of these foreign works into a UK Extended Collective Licensing program or similar legalized infringement scheme with neither the knowledge or consent of the foreign copyright holders is reprehensible, contrary to the letter and spirits of UK and other European copyright laws, and unquestionably violates the provisions of Berne and TRIPS. In our opinion, by allowing commercial use, it also gives wrong signals on the interpretation and intentions of the EU Directive on Orphan Works.
If enacted, the Bill will permit foreign works to be used without the permission of or credit and compensate the rights holder. The prospect of unknown, ongoing unlicensed usage of foreign works in the UK will prevent any rights holder in any other country from licensing exclusive right to any party. Thus the value of the works during their copyrighted lifespan will be considerably devaluated.
By legalizing the unlicensed exploitation of copyrighted works created and owned by foreign rights holders, the Bill will conflict and in some cases prevent their normal exploitation of the works in their own country or market area, unreasonably prejudicing their legitimate interests.
Foreign copyright owner’s possibility to monitor Orphan works listings and notifications in the UK is difficult, time-consuming and costly and not always fair. The registry process of foreign copyright owners in the UK is not realistic and possible to all appropriate persons. Basically the UK has no legal right to determine the fees or other compensation in exchange for exploitation of their copyrights in the UK without laborious negotiations with representatives from every countries or individual copyright holders.
If the use of foreign works in the UK is permitted, we can anticipate international legal court cases and prolonged processes that are in no parties favour……………..”.
The letter ultimately urges the UK government to “work with stakeholders and associations representing the copyright holders to redraft the Bill so as to protect and maintain the exclusive rights of foreign and UK copyright holders, in compliance with Berne, TRIPS and the spirit of Copyright legislation around the world.”
This letter follows on from another letter (as reported on the website of CEPIC Coordination of European Picture Agencies Stock, Press and Heritage) written to Vince Cable only a few days earlier by US based organisations namely, ASMP, Professional Photographers of America, National Press Photographers Association and Picture Archive Council of America. They too raised similar concerns about the proposed changes to UK Copyright law, Clause 68 and the use of orphan works.
In this letter they state “Legalizing the usage of foreign works without the knowledge and permission of the copyright owners will jeopardize the exclusive rights of those owners.”
This is becoming a rather loudly voiced concern that is being supported and raised by major creative associations who represent the rights of creatives.
The major concerns seem to be about the ability to regulate the use of orphan works, whereby companies could very well remove metadata and claim artwork to be orphan when in fact it is not “orphan” and the owner is in fact identifiable. Hence there are strong calls for removing metadata to be deemed a criminal act.
There are concerns about the registration process too. The proposed ways of registering foreign copyright owners is considered to be unrealistic.
Let’s hope the UK Government listens to those who ultimately represent creators, to not do so ultimately may economically harm the UK and could lead to creative talent looking to other markets.
Please see my earlier article on the EU Directive and watch this space for developments on this issue.