The Government’s Reply to Hargreaves

23rd August, 2011

The government’s reply to the Hargreaves Review on Intellectual Property accepts its main conclusions. Hargreaves was instructed to focus narrowly on the economics of IP and economic growth, and he did ( mostly ) as he was told. So it is no surprise that he has completely ignored demands for the full implementation of moral rights in UK law. The most important of which, for photographers, is the right to our names by our pictures. This omission however does not square with his principal economic innovation, the Digital Copyright Exchange, where ” ownership information is clearly a prerequisite for the marketplace “. Or to put it another way, moral rights are an essential precondition for developing the IP economy. Joined up thinking requires moral rights legislation, now.

Moral rights should also be a precondition for any orphan works legislation. Legislation, that is, to allow the publication of our photographs without our permission – if we cannot be identified or traced as owners. Legislation the government now threatens to introduce, permitting not only cultural but commercial use of orphan photographs. Or rather, re-introduce, as this is the Clause 43 of the Digital Economy Bill we defeated last year. We now have Clause 43 Mark Two. Which is no more a done deal than Clause 43 Mark One, because anything requiring parliamentary legislation – as this would – is unlikely to reach the floor of the Commons before 2013. The significance of that date is that by then Europe may well have issued its own OW proposals ( see previous article – http://tinyurl.com/3k53uzu ), in the form of a directive with which UK legislation would have to comply. The EU draft directive is radically different from Hargreaves’ recommendations, in that it provides for limited, and non-commercial use of orphans. So there is still all to play for. All organisations represented by the British Photographic Council ( see link below ) are opposed to commercial use of orphans works.

HMG also departs from Hargreaves here, in one crucial detail. Hargreaves proposed selling our orphans for a nominal sum, taking out cost in the name of growth. Orphan works as the nation’s “treasure trove”. Instead HMG propose selling orphans for a commercial market rate ( however impossible that may be to estimate ) and then paying any authors who might come forward later. Thereby conceding, incidentally, that orphans are and remain our property, which they intend to sell without our permission. This greatly reduces, though it does not remove, the risk of Hargreaves’ big idea, the Digital Copyright Exchange ( again, see previous article ), becoming amongst other things an orphans factory. For Hargreaves the DCE was to become the first – he didn’t quite say the only – place for a “diligent search” for an orphan’s owners. Professional photographs would be registered inside, those outside – though he doesn’t quite say this either – would be fair game. Now the government intends the commercial use of orphans to be monitored, at least insofar as their use must be paid for, and “diligent searches” will have to range outside the DCE. But it is still not clear if photographs inside the DCE will be granted greater protection than those outside. There should be no first and second class justice ( it would also be contrary to international treaty obligations ).That said, the idea now has great potential, and will be open to us all. It is to be free at the point of use, essential if the idea is to take off, and running costs met by a charge on transactions. Silence however on who would fund the launch ( Hargreaves suggested the IPO ).

The other recommendations include a fast track small claims route for copyright infringement, but the government has ducked including copyright into fair contracts legislation. Format shifting, aimed at pacifying voters who want to copy music from DVD’s to iPods, is to be legalised, though it is not clear what that has to do with economic growth ( surely it will reduce sales? ). Here we photographers have fallen off the radar screen – no account is taken of the possible effect on print sales. The government also proposes fair dealing ( use without payment or permission ) for parody, not aimed specifically at photographers, but again the consequences for us have not been thought through.

For more information here are links to the reactions of some of the main organisations representing photographers. The first three ( AoP, BPC and NUJ ) provide comprehensive summaries of the main points, the fourth ( Stop 43 ) in depth analysis:

Association of Photographers

British Photographic Council

National Union of Journalists

Stop 43

The Government’s Reply to Hargreaves – UPDATE

The Intellectual Property Office ( IPO ) has now announced a three month consultation starting this October on legislation arising from the Hargreaves Review. Nothing is to hold up their plans for Orphan Works (OW)  and Extended Collective Licensing ( ECL ) schemes. The IPO has de-coupled the Digital Copyright Exchange ( DCE) from OW/ECL in order to clear the decks. The DCE will not be run by the government, does not require legislation, and is on those grounds excluded from the October consultation, which will focus on legislation alone. The IPO hopes it will be set up simultaneously, and privately, but failing that OW/ECL is to go ahead regardless.

 The DCE had been central to Hargreaves’ plans for the Diligent Search which will be essential before any work can be declared an orphan ( and then used without our permission ). Alternative search procedures will therefore be central to the forthcoming consultation. Searches would be greatly simplified, and the need for searches largely obviated, if we had the right to our names on our pictures. The IPO has no intention to legislate for that either. Creators will have to re-introduce the case for moral rights during the consultation – they do clearly require legislation – but nobody is listening. The IPO is racing ahead with OW/ECL, knocking all obstacles aside, in the hope of establishing a UK scheme before Europe issues its Directive.

There is however one major obstacle that neither they, nor anyone else, has so far considered. Stop 43 has drawn to the IPO’s attention the possible consequences of the recent judgement in the case of Twentieth Century Fox ( and others ) versus BT. Brought under the CPDA 1988, Mr. Justice Arnold ruled that:

The legal context for the present application consists primarily of (a) domestic and European human

rights legislation and (b) three European Union directives relevant to copyright enforcement and the domestic

implementing legislation.

BT have stated that the action was a test case and they will not appeal the judgment. It therefore stands as UK case law and sets legal precedent. By stating that copyright is a property right protected by human rights law Mr. Justice Arnold has thrown a legal spanner into the IPO works. All UK legislation must comply with human rights law. The IPO will now have a difficult job explaining how using our pictures without our permission through OW/ECL schemes will not constitute an infringement of our human rights. Watch this space.

 

 

 

 

2 Responses:

  1. Thanks for this. I copied the update to the Royal Photographic Society’s forum and put a link there to the full article.

    It would be interesting to see some NUJ photographer presence on the forum – it’s free and you don’t have to be a member of the RPS to use the forum. Simply sign up on http://www.rpsforum.org/index.php?app=core&module=global&section=register

    All the best

    Wolf