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.

It’s a seductive take: right now there are many reasons why the “concerned photographer” (a term current back then) might think their chosen medium is on a downward path. Magazines, and many newspapers, are dominated by celebrity and lifestyle trivia, with virtually no space for serious picture stories; staff photographers on the nationals are an almost extinct species; freelancers are ten a penny, their ranks swollen by digitally-equipped wannabes and hobbyists prepared to work for peanuts; commission rates and repro fees have been static or falling for years, and copyright is under threat from big business interests and business-friendly legislators. Many photographers are feeling very hard pressed indeed.

The days of news weeklies filled with extended picture stories were undoubtedly a high point in the relatively brief history of print photojournalism, but their demise was not the end of the line. Today, the web is spawning new outlets and multimedia forms that expand the ways in which photography can be used to tell stories. And pictures are everywhere, made and seen in numbers and formats that would have been unthinkable before the advent of digital technology. It is true that the majority are dross, and too many picture editors seem happy to make choices based on cost, not quality, but the new technology has created at least as many opportunities as problems.

Many of those problems are the result of its revolutionary impact on publishing. The industry is struggling to adapt to a completely new business model – or possibly several of them. And it’s only part way done. The big question is, how do you make money distributing content on the web, when everyone expects it to be free? Cut costs with copyright grabs and rate cuts? Boost revenues with paywalls and advertising? Probably all of the above and more, with no-one sure what is going to work, and who will go to the wall.

We are in a period of transition, but the death of photojournalism is not inevitable. Sooner or later, viable revenue streams for publishing on the web will be established by the big corporate players, and smaller niche companies will follow in their wake (or vice versa). Who knows – even print might survive in some form or other. However it works out, there will still be an enormous demand for photography. And if paid-for content is to stand out in a web awash with oceans of cheap-and-cheerful mediocrity, dross will not be good enough. Quality will be at a premium, and quality will only be possible if the new reality is a sustainable one for photographers. Cutting rates and grabbing rights isn’t going to work in the long term.

So maybe there are good old days still to come. Of course, to get to there we have to find ways of surviving the short term. Undoubtedly, as a first step, that survival requires a vigorous defence of rates and rights. As for what else – answers on a postcard, please.

Phillip Wolmuth is a freelance photographer and branch committee member. This article originally appeared on Phillip’s blog.

Comment pieces from branch members are always welcome. Articles should be 400-600 words long and sent to editor@londonphotographers.org

London Freelance Branch Secretary Mike Holderness will give a visual presentation offering tips on how to use the internet to locate images which have been used without permission and identify who is culpable for the bill. Another speaker on the same subject TBA.

Any motions to the branch should be sent to the branch secretary prior to the meeting.

Facebook Event Google Map

Convergence – Should we adapt & how?

At last months branch meeting we heard from film editor Simon Ruben and photographer Edmond Terakopian who talked about how photographers could adapt their workflows to include video and audio. As well as some of the pitfalls that photographers moving to video can fall into.

PCSO unlawfully deleted photographers images

Branch member photojournalist, James Mackay, represented by Chez Cotton, head of the Police Misconduct Department, at leading civil rights law firm Bindmans LLP, has succeeded in a complaint against the British Transport Police after he was unlawfully ordered by one of their officers to delete photographs he had taken on the basis that he “was not allowed to photograph the police.”

Victory Flashmob – s44 is Dead!

There was a great turnout at the Victory Flashmob on Sunday 4th July with around 60 of us happily snapping away, free from police harassment. We’ve rounded up some of the coverage from the flashmob.

First Aid training for photographers

Last month the branch held a Emergency Life Support Training tailored to the needs of street photographers with the time kindly donated by tutor Elliot Rogers from White Star Medical.

A Victory for Press Freedom

Investigative photojournalist Marc Vallée and videographer Jason Parkinson have received an apology and damages from the Metropolitan Police after being forcibly prevented from working by officers at a political protest outside the Greek Embassy in 2008.

Ethics Working Group gets started

A working group of branch members has met to discuss a set of ethics guidelines for the branch to adopt and to pass on to the NUJ Ethics Council.

Looking after members Welfare

Saturday 19 June 2010 was the National Union of Journalists (NUJ) welfare training day hosted by the NUJ Extra charity. Chair Chris Wheal and administrator Lena Calvert led the afternoon’s discussion on what welfare officers can and should be doing to assist branch members.

DACS Payback Time

Payback from the DACS royalties scheme opened last month and members have until 17th September to make their claim.

Minutes

Branch members who are registered on the site can login and view the draft minutes of meetings:

July Branch Committee Minutes (Draft)

This Branch condemns the recent attempts by Bauer Media’s music division to impose an all rights grab contract on its freelance contributors and supports the action by freelancers to force Bauer Media to reconsider.

The Branch calls for all NUJ members to support the Bauer Media music freelance action and not accept commissions or contribute content under this rights grabbing contract until a negotiated settlement is agreed upon between Bauer Media music and its freelance contributors.

The London Photographer’s Branch is committed to the defence of copyright and will fight any attempt to undermine it.

Members who contribute to Bauer can join the London Freelance Branch Shady Bauer mailing list for the latest information on the negotiations. There is also a meeting on 5th May at 6.30pm at Headland House for freelance Bauer contributors organised by NUJ Freelance Organiser John Toner.

It is thought that the new rights grabbing contract will be rolled out across the rest of Bauer’s titles shortly, a full list of Bauer’s UK publications can be found on BauerMedia.co.uk and Bauer.co.uk

Download MP3

Congratulations to all those photographers who have campaigned and lobbied against Clause 43 of the Digital Economy Bill.

We have won!

Thanks to the work of thousands of photographers up and down the country, campaigning and writing letters to MP’s we have defeated the offending Clause that would have had a devastating effect on the livelihoods of freelance photographers.

The London Photographers’ Branch commends those photographers and NUJ members who have stood up and been counted and gives special thanks to those who have consistently worked towards this victory.

Jess Hurd
Chair, London Photographers’ Branch
On behalf of the LPB Committee

The widespread misuse of press photographers’ images – especially on the internet — is a matter of growing concern for the European Federation of Journalists (EFJ). The misuse of images, such as copying, selling or manipulating photographs without permission and without crediting the author has led to various ethical problems and threatened press photographers’ moral rights.

The EFJ urges member unions:

1. To stress the values of press photographers’ moral rights and
2. To provide their members with advice on how to protect these.

Moral Rights & Press Photographers

Like all authors, press photographers should enjoy the full rights to their work, including both economic and moral rights. While economic rights can be assigned through fair contractual agreement, moral rights of press photographers are unwaivable and must remain with the author.

The key moral rights are:

1. The right to be credited as the author
2. The right to protect the integrity of a work and oppose any distortion.

International & National Law

Moral rights are defined in international treaties and national laws. Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works stipulates that:

…the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.

Moral rights are also guaranteed in national laws. The national legal frameworks in most European countries recognise press photographers’ unwaivable moral rights – as these are rights of every individual citizen. The exceptions are the UK, Ireland and the Netherlands where moral rights can be waived – and publishers therefore frequently demand this.

Protecting Moral Rights Through Collective Bargaining

Although international and national laws recognise press photographers’ moral rights, it is not always easy to enforce these rights. Employers or commissioning parties often impose unfair contracts on press photographers asking them to transfer whatever rights the country’s law permit (and sometimes rights that cannot legally be transferred). Protecting these rights through the courts is an expensive and slow process with no certainty of a favourable outcome.

New technologies also make it much easier to alter photographs. There is a danger that this may be done in a way that damages the photographer’s reputation. It is therefore a good idea to insert a provision restating moral right protection in collective agreements.

How Can Unions Help Press Photographers Protect their Moral Rights?

1. Advise members against signing unfair contracts containing provisions that weaken (or in the UK and Ireland remove) their moral rights.
2. Help photographers organise to collectively reject such contracts from particular publishers or broadcasters.
3. Negotiate collective agreements containing specific authors’ rights provisions to protect their moral rights: see the sample of the EFJ’s Authors’ Rights Provision (Word .doc) for Collective Agreement for Journalists/Press Photographers.
4. Adopt guidelines with media companies on processing of images that ensure that metadata are preserved throughout the editorial and archiving process.
5. Adopt guidelines with media companies that forbid manipulation of images, except for normal colour correction etc and specify clear labeling of illustrations based on altered photographs (e.g. “Illustration by Eva Mueller based on a photograph by Eve Miller”).

Protecting Press Photographers’ Moral Rights Online

The growing online market poses challenges to the protection of moral rights on the Internet. The web has made unprotected images susceptible to theft and misuse. Images can easily be downloaded, used and manipulated by both private and commercial users anonymously and without either seeking a licence or offering payment.

A study in 2007 (PDF) suggested that 1 in 17 professional photographs online was either stolen or misused (e.g. copying or manipulating photographs without permission or compensation, or giving credit to the author). In Europe, the situation is worse: in Germany with nearly a quarter (23%) of professional photographs were stolen or misused, and in the UK 1 in 8 (13%).

Other ways press photographers can protect their moral rights online

There is no known technology for preventing abuse of images once they are posted online. But various technologies can help find improper uses so that photographers – and their unions – can take actions.

1. Watermarking is digitally embedding a signature or identification that can prove the ownership of the image once it is stolen or misused. The watermark can be invisible: a photographer uses a computer program to embed an identifying code which is buried in the image data itself.
   However, photographers are divided on this technology. Heavy processing of the image, or making a small thumbnail, may make the code unreadable. Watermarking may never be more than an aid to identifying some images.
2. Metadata is a developing and increasingly popular technology that can store electronic right-management information (e.g. essential copyright, contact and licensing related information) to identify and track digital images. The information can be read by computers – or, in future, by specialised search engines that track uses of pictures.
   The removal or alteration of any electronic right-manangement information of the copyrighted material would normally infringe the copyright of rightholders. This provision is protected by the European legislation (Article 7, PDF) applicable in principle to all EU Member States.
3. Entering data via your camera – some cameras allow users to enter basic metadata such as name and contact details into the camera, so that this information will be stored inside every image file alongside    the    image    data.    The    problem    is    to    ensure    that    this information stays in the image file when the picture is processed, archived and posted online. Codes of practice collectively agreed with publishers are one way to define good practice on picture desks.
4. Image search engines – commercial services are currently in development that will allow photographers to upload a small copy of an image and search the web for copies of it. There is a few existing image search portals (the EFJ has a list of these portals available on request) that allow photograhers to detect and monitor the use of their copyrighted images on the internet.

Projects that aim to develop standards that define how metadata is presented include the PLUS Coalition and the more publisher-oriented IPTC (International Press Telecommunications Council).

The EFJ is working toward getting metadata legally protected in every European country, as EU law says it should be.

Should you have further enquiries, please feel free to contact: Yuk Lan Wong – Yuklan.wong@ifj.org or Pamela Morinière – Pamela.morniere@ifj.org

Best regards, IFJ/EFJ Authors’ Rights Expert Group

You can also download this document as a PDF.