It’s a good idea to learn from the mistakes of others. In 2008, when there was an attempt to pass orphan works legislation in the US, a wide range of photographer’s organisations opposed it. One, however, broke ranks. The American Society of Media Photographers, accepting the apparent inevitability of the proposed legislation, switched sides and supported the Shawn Bentley bill. The ASMP took a lot of flak for this decision, viewed by many photographers as a betrayal of basic principles.
In the end the bill never made law, since it ran out of time in Congress, and as a result the ASMP ended up with a lot of egg on face on two counts. Their judgment was now in question, having incorrectly wagered that the bill would pass, and many photographers now also viewed them as an unreliable partner when the going got tough.
Cut to 2010, and the UK is on the verge of introducing its own orphan works legislation, included in Clause 43 [formerly Clause 42] of the forthcoming Digital Economy Bill. Not only is the UK version far more wide-ranging than the US attempt, but the UK government is attempting to enact it through an unusual and highly controversial procedure known as the wash-up, where an outgoing government forces through bills before a general election. In doing so most, if not all, of the parliamentary debate that would accompany the bill’s passage will be avoided.
In early March Getty Images, alarmed at the implications of Clause 43 of the DEB, engaged high-end London PR firm Insight Public Affairs to co-ordinate a campaign against the clause. The idea was to run a campaign to both raise public awareness of the issues and lobby MPs, a task in which Insight PA are highly experienced. In an attempt to build as broad a front as possible Getty and Insight PA circulated a letter to various UK photographers’ representatives, including the National Union of Journalists [NUJ], the Association of Photographers [AOP], the British Association of Picture Libraries and Agents [BAPLA], Editorial Photographers UK [EPUK] and Pro-Imaging.
In the words of the Insight PA account director advising Getty: “the purpose of the letter is to send to MPs and peers to demonstrate industry-wide concerns for certain aspects of Clause 42. We will be handing it to MPs as and when we meet them over the next three weeks, and we will be making sure all members of the yet-to-be appointed standing committee for the Bill receive a copy. As you can imagine because we are seeking wide-industry support we can’t change the text of the letter so the version below will be the final one.”
Given the importance of the issues, and what happened next, it’s worth publishing that letter in full:
“DIGITAL ECONOMY BILL – SHORTCOMINGS OF CLAUSE 42
We the undersigned are writing to you to express our deep concerns surrounding Clause 42 in the current version of the Digital Economy Bill. As you will know, the House of Lords has spent time debating the Bill, including issues around Clause 42 – that deals with ‘orphan works’ and collective licensing. However, as it makes its way into the Commons we remain anxious, for the reasons outlined below, about the potentially negative impact on the UK photography industry that could result if the Bill receives Royal Assent.
What’s more, owing to the limited parliamentary time remaining before a general election is called, it will be nearly impossible for Members of Parliament to fully scrutinise and debate a piece of legislation that we believe is deeply flawed. It is our concern that when the general election is called, Clause 42 could pass into law not having undergone full and rigorous parliamentary analysis. This risks leaving photographers exposed to a new, and as-yet unspecified, system of copyright licensing whose creation will be in the hands of the Secretary of State for Business Innovation and Skills, without any requirement for parliamentary oversight or vote.
We fully acknowledge that making accessible those ‘orphan works’ for cultural institutions like the British Library has the potential for significant positive impact both in the UK and globally, but it remains unsatisfactory that the unattributed creators of ‘orphan’ photographic work could suffer.
With this in mind, the UK’s photographic industry has a number of key concerns around the proposals relating to the exploitation of orphan works. These are:
• There is no proper definition of orphan works;
• The proposed scheme for managing orphan works is not limited to orphan works;
• There is no distinction between “cultural” and “commercial” exploitation of works;
• There are inadequate safeguards to protect copyright owners’ works against misuse;
• That no consideration has been given to the necessary practicalities to underpin the legislation.
Damage to the UK Creative Economy
While the UK Photographic Industry fully supports many aspects of the Digital Economy Bill, in particular, the measures to stop piracy in the digital age, the legislation will have a number of unintended consequences including:
• Damaging the UK Photographic Industry’s ability to compete at a global level (as it could make protecting ones copyright in the UK a more difficult and protracted process compared to in other jurisdictions);
• A reduction in value of the UK creative economy (as it could lead to photographers and photo agencies choosing alternative countries in which to base their operations);
• A net cost to the UK economy in terms of a reduction in value of key assets; and
• An increase in bureaucracy adding to the burden on UK businesses.
Clause 42 of the Digital Economy Bill amends the Copyright, Design and Patent Act 1988 by allowing anyone to exploit “orphan works” (an orphan work being a work of unknown authorship); and providing for the establishment of a collecting society to administer the use of orphan works.
These proposals are of particular concern to a variety of bodies engaged in using and protecting copyright protected work. The current proposals will not work because:
• There is no central searchable archive to assess whether or not a work is “orphaned”;
• Given that there is no central searchable archive, no one will know if a “diligent” search has been carried out to determine whether a work is orphaned;
• The unintended consequence of the Bill is to write a “copyist’s charter” which allows people to copy first and pay later (or not at all);
• They undermine a fundamental Human Right, namely, the property right enshrined in Article 1 of the First protocol of the European Convention on Human Rights; and
• It has been acknowledged that if an appropriate balance cannot be struck between the competing interests, then the Secretary of State is not under an obligation to do anything which begs the question why are proposals being implemented in this way.
Our final concern is that the Bill gives the Secretary of State sweeping powers to amend the Copyright, Design and Patent Act 1988 without debate on the floor of the House.
We trust that these concerns will be represented throughout the remaining passage of the Bill. We would be delighted to make additional representations either in writing or in person to explore options to ensure that a compromise option can be found to the benefit of all the individuals and organisations concerned with the consequences of enacting Clause 42 of the Digital Economy Bill.”
That’s a pretty good letter: it comprehensively lays out the flaws in a complex piece of legislation that’s largely been ignored. In fact, it’s a very good letter indeed. There’s just one thing wrong with it: the letter was never sent.
Although Getty described the letter above as the final version, and stressed that it would not be subject to change, BAPLA immediately suggested that it could be “improved”, and offered to do so. The task was delegated to BAPLA CEO Simon Cliffe, who was charged with redrafting it in consultation with the other photographers’ representatives. This does not appear to have been a happy experience. Cliffe has described the process as “picking teeth”, while the other contributors accuse him of failing to answer questions and points raised, and ignoring alternative drafts to his own. Nonetheless by mid-March Cliffe felt able to declare “with Draft Five we have a draft that is final, finished and complete, with contributions from all”.
In fact some contributors were distinctly unhappy with Draft Five. EPUK in particular felt that BAPLA had seriously weakened Getty’s supposedly non-negotiable letter. However, aware that the DEB was heading to parliament within weeks, and eager to maintain unity, the various contributors agreed to Cliffe’s Draft Five.
At which point Cliffe disappeared, only to re-emerge a week later with a double whammy: the letter had been rewritten yet again – this time without consultation – and was to be published without further delay. Other contributors were enraged by Cliffe’s new final version, described as “nauseating and obsequious”. However before they could respond BAPLA published the letter in a press release, describing it as a joint statement from the UK photography industry.
It’s not yet clear why BAPLA felt the need to so comprehensively neuter Getty’s original proposal. It may have been simple fear: the UK’s Intellectual Property Office are known to have threatened to make things difficult for organisations that try to oppose the DEB. And some have speculated that BAPLA may see a role for themselves as one of the “collecting societies” that the DEB proposes under its Extended Collective Licensing scheme.
Whatever the reason for BAPLA’s behaviour, UK photographers aware of it are as furious at BAPLA as their US colleagues were at the ASMP’s orphan works capitulation. “We thought Getty were the US cavalry riding to the rescue,” comments one, “but they turned into BAPLA’s My Little Pony. The IPO will be pissing themselves laughing to have received an ultimatum that says ‘we aren’t happy but look forward to collaborating fully with your proposals for raping us’”.