Victory has a thousand fathers; failure is ever an orphan.

Since the defeat of Clause 43 of the UK’s wretched Digital Economy Bill I’ve discovered friends I never knew I had, as numerous MPs write to assure me they voted against the so-called orphan works clause. Now, the Honourable Members aren’t being strictly honest: the clause was scheduled to be withdrawn from the bill, and logically nobody can vote on something that no longer exists. But let’s not be pedantic. These are politicians, we expect them to have a creative relationship with the truth, and it’s reassuring to know they’re thinking of me during an election period.

Others have been indulging in lies of omission, acknowledging the clause’s defeat, but failing to mention how such a thing could have happened: its passage after all was supposed to be a done deal. In this version of history the clause apparently fell due to a force of nature or an act of god: there’s certainly no mention how it actually happened.

But the biggest lie, inevitably, has come from the British Association of Picture Libraries and Agencies. Inevitably because aside from Mandelson and his cronies in the Intellectual Property Office, BAPLA were by far the biggest losers when Clause 43 went up in smoke.

Now, in a sly piece of historical revisionism, BAPLA are attempting to give the impression that last week’s events were all a result of their uniting the UK photo industry, stressing their interventions to change elements of the doomed clause. On seeing BAPLA’s statement one observer – not party to all the ins and outs of the saga – commented: “Sounds like BAPLA behaved very sensibly and generally saved the day. By themselves. Well done them.”

But none of that is true. Clause 43 was dropped because thousands of photographers, professional and amateur, supported the Stop 43 campaign by writing to MPs, blogging, tweeting and distributing campaign virals around the web. Essentially it was a popular revolt that bypassed the organisations, primarily BAPLA, that claimed to represent photographers’ interests, but were in reality planning to betray those interests.

Fortunately parliamentary records show very clearly who really took which side. Four professional photo sources were quoted in the DEB debate: veteran photojournalist Tom Stoddart; the Stop 43 campaign; this blog; and BAPLA’s letter stating the position of the UK photo industry in relation to Clause 43. The first three were quoted in opposition to the clause; the fourth, BAPLA, in support:

Austin Mitchell, Labour MP for Great Grimsby:
“As Tom Stoddart, a well respected and well known photographer, has said in submissions to us, the metadata that are attached to the photograph can be simply cut off, junked and lost, so there is no attribution to an author. There is no definition of the search that the photograph user has to make. It could be totally perfunctory, and used in undesirable situations and without payment to the author of the photography.”

Peter Luff, Conservative MP for Mid Worcestershire:
“As the campaign group to stop Clause 43 points out, the clause says that
‘if someone finds your photograph, wants to use it and decides that they can’t trace you, they can do whatever they like with it after paying an arbitrary fee to a UK Government-appointed licensing body. You’ll never know unless you happen to find it being used in this way’.”

Peter Luff, Conservative MP for Mid Worcestershire:
“Ironically, there has been a spectacular demonstration of that only in the last few days. I am indebted to Jeremy Nicholl, whose blog I shall quote from…”

Stephen Timms, MP for East Ham, and Financial Secretary to the Treasury:
“I welcome the statement about Clause 43 made last week by a number of photography organisations welcoming changes made to the Bill and looking forward to working with Government on the regulations to be made under Clause 43.”

Not surprisingly some of the signatories to the BAPLA letter were alarmed at how their position had been misrepresented by Timms’ use of the letter. So alarmed that one, the Association of Photographers, immediately mailed MPs that, contrary to the impression given by Timms’ presentation in Parliament, the AOP remained opposed to the clause:

“The AOP’s view on Clause 43 has always been first and foremost that it should be totally removed from the Digital Economy Bill. In spite of amendments made to date, Clause 43 as currently laid down, remains unacceptable and totally unworkable in practical terms. The fact remains that the AOP is opposed to Clause 43 as it stands.”

But then BAPLA weren’t really interested in stopping Clause 43. They had already decided it would pass, and instead had their eye on the prize of becoming a licensing body under the Extended Collective Licensing scheme included in the clause. For BAPLA Clause 43 wasn’t so much a threat as an opportunity.

The proof? Two weeks before the debate a prominent Conservative MP met various photographers’ organisations, telling them the Tories were prepared to vote against Clause 43. When he asked those present which of them were opposed to the clause every hand went up: except BAPLA’s. And when BAPLA CEO Simon Cliffe sent his infamous letter out, guess which party wasn’t on his mailing list? That’s right, the Conservatives. Since they were committed to opposing the clause they were of no use to BAPLA: it was Labour and the Liberal Democrats they needed to get the clause passed. The truth is BAPLA weren’t just neutral over Clause 43: they did everything in their power to see it passed.

The saddest thing is that it didn’t have to be this way: BAPLA could have been winners rather than losers. All they needed to do was sign the original Getty letter opposing the clause and they would indeed have united the UK photo industry behind them, and could have claimed responsibility for what The Register described as “a spectacular victory”.

Instead BAPLA have been reduced to damage limitation, trying to salvage their reputation by rewriting history. Unfortunately for them that won’t work because there is a definitive, indisputable record of parliamentary debates published each day; it’s called Hansard. And there in Hansard, Volume 508, No 67, Column 924, is the permanent and irrefutable record of BAPLA’ s perfidy: digital minister Stephen Timms reading from the BAPLA script and quoting their letter in support of Clause 43.

And no amount of BAPLA spin can ever change that.

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8 Responses to “BAPLA’s Big Fat Lie”

  1. Stewart Weir Stewart Weir says:

    Excellent summary and excellent coverage of the whole episode .. Keep your writing head on though.. The war isn’t over!

  2. Neill Watson Neill Watson says:

    Many thanks for the article Jeremy. Lets hope this one is as widely read by the many people who actually still believed that BAPLA meant well.

  3. Michael Wilikinson Michael Wilikinson says:

    Well presented information,thank you.

  4. Don Schaefer Don Schaefer says:

    Thanks much for the detailed report, Jeremy. This will be required reading for all those in the U.S. who opposed passage of the Orphan Works 2008 bill. Bravo!

  5. Steve Lake Steve Lake says:

    I’ve been curious as to Bapla’s motivation throughout this. Is your comment…

    “But then BAPLA weren’t really interested in stopping Clause 43. They had already decided it would pass, and instead had their eye on the prize of becoming a licensing body under the Extended Collective Licensing scheme included in the clause. For BAPLA Clause 43 wasn’t so much a threat as an opportunity.”

    ….speculation or based on something more concrete?

    Not looking to condemn or support either way, Just curious.

  6. […] argument to bear, the issue was discussed in a way that has perhaps never been done before. BAPLA’s appalling attitude, the vested interests of the large companies and groups pushing forward the bill were all […]

  7. […] government tried to slip legislation through in last year’s Digital Economy Act, only to be humiliatingly rebuffed after a series of embarrassing blunders. Now, zombie-like, Hargreaves resuscitates the theme. […]

  8. […] argument to bear, the issue was discussed in a way that has perhaps never been done before. BAPLA’s appalling attitude, the vested interests of the large companies and groups pushing forward the bill were all […]

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