When the UK Labour government attempted to introduce Orphan Works legislation as part of the Digital Economy Bill in April the result was an embarrassing fiasco. A combination of hectic campaigning by photographers and a spectacular copyright blunder by the government ended in what The Register described as a famous victory for photographers when Clause 43 of the bill was thrown out.
Of course it was always obvious that the defeat of C43 would be a temporary reprieve for photographers. Seven months is a very long time in politics and there are too many commercial interests involved for Orphan Works to disappear so easily; so when Prime Minister David Cameron announced the coalition government’s intellectual property review promising “greater use of copyright material without the owner’s permission” alarm bells began to ring. And proof that it was not a false alarm soon arrived.
On Friday November 12th members of the British Photographic Council were surprised to receive a fax from the British Copyright Council: a draft of new BCC proposals for Orphan Works legislation. The BCC didn’t say why it had sent the draft to the BPC, but given the latter were due to meet on the following Monday, the hope seemed to be that they would rubber-stamp the BCC proposals. Given that some members of the BPC had fought hard against C43, while others – notably the British Association of Picture Libraries and Agents – had endorsed the clause, BCC hopes seemed overly optimistic: the stage appeared set for a stormy BPC meeting.
But there were further surprises in store. The meeting had barely begun when one of the members received a phone call: the BCC had decided not to include photography in their Orphan Works proposals after all. Then it was revealed that Professor Adrian Sterling, Vice-Chair of the BCC, was offering to meet photographers’ organisations for “informal discussions” of the proposals. Why? Because although photography was now not included in the BCC proposals there was the possibility of a second set of proposals specifically aimed at photography.
Given the previous wrangling over C43 most of the BPC members were doubtless relieved not to have to vote on the BCC proposals. But any relief was to be short-lived. For the following day, at the National Union of Journalists Freelance Industrial Council, it was announced that Sterling would not after all have time to meet photographers until next year at the earliest.
That leaves photographers in something of a quandary. The deadline for submission to the BCC regarding their draft proposals is November 29th. Having failed to discuss the proposals – believing that photography would be excluded and that Sterling would meet them to discuss any proposals that would include photography – photographers will now almost certainly miss the opportunity to have any input to the proposals. And there is now the threat of a second set of proposals to include photography, which, according to Sterling, would be based on the first set.
So whatever the BCC’s intentions might have been, the effect of their actions has been to create a situation where Orphan Works proposals regarding photography could be made to the government without any input from photographers whatsoever.
Photographers might want to give the BCC the benefit of the doubt in all this. After all the organisation describes itself as “a body representing those who create, hold interests in or manage rights”: that pretty much defines freelance photographers. But during C43 the BCC showed themselves prepared to hand Orphan Works on a plate to the government’s Intellectual Property Office. And if there is any doubt, the opening paragraph of the BCC proposals makes things abundantly clear:
“These criteria have been agreed by right holders such as publishers and collecting societies, as well as by users”.
That’s right: the actual creators, who the BCC claim to represent, don’t get a look-in. The rules have largely been drawn up by distributors and publishers.
One of the great mysteries of the BCC draft is why it exists at all. The final proposals will form part of submissions to the government’s intellectual property review. That was announced on November 4th, but the metadata in the BCC draft shows a creation date of October 31st: so it would be interesting to know just how long the BCC have been working on the draft.
It would also be interesting to know exactly what prompted them to begin their work. Proponents of Orphan Works legislation like to play the culture card: for instance claiming that current copyright laws prevent museums and galleries displaying work of unknown provenance, and that OW legislation would free them from those shackles. But the fight over Clause 43 exposed many of the true movers and shakers behind Orphan Works legislation, all of them organisations with a stake in the commercial exploitation of such work.
Organisations like the BBC; or, for instance, Google. The Cameron intellectual property review is of course the result of Google whispering in No.10’s ear. It’s not, after all, very difficult for the search engine giant and the coalition government to indulge in a little pillow talk: Google Vice-President Rachel Whetstone is married to Cameron’s Director of Strategy Steve Hilton.
After a week of rumor, confusion, and some behind the scenes rancor, it remains unclear who or what has inspired the new proposals. But one thing is clear: Orphan Works are now back on the UK agenda, courtesy of the British Copyright Council.