Orphan work courtesy Professor Ian Hargreaves
“Who has won the copyright wars?” asked Rory Cellan-Jones last week on the eve of publication of the Hargreaves Intellectual Property Review. Judging by the comments on Cellan-Jones’ blog and elsewhere the answer is: “nobody”.

Only a rather hysterical John Naughton in the Observer and freetard shill John Bradwell in the New Scientist gushed with unreserved enthusiasm at the review’s conclusions. Some indication of the depth of Bradwell’s grasp of IP matters is his assertion that within five minutes of the 130 page report being published “Hargreaves had pulled off the impossible: pleasing everyone.”

In fact Hargreaves ended up pleasing not very many people at all. Prime Minister David Cameron, announcing the review last autumn, made plain that he expected it to recommend US-style fair use legislation, but as predicted Hargreaves failed to deliver. Likewise Google, who Cameron’s government had shacked up with, will have been disappointed with the rejection of fair use.

But the most displeased, inevitably, were photographers. As predicted here, and described by the Register as “throwing photographers under a bus”, Hargreaves proposed legislation for the commercial use of so-called orphan works, those whose owners cannot be immediately identified.

If this all sounds familiar that’s because it is. UK OW legislation was first proposed in the Gowers Report of 2005 and subsequently dropped. Then the Labour 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. Apparently the motto of the UK OW lobby is: “if at first you don’t succeed, try, try to steal again”.

The proposal Hargreaves has come up with is the half-bright cousin of US copyright law. In the US there is in reality a two tier copyright system: while all images are copyrighted at the click of the shutter, only those that are subsequently registered with the US Copyright Office receive effective protection through the provision of heavy statutory damages for infringement. Anyone attempting to pursue infringement of an unregistered image can generally only rely on the generosity of the infringer to offer compensation: US lawyers invariably require an image to be registered before they consider handling a case.

Likewise, Hargreaves envisages a two-tier UK system: a Digital Copyright Exchange in which copyright owners could register their images, with all remaining unregistered images regarded as orphans. The difference from the US system would be that the registered images would receive little or no more protection than they do now – there is no suggestion of US-style punitive damages for infringement of registered images; and orphaned images – inevitably the vast majority – could be licensed for a “nominal sum”, probably £1.

The flaw at the heart of this is so glaringly obvious it’s hard to believe that Hargreaves was unable to see it; nonetheless it’s worth spelling out. Many UK professional photographers will register with the DCE in a desperate attempt to protect their copyright; most UK amateurs won’t and will get comprehensively ripped off. But by far the biggest losers will be non-UK photographers, both professional and amateur. The chances of foreign photographers – most of whom will not even be aware of the DCE – registering their work will be essentially zero. Result: the work of all non-UK photographers is automatically orphaned within the UK. It’s not hard to predict the reaction of foreign IP owners to such behaviour.

Perhaps all this should come as no surprise, for Hargreaves’ ignorance of international law in general, and the Berne Copyright  Convention in particular, was cruelly exposed when he tried to defend his report in the comments section of his blog[Irony alert!  Hargreaves’ blog is headed by – you guessed – a genuine metadata-free orphan image of the Professor.] Challenged that his proposals fall foul of Berne, to which the UK is a signatory, Hargreaves fudged and claimed this was not the case. One commentator, Simon Crofts, promptly demolished that defence by quoting the relevant Berne legislation. But then when it comes to discussing photography and the law Crofts has a considerable advantage over Hargreaves, who is neither a photographer nor a lawyer: Crofts is both. Helpfully, Crofts has expanded his comments into a blog piece that will probably come to be regarded as the definitive analysis of Hargreaves’ OW botch.

Ironically, for someone charged with presenting proposals to make digital Britain fit for a wired-up world, Hargreaves has managed to do the opposite with his OW scheme. As it stands the proposal to orphan any image not on the register will turn the UK into an island of state-sponsored copyright theft, and will inevitably invite legal challenges from foreign photographers, most especially those in the US.

It’s far too early to say whether Hargreaves’ scheme will ever get into law, but the chances, fortunately, are not good. “Doomed to fail”, was the verdict of Barlow Robbins technology and media lawyer Brett Farrell in the Daily Telegraph:

“Intellectual property laws are effectively underpinned throughout the world by international treaty arrangements. Well intentioned as it may be, England wanting to set up its own one-stop-shop for collective licensing is simply doomed to fail without the global community buying into it. One only needs to look to the European Union’s attempt to have the music collecting societies set up European-wide licensing and one stop shop licensing bodies. A one-stop-shop for licensing, or digital exchange will not work.”

So we may not yet know who the Hargreaves winners are, but if lawyers like Crofts and Farrell are right it’s clear who the loser is: Hargreaves himself.

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