It has long been the position of the professional photographers’ representative organisations that comprise the British Photographic Council that major improvements in moral rights for photographers are a precondition for any legislation on orphan works. This view was made clearly and consistently to the Gowers review, the Lammy review and to the Intellectual Property Office during the the Digital Economy Bill’s drafting phase.
It therefore came as a shock to find that the first public draft of the DEB contained a clause (then numbered 42) that enabled the commercial use of orphan works and proposed Extended Collective Licensing schemes to manage their licensing and the revenue they generated, without mention of photographers’ moral rights. In reply to an email question from a professional photographer asking why, an IPO staff member stated:
“Ministers are not willing to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to.” - referring to commercial publishers.
And so, instead, in DEB Clause 42 the IPO proposed to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to. Photographers.
That first draft of DEB Clause 42 made it clear that for whatever reason, the IPO had discounted the BPC’s precondition. Individual photographers, realising that their representative organisations’ attempts to protect their rights had been ineffectual, decided to take direct action.
The Digital Economy Bill itself was somewhat controversial, having originated in the House of Lords under the sponsorship of Lord Mandelson. The small group of photographers that became the nucleus of Stop43 established contact with a number of senior politicians and sent briefing papers to them. Liberal Democrat culture spokesman Lord Clement-Jones quoted liberally from our briefing papers in the speech he made in the House of Lords on 8th March 2010 in which he asked for Clause 42 to be withdrawn from the Bill.
Following his speech he wrote to a Stop43 founder member: “In practice I think if you keep up the campaign they will find it very difficult to include commercial photographers in the Orphans works regulations.” Thus encouraged, Stop43 began its public campaign to have the Clause, by then renumbered Clause 43, removed from the Bill.
PARLIAMENTARIANS LISTEN AND ACT
Senior Conservatives came to understand the problems with orphan photographs, not least those of misrepresentation, and decided to robustly oppose Clause 43 in the Bill’s Second Reading and Committee Stage in the House of Commons. The Liberal Democrats, opposed to the lack of opportunity for debate and the haste with which the DEB was being rushed through in the washup before Parliament’s dissolution prior to the General Election, proposed a compromise amendment that would have removed post-1950 photographs from the legislation. Photographers opposed this amendment. The Clause was subsequently removed by the then-Government as a result of Conservative and Liberal Democrat opposition.
During the Second Reading debate, the Conservative Front Bench announced its intention to introduce a proper Intellectual Property Act in the next Parliament. Photographers welcomed this announcement as it provides us with the first real opportunity since 1988 to rectify deficiencies in existing law. As a precursor to that Act, the Coalition Government has set up the present Intellectual Property Review.
Notwithstanding the demise of Clause 43 and the reemergence of attempts to commercialise the use of Orphan Works, photographers acknowledge the fact that digital orphans are a real and growing problem for all sectors that must be dealt with urgently. There is a legacy of Orphan Works which, if not tackled soon, poses a real threat to the preservation of national cultural heritage. Museums, libraries, archives, galleries and educational establishments hold large numbers of artistic works on decaying traditional media, but are prevented from transferring them to digital media by current copyright law. Without urgent action, these items cannot be preserved or used in any way for academic study and will be lost forever.
During the campaign against Clause 43, Stop43 promised Parliamentarians that we would produce New Thinking to replace the iniquities of Clause 43 and enable the cultural use of orphan works.
This is it.
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Why Orphan Works provisions were dropped from the Digital Economy Bill