stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

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Stop43 enjoyed taking the summer off from campaigning and getting back to paying our mortgages and leading our usual lives. Still, nothing lasts for ever and we’re back to Business as Usual.

Last May we were informed by Culture Minister Ed Vaizey’s office that an Intellectual Property Review would be commissioned in the Autumn. We also knew of an impending EU Directive on Orphan Works, so we fully expected the well-funded advocates of commercial orphan works usage and Extended Collective Licensing to maintain their pressure. We haven’t been disappointed.

The EU Directive is due Any Day Now, and appears to have precipitated a rush by copyright interests to get their ducks in a line. First off the blocks was the British Copyright Council’s apparent attempt to gull a meeting of the British Photographic Council into rubber-stamping its draft proposal on orphan works, which in a reprise of Groundhog Day reads like Son Of Clause 43. The Russian Photos Blog details the whole convoluted story, which continues at the BJP.

That leads us onto the next interesting development. Speaking to the BJP, John Toner, Freelance Organiser for the National Union of Journalists and a representative of the British Photographic Council, says that within the BPC “...there is no enthusiasm for the BCC’s proposal as it stands, and we are seeking to add some conditions to it.” Toner adds:

"The most important of these is that we wish to see major improvements in moral rights as a precondition for any legislation on orphan works. Moral rights legislation in the UK is notoriously weak, and we consider it an absurdity that orphan works legislation is being proposed without such an improvement. Unless authors’ rights to accreditation are strengthened the number of orphan works will continue to grow."

Note the use of the word “precondition”, which also appears to accord with official NUJ policy.

Thinking of matters international we’ve always wondered about this upcoming EU Directive - the EU Big Stick. It is always presented as a threat. In many ways the EU has much better copyright law, which is far more protective of authors' rights, than the UK. It also appears from everything we have read that the EU conception of Orphan Rights with or without Extended Collective Licensing is far more limited to genuine cultural purpose than the free-for-all the BCC appears to wish to impose.

It is entirely possible that being panicked into accepting whatever the IPO have dreamed up in the past few months could well be a lot worse for creators than what comes down the pipe from Europe. Conversely, the sudden pressure to Do Something could indicate that what the EU proposes would be worse for publishers and others seeking to bypass our copyright. We don’t know, and those that do aren’t telling.

Then there is the joint BBC/JISC/National Archives/British Library/BFI "Digital Public Space" initiative, which first surfaced on November 1st 2010 in a Guardian interview with Tony Ageh, Controller of Development for the BBC Archive project. As described by JISC it is intended to

" with the largest barrier to mass digitisation, that of copyright. The DPS would be constructed as a secure, trusted space for high-quality content. Copyright material would be made freely available to the public, but access would be via authentication and delivered via universities, libraries, schools etc. and, if federated infrastructure develops suitably, to individuals. At the same time, the DPS would offer costed access to commercial users wishing to exploit the goldmine of content. The costs would be used to pay back the rights holders and sustain the DPS."

“Goldmine of content.” Mmm. Whose gold, and who is mining it?

Sound familiar? It does to us - it sounds remarkably similar to Stop43's National Cultural Archive proposal, first made public on the 18th May 2010. At first glance it looks like a great idea - until one realises that no explicit mention is made of orphan works, that it essentially amounts to a joint shopfront for the existing archives of large cultural institutions, and that it does nothing to stimulate one-to-one licensing between creators, rights holders and prospective users.

In contrast, the NCA would be open to anyone to join provided they met the criteria, and as well as fulfilling the Digital Public Space's cultural rôle would develop into a new low-level digital IP marketplace. To us the DPS looks to be a bit of a Trojan - a worthy-looking project created primarily to justify new Clause 43-like orphan works legislation. It would clearly require some form of Extended Collective Licensing in order to work.

Moving swiftly onwards, an article has appeared on the Guardian Website written by one Stephen Edwards, who turns out to be a practicing copyright lawyer with a stable of media company clients and who previously was Head of Copyright at the BBC, although in an unseemly breach of journalistic ethics he managed to omit reference to his interests in the article.

In his article he asserts that the public is now missing out on being able to see interminable repeats of old telly because the photographers threw out Clause 43, a problem that a simple little Bill restoring orphan works and extended collective licensing would soon sort out.

The Guardian article sparked off a lively discussion in its Comments thread in which several posters in favour of the article’s proposition were stoutly rebutted by clued-up photographers.

And therein lies the change. Photographers have woken up and are no longer leaving it to those who insist they know best how to sort out copyright in our interests. We’re organised and alert, and ready to engage with proponents of commercial orphan works usage wherever and whenever they pop up. We’ve also devised our own proposal, currently being polished for submission to Professor Ian Hargreaves’ Intellectual Property Review.

Stop43 have been busy making new friends. We have been approached by members of the Cultural Heritage Sector who not only think our proposal a Jolly Good Idea that pretty well satisfies their practical requirements, but are also keen to help us. They’ve joined in.

And so, arm in arm, this week we followed the Yellow Brick Road to the British Library to meet their Head of Intellectual Property only to discover that photographers’ lack of automatic, inalienable moral rights is a big problem for them, too, and that they would like UK law changed to enshrine them. It seems that photographers and the cultural sector are not so far apart after all. We parted agreeing to continue our discussion as soon as possible.

There have been other interesting shenanigans:

  • A leading copyright expert and ECL enthusiast at the NUJ has been patronisingly dismissive of Stop43’s successful campaign;
  • our New Thinking proposal has been so misrepresented as to be almost inverted by JISC - it’s all in our new FAQ;
  • the French have set about introducing orphan works legislation pertaining specifically to images;
  • and then there’s Google;
  • and then there’s Google;
  • and then there’s Google, again. This makes fascinating reading. The pillow talk in the Hilton/Whetstone household must indeed be quite something. What is Google if not The Vacuum Cleaner At The End Of The Universe?
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