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

IPO Propaganda, Part 3

Stop43 are coming to suspect that Richard Hooper was never expected to evolve Hargreaves’ Digital Copyright Exchange recommendation into a ‘Copyright Hub’ linking the rapidly proliferating ‘Digital Copyright Exchanges’, or find it to be as eminently feasible as he has. This seems to have caused a bit of a problem for the IPO and its associated copyright exceptions, OW and ECL enthusiasts, because Hooper has described a viable alternative to their damaging schemes.

Why do we think this? Well, not only have our last two comments to the IPO’s blog (here and here) not been posted to their blog, no sooner had we posted them here, the IPO in disguise had a go at them on the widely-read IPKat Blog.

IPKat has had the best part of a day now to publish our reply to that piece but has not done so, and yet has published a comment submitted after ours was. We hope we’re not seeing a pattern emerging of the IPO making disingenuous assertions and gagging our rebuttals to them.

Paid IPO consultant Dr. Nicola Searle’s piece contains a number of inaccuracies and misrepresentations. She also didn’t disclose her interest, which is poor journalistic practice. She writes:

‘One revenue source for photographers is the licensing of existing work. Their concern is that the Hargreave's (sic.) proposed Digital Copyright Exchange (DCE) would create a large, cheap library of orphan works that would unfairly compete with works with identified rights holders.’

Stop43 are strong advocates of the DCE, which Hargreaves seems largely to have cherry-picked from our ‘National Cultural Archive’ proposal to him. We support strongly Richard Hooper’s Copyright Hub concept and are engaged very actively in initiatives to bring it to fruition. We advocate the Cultural Use of orphan works but oppose the commercial use of orphan photographs, especially digital orphans, as not only would it breach our rights under the Berne Convention Article 9 (1), it almost certainly would compete unfairly with works with identified rights holders, but this is a secondary reason. These are our primary reasons for our opposition to the commercial use of orphan photographs.

We oppose Extended Collective Licensing (ECL), the primary function of Hargreaves’ DCE, which would enable collecting societies to compete at rock-bottom prices with rights owners in primary licensing markets. We’ll comment in more detail when the IPO publishes its promised blog piece on this subject.

‘The argument in favour of changes to orphan works legislation…’

There isn’t any orphan works legislation in the UK. It is illegal to use a work without authorisation beyond those uses provided for in the Fair Dealing exceptions of the Copyright, Designs and Patents Act 1988.

‘To lobby against proposed changes to orphan works legislation, a group of photographers have organised a campaign called Stop 43 (named after Clause 43 of the Digital Economy Act which was removed.)’

This sentence makes it sound as if we were formed recently, just to oppose the Enterprise and Regulatory Reform Bill exceptions, orphan works and ECL clauses 57 and 59. In fact Stop43 was founded in February 2010 to oppose DEB clause 43 and the public campaign against it we led was probably the primary cause of its removal from the Bill.

‘A source close to the debate states

The Government's orphan works licensing scheme is good news for photographers whose work is being used without their permission and knowledge. They will not only have a better chance to find out about such uses and end them, but also be paid for the time they're used without having to fight for it in court.’

Ah, our old friend the unattributed source. Given that last year, at an event organised by the Association of Photographers at which he appeared, Mr. Edmund Quilty, Copyright and Enforcement Officer at the IPO said almost exactly the same thing, might he be the ‘source close to the debate’ or perhaps this source’s immediate superior? If we are correct, Mr. Quilty can hardly be described as a disinterested ‘source close to the debate’ because he is fully involved in the debate as the chief instigator and driver of the IPO’s policy.

In reply to the ’source close to the debate’’s assertion, the combination of Richard Hooper’s Copyright Hub, Fair Contract law for IP and the Cultural Use of orphan works will also be good news for photographers, having exactly the same beneficial effects for them, whilst additionally making it easier and more efficient for them to trade, reducing infringements of their copyrights, and creating economic growth overall. The major consequences for photographers of Mr. Quilty’s measures will be loss of actual and potential income, increased legal uncertainty, increased risk (and therefore reduced attractiveness to investors), and overall the probable contraction of the professional creative sector in the UK - one of the few in which we lead the world.

Here is our comment to Dr. Searle’s post, in full:

Nicola Searle is a paid consultant to the IPO. Not to have disclosed this in her article is poor journalistic practice.

Might we know the identity of the 'source close to the debate', please?

With her 'Tyranny' conflict she creates a false dichotomy. There is no need for the minority to lose for the greater good of the majority. Stop43 have proposed an orphan works solution which we believe does not breach international copyright and human rights law, will not damage the interests of copyright owners, and will actually stimulate genuine economic growth.

We believe the Copyright Hub (which Richard Hooper's DCE Feasibility Study has found to be eminently feasible), Fair Contract law for IP (a subject entirely ignored by Hargreaves and the Copyright Consultation, but one Stop43 have pressed for since our DEB Clause 43 victory) and Cultural Use of orphan works comprise an alternative solution to the genuine problems the IPO's orphan works, extended collective licensing and copyright exceptions measures are intended to solve, but without their damaging effects on human rights and authors.

If 'we follow utilitarianism and seek to maximise overall utility' we will find that a solution which solves access and use problems without damaging copyright owners and contracting the professional creative sector delivers greater overall utility than the draft measures the IPO has inserted into the Enterprise and Regulatory Reform Bill.

These proposals are freely viewable on the Stop43 website. They were also included in our submissions to Hargreaves and the Copyright Consultation.