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.

IPO Propaganda, Continued

The IPO have published another blog entitled ‘UK copyright and orphan works: the facts’. Both this and their previous piece, ‘UK copyright: Accessing Orphan Works’ have attracted a lot of comment, all of it critical, but sadly the most recent comments submitted to them by Stop43 have not been posted. We’re republishing them here.

Update 10/08/2012: The IPO have now published this comment but are yet to publish the second one.
In a comment to the first blog piece we wrote:

‘There are many interesting orphan works, particularly in cultural institutions that at present cannot be displayed to the public or reproduced because the copyright owner cannot be found to ask their permission.’

I really must come back again on this point, because it implies that the librarians, archivists and curators concerned actually know which of their holdings are orphan and which are not, which in turn would imply that they had already made diligent searches and established what is parented, orphaned, or in the public domain.

If they had actually done this their lobbying papers and submissions to you would be full of accurate figures, not estimates that '30% - 70% of our works are orphan', and they would not be lobbying for ECL as a way of escaping the diligent search requirement because it would no longer be relevant to them.

Clearly they mostly haven't a clue, and are therefore risking breaking the law (in their eyes) by putting any work in their collections on display. The absurdity of such a position renders me speechless.

In reply to the second blog piece, we wrote:

IPO, we're all getting heartily sick of this performative charade, and of having to repeat our arguments and rebuttals time and again. You are paid to do this, we're not. We would much rather spend our time carrying out our primary function of creating copyright works, licensing them, paying tax on our income (much of it from overseas), and thereby helping to reduce the UK's structural deficit. I would have thought Messrs. Cameron, Osborne and Cable would wish to encourage and support us in this task rather than push legislation through Parliament that will weaken us severely.

Many photographers and their representatives made submissions to your Consultation on Copyright; many of them included detailed responses to your questions and included practical and in some cases irrefutable rebuttals of them, and suggestions of alternative ways of achieving your goals without damaging the interests of creators. These submissions include: (Sadly, the IPO have redacted everything from Jon's submission)

Stop43's submission includes a detailed description of an orphan works solution which would enable access to orphan works by the general public with minimal damage to creators' interests, which included clear benefits for creators and users, and which we believe is likely to pass the Berne 3-step test. It has entirely been ignored.

All of our points, observations, arguments, appeals and suggested alternatives appear to have fallen on deaf ears. It is not surprising that there has been a general collapse in trust by creators in the IPO, and that this collapse is no secret. I have personally informed IPO staff of it, and of the reasons for it. The APIPG Inquiry has certainly made Mr. Quilty and Mr. Alty aware of it.

Throughout our submission, Stop43 repeatedly state: 'Do not introduce any copyright exceptions, ECL or orphan works schemes in order to satisfy economic demands or solve ‘access and use problems’ which could be satisfied or solved by services provided by the Digital Rights Registry/Digital Copyright Exchange. Allow transactional markets (including fee-free transactions) and Cultural Use to solve the problems these measures are intended to address. The DCE must be given this chance before the Government resorts to breach of international and EU human rights and copyright law, and the wholesale weakening of the public’s human rights and copyrights.

Richard Hooper's recent report makes it very clear that a Copyright Hub scheme linked to the rapidly proliferating DCEs is eminently feasible and can be expected to solve or very substantially ameliorate almost all of the alleged problems your proposed OW, ECL and exceptions are intended to solve, while maintaining creators' rights and interests, and genuinely stimulating economic activity and growth.

You assert:

‘Many respondents to the consultation on copyright told us that it is often difficult to differentiate between commercial and non-commercial uses, for example, the sale of postcards by a museum to offset the cost of an exhibition’, and therefore ‘The proposed scheme will apply to both commercial and non-commercial use of orphan works', but that 'our proposed scheme allows commercial use while the EU draft Directive focuses on cultural use.'

How is it that the EU appears capable of making this distinction but the UK IPO is not? Stop43 advocates the Cultural Use of orphan works.

Remove these clauses from the ERRB NOW, and give Richard Hooper's recommendations a fair chance before you inflict severe and irreversible damage on one of the few industries in which the UK is a world leader.