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

Invest in UK Creative Industries? Why?

Prime Minister David Cameron has told an audience including the Duchess of Cambridge that "now is the time" to support the creative industries. Mr Cameron said:

"I think a very simple message today is that if you are involved in the creative industries, now is the time to come and invest in Britain.”

Mr. Cameron is clearly unaware of the legal uncertainty the Enterprise and Regulatory Reform Bill’s copyright exceptions, orphan works and ECL Clauses has already caused for the UK’s creative industries. Stop 43 heard today that several household-name Film & TV companies are considering abandoning the UK market and relocating outside the UK as a direct consequence of the expected chilling effects of this draft legislation, and before long they will be seen to be just the tip of the iceberg.

Why should anyone invest in UK creative industries, when thanks to the Henry VIII ‘enabling legislation’ in the ERRB, their intellectual property and investment in it could be collectivised and removed from them at the whim of an IPO civil servant, without warning or recompense, as the result of a new copyright exception or extended collective licensing scheme sneaked through Parliament in a Statutory Instrument, on the graveyard shift, in front of half a dozen sleepy MPs? For that is precisely what these clauses will enable.

Invest in UK Creative Industries? That’s a mug’s game while these catastrophically damaging clauses remain in the Bill.

IPO Propaganda

In the wake of the copyright exceptions, orphan works and ECL Clauses in the Enterprise and Regulatory Reform Bill, and an article in The Register that obviously struck a bit too close to home, the IPO have started a series of blog posts propagandising their proposals. The first article contains the usual set of zombie falsehoods that we have come to loathe.

"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."

This statement is simply false. It is demonstrably untrue. Stop43 and others have rebutted it several times at Copyright Consultation events, to the evident satisfaction of most of those present (including lP lawyers with rather more expertise and experience in this field than IPO staff) and yet zombie-like it refuses to die and the IPO, British Library, JISC, and their fellow-travellers continue to assert it.

An orphan work in a cultural institution can certainly be displayed to the public; it is for precisely this reason that many of them were deposited with or donated to cultural institutions by their custodians in the first place, so that the public can see them.

What the cultural institution cannot do is make a copy of that orphan work to exploit in other ways. It can reproduce it to preserve it, though; for almost all media it is already permissible to copy the work for this purpose - see Section 42 of the Copyright, Designs and Patents Act 1988. Stop43 is not aware of any objections from anyone to Section 42 being extended to encompass all kinds of works, for this purpose. In fact everyone we have spoken to is in favour of such an extension, and Stop43 advocates it.

"For example writers and publishers cannot use certain unique photographs to illustrate books on major world events..."

Yes they can. This happens all the time in a so-called 'risk-managed' way, in which authors will use photographs on a "good-will" basis. This weekend a Stop43 activist bought a recently-published contemporary history book (very contemporary, about a military project terminated in 2010 as part of the Strategic Defence Review) which is full of photographs used on this basis. Moreover it is common knowledge that cultural heritage institutions scan 'orphan' works and make those scans available for use, including commercial use, on this 'risk-managed' basis. Stop43 has hard evidence of this practice. Here we have yet another untruth being propagated, zombie-like.

So, IPO and others, don't go saying that these 'orphan' works are locked up, unusable, and unused. They are not, and it is not your place to mislead and distort this discourse with such false assertions.

"As well as enhancing cultural knowledge, the sale of such books, films and television programmes can contribute to economic growth."

The book mentioned above was bought at full price, not downloaded in digital form for nothing from a pirate web-locker. The book, the orphaned photographs in it, and its purchase, have together all contributed to the economy and economic growth. To assert otherwise is provably fallacious.

"It is also proposed that compensation appropriate to the type of work and type of use is set aside if they do reappear."

It is impossible to assess such compensation if the work in question was never intended to be used commercially, or its owner would never have sanctioned such use under any circumstances, or for the fee deemed appropriate by the 'licensing body'.

The Berne Convention Article 9 is clear and unambiguous:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.'

That means the authors, and not you, IPO.

"It will also be assumed that the author has asserted their moral rights; that is to say that their moral rights must be respected and have not been waived."

This is inconsistent. Why should an unknown author have better protection under the law than a known one? For years, photographers and others have campaigned for the automatic assertion of their moral rights. These pleas have fallen on deaf ears: there is no proposal in the ERRB or elsewhere for this to be implemented. And yet, we find that suddenly it is to be assumed that an unknown author has asserted his rights.

IPO, put an end to this absurdity and make moral rights automatic and unwaivable. Now.