Copy Rights and Copy Wrongs: Part 2
After demythologising the IPO’s myth-making, let us now turn to some other copyright memes currently doing the Internet rounds.
1. ‘Photographers must register their work straight away.’ WRONG. No legal orphan works exploitation scheme or ECL can be launched until the Regulations enabled by the Enterprise and Regulatory Reform Act have come into force, and that is unlikely to be before October 2013. After that, some form of registration will be necessary in practice if you are to guarantee that your work cannot be declared orphan. The PLUS Registry is a very good place to start and we urge all photographers interested in protecting their property to sign up, get a PLUS ID, and embed it in the metadata of all their photographs.
2. ‘Orphan works’ are free to use right now.’ WRONG. There are no legal orphan works exploitation schemes in the UK and there will not be until the ERR Act Regulations come into force, and even then ‘orphan works’ will not be free to use. Their exploitation will be licensed on completion of a verified ‘diligent search’ and after payment of a fee to the licensing authority. Orphan works will not be ‘free’.
3. ‘It is misleading to claim that the ERR Act would permit digital images to be used without permission and compensation for the rights holder, and it is surprising that the claim has gained such currency.’ WRONG. Let’s assume the ‘orphan work’ in question is yours. If it is exploited as an orphan work, and therefore without your knowledge, permission, and payment to you (because you could not be found and contacted by the work’s intending exploiter), or your work is exploited under ECL (without your knowledge, permission, and payment to you because you are not a member of the ECL licensing body and have not opted out of its scheme), it is absolutely true to claim that the ERR Act would permit digital images to be used without permission and compensation to you, the rights holder. If it did not, it would not permit the licensing of orphan works, or ECL, both of which are intended and designed to legalise the exploitation of works without their owners' knowledge, permission, and payment to them.
4. ‘Copyright is a balance between rights owners and users, and its purpose is to benefit the consumer by ensuring that works are created.’ WRONG. The purpose of UK copyright law is to grant authors of artistic works an automatic, exclusive property right (with attached moral and human rights) of limited duration, with certain limitations and exceptions.
The Introduction to the Copyright, Designs and Patents Act 1988 states:
1 Copyright and copyright works
(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films [F1or broadcasts], and
(c) the typographical arrangement of published editions.
The right is exclusive:
2 Rights subsisting in copyright works.
• (1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.
A word scan on the Copyright, Designs and Patents Act 1988 results in the following:
- author: more than 100 instances
- owner: more than 100 instances
- property: more than 100 instances
- right: more than 100 instances
- offence: more than 100 instances
- payment: 94 instances
- criminal: 42 instances
- royalty: 29 instances
- create: 27 instances, none of which are in relation to 'ensuring that works are created'
- free: 9 instances, all in relation to Fair Dealing and Permitted Acts
- balance: 2 instances both referring to 'balance of trade', with reference to imports and exports of goods
- consumer: 0 instances
- stimulate: 0 instances
5. ‘Copyright infringement, other than in certain limited circumstances, isn’t a criminal offence. It’s what, in law, is described as a “tort” – a civil wrong.’ WRONG. This is a common, oft-repeated mistake. Copyright infringement is a criminal offence in most cases. It is both criminal and civil.
The relevant offence is S107 (2A) of the Copyright, Designs and Patents Act 1988 which makes it a criminal offence to breach copyright by communicating work to the public, either if you're a business, or if you're a private individual (in the latter case only if it materially prejudices the interests of the owner). It applies where they have reason to believe that they are infringing copyright - which will be in almost all cases since copyright is automatic, unless they have good reason to believe that copyright may have expired (70 years from death of author) or been expressly waived. In essence copyright infringement, at least where the image is published, e.g. on the web, is a criminal offence. This criminal offence is commonly referred to as 'copyright theft'.
6. ‘What benefit does the owner of an orphan work actually get from their copyright? They can’t earn any money from it, as nobody can find them to pay them.' WRONG. Again, let’s assume the ‘orphan work’ is yours.
- Your work might already be exploited elsewhere, by other users, or in other media, and therefore not be an orphan in those contexts. A classic example is that of authors self-publishing eBooks. There is no guarantee that a 'diligent search' will reveal this: remember, intending exploiters must carry out a ‘diligent’ search, not an exhaustive search, and the academic sector wants ‘diligent’ in practice to mean ‘not very diligent at all, and only for some samples from an entire collection’. Many so-called 'orphan works lists' contain considerable numbers of false entries, including the HathiTrust and ReLIRE lists.
- It may not be your intention to enter them into the market in the first place, and indeed your wish that your works NOT be commercially exploited.
- As far as you’re concerned, ‘benefit’ can take many forms other than the proceeds of commercial exploitation, and indeed such exploitation can and does reduce the value of those other benefits to you.
- Exploitation as an orphan work is likely significantly to reduce the residual value in your work, should you then choose to exploit it commercially yourself.
- If licence fees payable to you as a revenant rights owner (that is, you discover your works being licensed as orphans and reclaim them) or penalties for false exploitation as orphan works are no higher than remedies currently available for copyright infringement, then the orphan works scheme will be of no benefit to you, only to rights users.
7. ‘Intellectual property isn’t real property - it’s just a philosophical construct.’ WRONG. All rights, including physical property rights and human rights, are philosophical constructs. IP as a property right is part of the US Constitution. All modern law, legislation and policy is based on the idea that it acts for society’s greater good. Of course, there is dispute between different schools of philosophy and different cultures as to exactly what ‘society’s greater good’ means.
8. ‘Copyright is incompatible with Free Speech.’ WRONG. Article 19 of the Universal Declaration of Human Rights says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” This declaration places no obligation on authors to make their works generally available free of charge and does not grant a universal right to receive ‘information’ without paying for it, if payment is required by its author. Ideas, of course, are not subject to copyright. Moreover, intellectual property is also protected by the UDHR: Article 27 says: “(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author” and Article 12 says: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Citizens must be able to express their own opinions. According to the European Court of Justice a copyright work is ‘the author’s own intellectual creation reflecting his personality.’ It is an expression of its creator’s opinions and represents its creator, which is why EU and UK copyright law includes these inalienable moral rights. Modern western democracies are based on the principles of individual responsibility, universal literacy, and universal suffrage. In an age of widespread participation in the democratic process via written and visual communication the moral rights to be identified as the author of your work; to object to derogatory treatment of your work; and to object to false attribution of your work; are fundamental. They guarantee that your ‘free speech’ is authentically yours and ‘reflects your personality’. It remains scandalous that you must proactively assert your moral rights, and that some authors lack the right to do so.
Orphan works schemes and ECL allow copyright works to be exploited without their authors’ and owners’ knowledge, permission, and payment to them. Such schemes appear to be incompatible with both the spirit and the letter of Articles 27 and 12 of the Universal Declaration of Human Rights.
9. ‘Copyright law must keep up with technological progress.’ WRONG. Copyright is the philosophical principle of your ownership of and control over your expressions of your ideas and opinions. It is a combined property, moral and human right which is quite deliberately agnostic towards technology. There are similar examples of rights being independent of technology in other legal areas. For example, throughout most of history, most cultures have adhered to the philosophical principle that ordinary citizens must not kill each other, despite technological progress and the increased efficiency of lethal weapons. The USA is full of privately held guns but murder remains a capital offence. Another example: it is quite possible that within a few years advances in scanning technology and 3D printing will make it quick and easy for criminals to create functional keys for all but the most expensive and sophisticated locks. What then? Declare private property null and void because ordinary citizens can no longer afford to keep their doors locked? De-criminalise burglary? Of course not; such ideas are absurd. So it is with copyright and technology.
10. ‘The old 20th century copyright law just doesn’t work; things cannot remain unchanged; some kind of solution for orphan works is needed and will appear; some kind of ECL will appear; the only constructive thing is to try and shape what’s coming. We can’t Canute our way back to 1990 or be left behind with neither input nor credibility.’
To take these points in order:
- The old 20th century copyright law just doesn’t work; things cannot remain unchanged.’ RIGHT. Stop43 put a lot of time and effort into our submission to the Hargreaves Review describing how it doesn’t work, and suggesting ways to correct it.
- ‘Some kind of solution for orphan works is needed and will appear.’ RIGHT. There are already orphan works schemes in operation in Canada, Japan, Hungary and some other countries. All are little-used, and according to analysis carried out by BSAC (Annexe C) conflict with international law and/or if implemented here would contradict EU law. Stop43 proposed and published our own orphan works ‘solution’ three years ago and included it in our Hargreaves submission.
- ‘Some kind of ECL will appear.’ RIGHT. It already has in the Nordic countries, but according to BSAC (Annexe D) it is very different in character to that proposed by the IPO. In practice many collective licences granted by UK collecting societies are de facto ECLs because inevitably they encompass works belonging to non-members. DACS’ Payback scheme is one such, and DACS has admitted it.
- ‘The only constructive thing is to try and shape what’s coming. We can’t Canute our way back to 1990 or be left behind with neither input nor credibility.’ RIGHT. And this is why over the last three years Stop43 has written more than 150,000 words of submissions; given oral evidence to the BIS Select Committee; attended all but two of 2011’s Copyright Consultation London events; initiated, participated in or supported the high level briefing paper, the threatened Judicial Review, and the US photographic representative organisations’ letter to BIS MInister Vince Cable; attended meetings by invitation with Lords, MPs and Ministers including a forthcoming meeting with IP Minister Viscount Younger; and is a member (again by invitation) of the IPO’s Orphan Works and ECL Consultation Working Group and the Copyright Hub Images and Metadata workstream. The Association of Photographers regards Stop43 as an ally; the Chair of the British Photographic Council has said: “most BPC members support Stop43”. Input and credibility are vital.