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

Hargreaves - our initial response

We are still digesting this complex document with its interlinked proposals and dependencies. It is precise in places but apparently intentionally vague in others, and raises as many questions as it answers.



  • If the answers are yes, then the Digital Copyright Exchange has Stop43’s wholehearted support. If the answers are no, or it will be used to impose automated and standardised pricing, commoditising our IP, or its purpose is simply to enable the commercial use of orphan works, then we are implacably opposed to it.


  • No Strengthening of Moral Rights: this is absurd. How are we supposed to trade our property if we lack the right to assert our authorship of it? The Moral Rights exceptions are obsolete. We are amazed that Hargreaves has chosen to duck this issue, hiding behind his “hard economics” remit. The Digital Copyright Exchange cannot function properly without automatic and unwaivable moral rights.

  • No Fair Contract Law for IP: another serious omission. Involving Ofcom in IP disputes is a good step, but the number of such disputes can only significantly be reduced by fair contract law. Germany has Fair Contract Law for IP; it is a larger economy than ours, is growing faster, and has thriving publishing and IP markets. There’s your evidence, Professor Hargreaves. Bring it here.

  • Extended Collective Licensing and commercial use of Orphan Works: this is disastrous; Clause 43 with knobs on. There is not even any attempt to charge a “market rate”; orphan works are to be licensed for a nominal fee. Clearly a sop to Big Culture, the BBC and those “internet entrepreneurs” we hear so much about, it is also the Big Stick to force everyone’s IP into the Digital Copyright Exchange.

The practical result will be to orphan anything not registered with the Digital Copyright Exchange, including the uncountable billions of amateur images, and thereby massively expand the number of orphan works. Rather than turning off the orphan works tap, this proposal turns it into a fire-hose. It is also massively in breach of the Berne Convention and TRIPS international copyright treaties, to which the UK is signatory.

Professor Hargreaves has adroitly dealt with the poison chalice he was handed in this Review by pouring the poison all over creators:

‘The British Film Institute estimates that if legal provisions enabled it to trade in orphan works it might generate an additional annual gross income for itself of more than £500,000.’

That is little more than half the annual turnover of a single top-end advertising photographer. We thought this Review intended to stimulate growth! Commercial orphan works licensing will trash this photographic business sector in the UK and drastically reduce its tax contribution, and all to give the BFI half a million quid?

‘4.54 ...It is very possible that some real discoveries are hidden in these archives and it is certain that new generations of creators will use some of these works in new ways – just as Romeo and Juliet led to West Side Story and scores of other adaptations – allowing new economic value to be realised. Opening up orphan works is a move to which there is no national economic downside.’

Pure James Boyle, and as disingenuous as it comes. Romeo & Juliet has been out of copyright and in the public domain for centuries. Of course there is a national economic downside - loss of income from commercial uses of their work by the “orphan” rights-holders, severe disruption to the market for new works, and consequent loss of UK tax revenue from creators who pay far higher effective rates of tax than “entrepreneurs” and global corporations. Paragraph 4.54 is an absolute disgrace.

Hargreaves rejects Fair Use as being incompatible with EU law, and instead advocates Extended Collective Licensing, commercial Orphan Works use and (perhaps, we don’t know; Hargreaves doesn’t say) a Digital Copyright Exchange automated and standardised pricing system, all of which are incompatible with EU law.

On top of this he insists on registration with the Digital Copyright Exchange as a prerequisite to full legal IP protection, an absolute breach of Berne’s “without formality” principle that will create a two-tier copyright system.

If access to and registration with the Digital Copyright Exchange is not free of charge, this is probably also in breach of Human Rights legislation: one must not be required to pay to enjoy the full protection of the law.

The key to this report lies in these two statements:

2.6 ...There is significantly less empirical evidence on the economic effects of design rights and next to no evidence on copyright policy. The lack of economic evidence on copyright may reflect a public debate shaped by a desire to provide creators with a “just reward” rather than by hard economics...

4.58 most cases the fee for use of orphan works would be nominal, recognising that the works involved represent a national treasure trove. We recognise that there will be concerns from some rights holders who fear that a growing resource of almost free to use orphan works could injure markets for other works. This is a good example of a case where wider economic interest outweighs the perceived risk to rights holders.

Hargreaves’ evidence-based Review proposes to deprive us of our rights and trash our businesses in the ‘wider economic interest’ on next to no evidence.

I’m a creator. Inevitably, despite my best efforts, some of my work has been or will become orphaned. Just when did my property suddenly become part of a “national treasure trove”? When did amateur work, not created for commercial gain, suddenly become fair commercial game for resellers and users without payment to its owners? If this was suggested for physical property it would rightly be regarded as outrageous.

Where’s Lewis Carroll when you need him?

article last updated 2011/05/19 16:30