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

Stop43's reply to Professor Hargreaves, Part One

Stop43 are flattered that Professor Hargreaves has chosen directly to respond to us on the IPO blog.

Stop43’s initial response to his Report is the collated, consensus opinion of all of our members who were available to read it on its day of publication, and not just the opinion or misreading of one member. If we have all misapprehended its meaning, this can only be a result of vital, key points being omitted or buried among details. How, otherwise, did we all miss them? Our starting point was one of optimism.

Having been badly misrepresented ourselves, Stop43 have no wish deliberately to misrepresent others. However, we reserve the right to base our analysis on POSIWID.

POSIWID: The Purpose Of a System Is What It Does.

“The purpose of a system is what it does. This is a basic dictum. It stands for bald fact, which makes a better starting point in seeking understanding than the familiar attributions of good intention, prejudices about expectations, moral judgment or sheer ignorance of circumstances." - Stafford Beer

‘POSIWID refers to the commonly observed phenomenon that the de facto purpose of a system is often at odds with its official purpose... [and] is generally invoked to counter the notion that the purpose of a system can be read from the intentions of those who design, operate or promote it’ - Wikipedia


Professor Hargreaves says:

‘Paul says the Digital Copyright Exchange will breach the law if it sets prices. But the report makes it quite clear the exchange won’t do that. It says that pricing is a judgement for licensors.’

We are grateful for this clarification and glad that this is his intention.

However, given that pricing is a crucial function of the Digital Copyright Exchange, and not a minor detail, we are surprised that we all missed this in our initial reading of the Report and have been unable to find explicit mention of it in the text. Such a crucial characteristic should not be hidden in detail or left to be inferred; it must be stated unambiguously and explicitly. We would be grateful to Professor Hargreaves if he would quote the relevant text to us, please.

Other crucial characteristics of the Digital Copyright Exchange appear to remain undefined. We have tried and failed to find explicit answers in the Report’s text to the following questions. We have placed Stop43’s National Cultural Archive proposal’s answer in parenthesis:

  • Will there be a registration fee to join the DCE? (NCA: No. Any registration fee would preclude mass participation.)
  • Will the DCE be entirely free to submit to and to use non-commercially? (NCA: Yes. Again, fees for non-commercial use would preclude mass participation.)
  • Will commercial submissions and searches be chargeable? (NCA: No. Search fees would burden businesses small and large with substantial and onerous additional costs.)
  • Will submissions be automatic, compulsory for publishers and voluntary for creators? (NCA: Yes. This is the only way to guarantee mass participation and create a genuine de-orphaning system.)
  • Will it efficiently allow creators, rights-holders and users to negotiate usage fees in the normal way? (NCA: Yes. A properly functioning market depends on the ability of buyers and sellers individually to agree prices via negotiation.)
  • Will it create a two-tier copyright system, with only registered users enjoying the maximum protection of their IP rights that the law provides? (NCA: No. Apart from moral and ethical concerns, Stop43 believes this to be a mechanism of market distortion, as Simon Crofts argues.)

Again, we would be grateful to Professor Hargreaves if he would quote to us his Report’s text in which these questions are answered explicitly.


We will respond to Professor Hargreaves’ remarks in a subsequent post.


International lawyer-turned-photographer Simon Crofts has dealt with this clearly and succinctly on his blog. His verdict: “Hargreaves orphan works proposals couldn’t work”. Stop43 agrees with his opinion and the reasoning behind it.


Professor Hargreaves says:

‘Paul has also suggested in the Stop 43 response that anything not registered with the DCE will become orphan. That’s the opposite of what the review says. I have proposed a means of guaranteeing against orphaning. Nobody would be obliged to take it up, but it’s simply perverse to construe this as Paul does.’

Whilst the DCE will in practice guarantee against orphaning, it will foster the idea that any IP not registered can be assumed to be orphan, and even if it is not can be treated as such, as Simon Crofts says:

‘Yes, I know that strictly speaking, unregistered works would still have copyright attached to them. But that right would be worth little. A copyright owner would only be able to enforce copyright protections where they could prove that the person wanting to use the work knew who the owner of the image was and went ahead anyway. Otherwise, that person would be fully entitled to pay £1 and use the image as they wished. If the owner of the image found out, they could claim no damages at all for the use up to that date (except, perhaps, for claiming the £1). Yes, they would then be entitled to negotiate a licence for future use, in practise that would very rarely happen. The state sponsored copyright thief would simply move on to the next £1 image.’

‘The real practical effect of Hargreaves’ proposals would be to remove copyright for unregistered works as far as UK law is concerned in all but name, except in the few cases where the copyright owner could really and positively prove that the person using the image couldn’t possibly have not known their identity.’

This is the case in the USA, where few lawyers will consider taking on a case in which the infringed IP is not registered.

Stop43’s National Cultural Archive proposal would circumvent these problems by not allowing commercial use of orphan works, which removes the expense of administering commercial orphan works licences; and by having no submission or research fees, encouraging the maximum participation. The NCA would be effective in reuniting parents and orphans, and in generating licensing transactions, but it would not be not essential to take part for the purposes of copyright protection and so would not discriminate against creators outside the UK or those in the UK whose work is not part of the NCA. Therefore, the NCA as we envisage it would not breach Berne, or TRIPS, or cause market distortion.

POSIWID. The Purpose Of a System Is What It Does.

Using POSIWID analysis the purpose of Professor Hargreaves’ combined DCE, ECL and orphan works proposal appears to be to create a relatively small, legitimate gulag of professional, registered work in the DCE and turn the uncountable billions of unregistered amateur and user-generated works into dirt-cheap fodder for the wider economy. Of course, that is exactly what he was asked to do: fuel the Government’s Plan for Growth by the massive and wholesale transfer of property rights from individual creators - which in the Facebook era means almost everyone - to private enterprise and the Cultural Heritage Sector, which is the POSIWID purpose of Fair Use. It would result in the biggest transfer of value in the UK from the weak to the strong since The Enclosures.

Oh, and because DCE-unregistered foreign-owned IP will essentially become regarded as orphan under his proposed system, his purpose is also potentially to expose any orphan work licensee to the wrath of US Copyright Office-registered rights-holders:

‘So, you’ve bought your £1 licence to use an image, and stick it in your ad campaign. You then discover that the image comes from the US, and it was registered for copyright protection there. You have perhaps a $150,000 law suit on your hands for each image used. The £1 license that you bought from your UK licensing authority turns out to be worthless. If this scenario seems fanciful, then ask the Daily Mail, who are currently being sued for $1,000,000 in the US for using several images without permission (they’re being sued for $150,000 per image). If those images had been UK images, they would have got away with it, and could only have been sued for peanuts even if they had been caught. If they had been unregistered in the UK, the Daily Mail could have happily paid £1 per image to make it all right under UK law. And then of course been sued for $1,000,000 in the US.’ - Simon Crofts