The "Market Rate" Myth
“It is [also] not the case that users will be able to make (sic.) an 'arbitrary fee' to use an image. The Government has made it clear that ‘there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty.’ Therefore, any regulations would aim to ensure that licensing of orphan works would be at the market rate.”
There can be no mechanism for determining the accurate market rate for any piece of Intellectual Property such as a photograph without knowledge of its provenance - i.e. who created it, how it was created, for whom, for what purpose, and who owns its copyright. It is well established that artworks lacking provenance cannot be properly valued, and that works previously wrongly attributed, for which the correct artist subsequently has been identified, have been drastically re-valued. Is your rumpled bed worth as much as Tracy Emin’s? Probably not, but if it looked the same to an inadequately-informed observer it might easily be over-valued. The converse might also easily happen.
There can logically be no such thing as a “market rate” for orphan photographs, in the same way that there is no “market rate” for art. Consequently, there can be no mechanism by which a licensing body might determine a “fair license fee” for any specific orphan. It is therefore accurate and correct to describe any such fee as being arbitrary. No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.
Next: Misplaced faith in "Consultation"