The Privacy and Exclusivity Problems
Photographs commissioned from wedding, portrait and social photographers for private purposes are prevented from publication without permission of the subject by the Copyright, Designs & Patents Act 1988. Many photographers working for charities in sensitive areas do so with the explicit agreement that use of the photographs will be restricted to appropriate contexts, with all other uses being prohibited. Some children depicted in such photographs could be Wards of Court or on the At Risk register and have special privacy rights.
Commercially-produced imagery usually includes models and proprietary artefacts, whose consents and fees have been based on limited, deﬁned usages of those photographs - other usages would have commanded extra fees. The photograph's copyright holder or other stakeholders in the image such as models, their agencies and others might have commercial, political, religious, moral or ethical objections to some possible uses to which the picture might be put, and if permission were sought, would refuse that permission under all circumstances. The client for whom the photograph has been made is likely to have contracted for exclusive use.
Provisions in Clause 43 will probably undermine the ability of UK professional photographers to undertake exclusive contracts, since it will never be possible for them to guarantee that their work will not be orphaned and may be licensed to third parties including competitors.
These rights of exclusivity are guaranteed by international law, Article 9 of The Berne Agreement and Article 13 of TRIPS [the trade-related aspects of intellectual property rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization], to both of which The UK is signatory, both of which forbid the enactment of domestic legislation that allows any kind of licensing scheme "which conﬂicts with normal exploitation of the work" or will “unreasonably prejudice the legitimate interests of the author” (reasonably interpreted as meaning that the rights holder must be able to control, limit and directly benefit from the work’s exploitation).
By definition, it is impossible for a licensee of an orphan photograph to know conclusively whether or not any of this applies. No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.
Next: What is a”diligent search”?