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

What is a "Diligent Search"?

Labour MP Michael Wills has written the following in reply to a letter from a constituent:

“it is not the case that the legislation says that ‘if someone finds your photograph, wants to use it and decides that they can't trace you, they can do whatever they like with it after paying an arbitrary fee’, as the website claims. Anyone wishing to use an image will have to conduct a diligent search for the owner of the right, and failure to do so would result in revocation of permissions and liability for substantial financial penalties.”

The Bill’s proponents have
not defined “diligent search” in Clause 43, not because they don’t know, but because a “diligent search” for the creator and owner of a photograph is practically impossible.

Every single day, thousands of photographs are uploaded to Facebook alone in a process that strips them of identifying metadata even if they had originally contained it, and thereby potentially “orphaning” them. Nobody knows how many billions of photos are on the Internet, let alone which are original works of contactable authors. As many as 90% of the billions are infringing copies according to American Society of Media Photographers’ attorney Vic Perlman’s testimony to US Congress in 2007. There is no cursory, let alone diligent, search mechanism for finding their rightful owners. Diligent search would require visual search capabilities that simply do not exist today. Text searches are especially liable to fail given absent bylines and erased metadata. In fact, were there any remotely effective means of identifying owners of orphan images there would be no “huge orphans problem” in the first place and no opportunity to legislate their use.

Government proposes that all licensed works shall be available for inspection in a register, so that revenant authors may reclaim their copyright and a proportion of licensing fees. Photographers are already obliged to expend large amounts of time and effort searching for and deterring infringing use. This register, or registers – the nature and number of which is being deferred until the Secretary of State can hopefully come up with a workable scheme – will demand every photographer in the UK periodically search in case any of his or her work has become orphaned and licensed by third parties. Why is this business burden on photographers acceptable as a means to allow others to use their work?

For an “orphan work licensee” to lose a claim for deliberate orphaning of a photographer’s work it will be necessary to prove that a 'diligent search" has not been carried out. At what point do you decide that your search has been “diligent”? Just how many haystacks are you going to have to say that you have searched, looking for that needle? How are you supposed to search them? What proof are you supposed to offer that you have? And in the improbable event that you lose the claim, to what “substantial financial penalties” will you be subject? The Government has been resoundingly silent on these points
after five years of "consultation". No statement issued by the Government or Intellectual Property Office and repeated by an MP has satisfactorily addressed this concern.

Next: it doesn’t matter anyway, because
"diligent search" is a red herring