Stop43.org.uk stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill






The Uses of Creative Intellectual Property in the Networked Era

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand how creative intellectual property is used in the era of digital media and digital networking. Here is a contribution from photographers on this subject - one with which we are intimately familiar. Different media tend to be put to different uses. This article, although referring to other media, will concern itself primarily with the uses of photographs.

Let us first categorise the uses to which creative Intellectual Property (IP) is put:

• End Use: The final use made of an instance of IP;
• Further Use: any use made of the IP before its End Use.

Both of these can be subcategorised:

Private Use (by an individual or household, as defined by typical DVD or CD License to Use statements);
Public Use (in which the IP is put on public display or made available for the public to enjoy or share); and
Commercial Use (in which the IP is used to generate revenue in some form, and/or to further a political, religious, or social (charity) purpose).

There is an economic value chain from the originator to end user of IP. End Use is exactly that: the end of the value chain. All other uses can be categorised as Further Use in that subsequent private, public or commercial use can be made of the intellectual property beyond this point.

Before the advent of cheap and ubiquitous networked digital capture devices, IP on most traditional media could not be easily put to Further Use because the practicalities and barriers to further use of that IP were difficult to surmount. It is now trivially easy to digitise almost any medium into usable formats for Further Use, and the ease of use and propagation of digital IP is such that with few exceptions there is no longer any real end-user of digital media: it can be endlessly used, re-used and combined or “mashed-up” into new uses.

It is important to note that the primary purpose of all copy-protection and Digital Rights Management mechanisms is to limit that instance of the IP to its defined End Use and prevent unauthorised Further Use.

Here are some examples of the six categories of use:

END USE
usually the end of the economic value-chain for that particular instance of the IP

Private

• a photographic print of a privately commissioned portrait
• a printed wedding album
• purchase of a limited-edition "art" print
• the enjoyment of books and other printed matter, traditional vinyl records, CDs, videotapes and DVDs bought for private use, as defined in their accompanying Licenses to Use
• before the widespread adoption of domestic tape and video recorders, broadcast radio and television.

Public
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event not staged to further a commercial, political, religious or social (charity) purpose.

Commercial
• listening to music "piped" to shops, restaurants, lifts, and other public spaces
• attending a pay-to-enter exhibition, performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar free-to-enter event staged to further a commercial, political, religious or social (charity) purpose.

FURTHER USE
not usually the end of the economic value chain for that instance of the IP

Private

• any recombination, collaging or “mash-up” of IP originated by others, for that individual’s study, practice or amusement

Public
• display on a public gallery wall
• placing a book in a public library
• mounting a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event
• Use in any way on the public Internet (including “blogs”) for non-commercial purposes (see below), or on “private” web-pages viewable by others, such as Facebook. Note: This is not private end use because it is in fact publishing, and makes it trivial for IP displayed there to be re-used by others, without authorisation. Furthermore, Facebook and others assert or have asserted rights to use IP posted to their services over and above those necessary for the provision of their services. Such assertions are known as rights-grabs.
• any recombination, collaging or “mash-up” of IP originated by others, for public display

Commercial
• the publishing, resale or re-licensing of the IP in any form, paid or not
• use in advertising, or in an advertising context (the advertiser is making money from the use. This includes search engine results pages or “blog” pages that contain advertising banners or links)
• use in a commercial, political, religious or social (charity) context; i.e. to further a commercial, political, religious or social (charity) purpose
• any public recombination, collaging or “mash-up” of IP originated by others, to achieve a commercial, political, religious or social (charity) end, such as the infamous “Ashes to Ashes” political posters
• borrowing a book, CD or DVD from a public library
• use on the Internet, beyond Public use
Editorial uses in “the media
Public Relations uses in “the media”, etc.
• “Corporate” uses such as Annual Reports, in-house magazines, brochures, flyers, etc.
• “Educational” use. United Kingdom universities generated £59 billion for the UK economy in 2009, more than the pharmaceutical industry or the agricultural sector. Education is not unprofitable, and many creatives depend upon licensing their IP for educational uses for their main income stream. We know that many students are encouraged to duplicate photographs found on the Internet for inclusion in their course work, and that their teachers and tutors do exactly the same when preparing tuition materials. This must be considered commercial educational Further Use.

An additional usage definition is possible: Cultural Use. In our view, this use can be defined as being similar to Public End Use, but with some restrictions. In other words:
• viewing a picture on a public gallery wall
• reading a book in a public library
• attending a free-to-enter performance of theatre, music, the screening of a film, a poetry recital or book reading, or similar event free of advertising and sponsorship messages and not staged to further a commercial, political, religious or social (charity) purpose.

This is an End Use: no Further Use in any way can be made of the IP. In a digital networked form, it is one possible way in which so-called “orphan works” might be made available for public cultural enrichment.

The Association of Photographers' Gwen Thomas on Moral Rights

Gwen Thomas, the Association of Photographers’ Legal & Business Director, last month gave an address to SABIP, the Strategic Advisory Board for Intellectual Property policy. This was the same meeting addressed by David Lammy, the former Minister of State (Higher Education and Intellectual Property), Department for Business, Innovation and Skills, who during his speech apparently announced that UK creatives already enjoy inalienable moral rights (listen at 1’ 18” from the start).

David Lammy has a Master’s Degree in Law from Harvard University.

Fortunately, Gwen knows her stuff rather more soundly than that and has written up her speech for an article in this month’s IMAGE magazine. The AoP have posted it on their website, and it is well worth reading and reflecting upon. It is especially recommended to the Intellectual Property Office and the Publishers’ Association. Some extracts:

“Moral Rights are, of course, important to all creators - but the Integrity and Attribution right are of particular importance to photographers. Indeed, any commercial visual artist, such as illustrators, value moral rights to protect their integrity and enhance their reputation.”

“The Integrity right is vital to photographers as images are easily manipulated. To be published, every image will go through a computer system after leaving the photographer - whether they’re delivered digitally or in analogue form.”

“Moral Rights currently have no monetary value, no teeth, so any discovery of a lack of credit (where asserted) or an image treated in a derogatory way, means the photographer has to prove a loss of income – as a freelancer this is incredibly difficult. How do you show a commissioner was trying to find you, because you weren’t credited, to give you a job or no longer wants to use you because they think the photography is no longer special or of a good enough quality. An injunction at this point is useless as the damage is already done, and monetary damages unquantifiable.”

“The lack of reward and recognition will diminish the incentive to create new works, which will, in turn, diminish the UK’s creative industry.”

Gwen is one of the few professional administrators to have emerged from the Digital Economy Bill Clause 43 fiasco with her reputation and integrity intact.

On Digital

Download this article as a PDF

Introduction


It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the nature of digital media and digital networking. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

Statements have been made by the Government to the effect that regulation of digital copyright is too complex for primary legislation, because too much remains unknown and powers must be granted in advance to regulate unpredictable future developments. This after more than four years of research and "consultation", starting with the Gowers Review in 2006 and continuing with the Lammy Review in 2009.

That is a patronising and lazy attitude unworthy of the intellects who took part in Clause 43's gestation and drafting. The primary characteristics of digital data, digital media and digital networking have been widely known, well understood and straightforward to describe for nearly thirty years. The current spread of Internet and email use, social networking and file sharing is simply a manifestation of the lowering of the barriers to entry to digital networking and the origination, sharing and recombining of digital media afforded by more powerful and smaller computing devices, more capable, easier-to-use software, and pervasive digital networks. There is good reason to believe that this trend will continue.

1. Digital data can be copied exactly.

This is the first primary characteristic of digital media, and what distinguishes it from conventional "analogue" media. Copies of digital files are exact copies, identical in every way, with no quality loss. This is why software works, why the spreadsheet you send to a colleague still calculates correctly, and why exact backups of your work are possible. Because of this characteristic there is really no such thing as a unique digital master file; there is only either a single copy of the data, or multiple identical copies. Of course it is also possible to derive functionally-similar copies from an original digital file. Resized digital images, images with their metadata stripped, and images saved in different file formats can all be visually identical and functionally similar to an original, but comprise different data structures.

This gives rise to the first point of confusion for consumers and other users of creative intellectual property. Unlike stealing a physical object and thereby depriving its owner of its use, the unauthorised copying of a digital data file leaves the original in place for its owner to continue unsuspectingly to enjoy. Unauthorised copying therefore appears to be a “victimless crime”. It is not. The original data file’s value to its owner is reduced because the unauthorised copy can go on to be freely duplicated and used elsewhere by others who might otherwise have bought an appropriate licence to use it at the proper market rate from its owner, or who might go on to use it in ways that its owner would not sanction. Law recognising this fact in relation to illegal file sharing was enacted in the Digital Economy Act 2010, and yet its antithesis, this false and sloppy “victimless crime” thinking, remained codified in the Digital Economy Bill Clause 43.

2. Digital data is separate from its storage medium.

A digital data file can exist stored on a hard disk, memory stick, CD or DVD, data backup tape, in random access or flash memory or any other physical storage medium and be copied freely between them. When you replace your worn-out old computer you copy your data from it to a new one: the storage medium changes but the data itself remains unchanged.

This gives rise to the second point of confusion for consumers and other users of creative intellectual property: they think that they have “bought” a CD, DVD or data file. In fact they have bought and own a copy of the physical storage medium, but only paid for a licence to use the intellectual property stored upon it; they have not bought its copyright. Consumers do not “buy” stories, articles, music or films; no-one need “buy” photographs. In all cases an appropriate licence to use is sufficient.

3. Digital data must be copied and transformed in order to use it.

Unlike viewing a photographic print, painting, drawing or sculpture; listening to live speech or music; or watching a film projection it is not possible to experience digitally-stored data at first hand. A digital data file resident on a physical storage medium must first be loaded by software into a digital device's random-access memory and then transformed into pixels on a screen to be viewed, or streamed to a digital-to-analogue converter and fed to an amplifier and transducer to be heard. These are transformative copying operations. This both proves the veracity of the first characteristic of digital data and introduces its fourth characteristic.

4. A digital network is no more than an extension of a digital device.

Any digital device consists of functionally-discrete modules such as data input, storage, processing and display, joined by internal communications conduits. A digital network is no more or less than the extension of these internal communications conduits beyond that device to other devices. Data travels through these conduits accompanied by identification and routing metadata. In so travelling its digital format might be transformed to comply with the technical requirements of the conduit, but on arriving at its destination it can be transformed back again to become an exact copy of the data on the originating device. That really is all there is to it. WiFi, Ethernet, cellular networks, IP addresses, MAC addresses, TCP/IP and the rest are merely digital plumbing.

5. All digital data transmission can be logged.

Your itemised mobile phone bill is a testament to this fact. Identification and routing metadata can be and is routinely logged. Such logging has been legislated for in the Digital Economy Act. This is the basis of all digital billing, accounting and auditing systems. Authorial metadata is no different from any other digital data and can be similarly logged.

It is significant that UK publishers accept, use and benefit from digital logging as a means of doing business when selling their wares, and yet object to the digital logging of the authorial metadata of their contributors' submissions as "unacceptably onerous and expensive". The same software and computer systems can easily carry out both functions simultaneously, and this is exactly what they do, by law, in Germany. Germany appears to enjoy a thriving publishing industry.

6. All digital copy-protection and digital rights management mechanisms can be subverted.

In transforming a stored digital file into pixels for viewing or sound waves for listening to, all encryption and Digital Rights Management mechanisms must be unlocked. Herein lies their weakness: the unlocking process can be reverse-engineered. The fact that these mechanisms can be subverted does not imply that they always will be every time a digital rights managed file is used. DVD copy protection was "cracked" within weeks of release of the format, but contemporary commercial DVDs remain copy-protected and sales healthy.

The subversion of digital rights management mechanisms can properly be compared to losses suffered by high street retailers as a consequence of shoplifting. Most shoppers do not steal; retailers remain profitable despite the activities of shoplifters. Retailers deploy measures to minimise shoplifting but regard the costs of those measures and the stolen stock as costs of doing business. They could reduce their losses by making their shops less consumer-friendly but know that in so doing they would reduce their overall sales and thereby suffer. Their measures limit their losses through shoplifting to a commercially-manageable level. In this regard, Digital Rights Management is no different. Many large, successful digital network businesses such as Apple iTunes are built upon digital rights-managed data distribution in the full knowledge that a commercially-acceptable proportion of that data will be "cracked" and illegally shared.

Future Legislation

Future digital copyright legislation has only to recognise these six primary characteristics of digital data and networking to be effective no matter what developments the future might hold by way of its proliferation and usage. It is quite wrong to assert that the future is unpredictable in this way. It is perfectly possible to word concise, comprehensible and effective primary legislation that takes into account the six primary characteristics of digital data and networking. Photographers intend to participate in exactly that.

(The author of this article has been directly professionally involved with digital data and networking for thirty years as a professional musician, R&D researcher for a major Japanese electronics manufacturer, professional photographer, and latterly, Apple Macintosh computer consultant to commercial and advertising photographers.)

Gone, but not forgotten



“PS. Clause 43 was dropped from the Bill yesterday. Following further reflection, the Government will aim to reintroduce measures along similar lines when an opportunity arises in the new Parliament.”
- Stephen Timms, then Parliamentary Under-Secretary, Department for Business, Innovation and Skills; Financial Secretary, HM Treasury; to Frank Dobson MP in a letter dated 8 April 2010

We would like to suggest to a theoretical future Labour Government that they produce a principled rebuttal of our arguments before they do so. For reference, they are:

The Privacy and Exclusivity Problems
What is a “Diligent Search”?
“Diligent Search” a red herring
The “Market Rate” Myth
Misplaced faith in “Consultation”

and, of course, our guiding principle:

“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”- Viscount Bridgeman, speaking in the House of Lords during debate on the Digital Economy Bill Clause 43

BAPLA, the aftermath, and the future

“It’s not good enough just to win. The losing side needs to know they have lost.” - Genghis Khan
“Victory has a thousand fathers; failure is ever an orphan.” - Jeremy Nicholl

We have won the battle, but the losing side clearly doesn’t understand that they have lost. They appear to regard the vote on April 7th in which Clause 43 was removed from the Digital Economy Bill before it became the Digital Economy Act as a temporary setback, nothing more. This is made apparent by the disappointing and unseemly pronouncements of the British Association of Picture Libraries and Agents (BAPLA), erstwhile “protectors of photographers”, who continue to claim to be exactly that.

The thousands of photographers and other creatives who took part in the Stop43 campaign know what really happened during the past month, because they watched it unfold in real time on Parliament TV, the EPUK, Pro-Imaging and Association of Photographers email lists, the Facebook group, Twitter, and the Stop43 website.

As BAPLA's website statement demonstrates, BAPLA do not appear to understand this. They still seem to be operating on the obsolete command-and-control assumption that they can control the news. They appear not to have realised that photographers already know the truth because they have lived it, and that they are discredited in the eyes of every photographer who actively campaigned in any way.

“When you find yourself in a hole, stop digging.” - Will Rogers

Of more concern is Big Culture (museums, galleries, the British Library and others), Big Media (publishers and broadcasters) and the Intellectual Property Office (IPO), who have been outflanked by the Stop43 campaign. They won't take that lying down. An Intellectual Property Act is coming and they'll do their best to make it The Return Of Clause 43.

Big Media (also mislabelled the “creative industries”), and their potential gain from Clause 43, we’ve always known about. Unrestrained they tend to act like greedy landlords, thinking only of today, bullying their tenant farmers into selling the seed-corn of professional contributors in return for this year’s profit, hoping that next year’s crop will simply spring, unsown and crowd-sourced, from the ground.

But Big Culture? They and the BBC also stood to be big winners from Clause 43. From an initial position of needing simply for conservational purposes to be able to digitise cultural artefacts such as decaying film stock, audio recordings, negatives and prints, their wants and wishes grew to an all-encompassing desire to make all culture freely available, including contemporary culture, rather in the manner of Google Books.

Doubtlessly this was all egged on by questionable EU assertions of the “economic value” of so-called orphan works, conveniently forgetting that they are not “orphans” at all - each one, in copyright, is someone’s lost property.

And so Big Culture, apparently ignorant of the economic realities of professional creatives’ lives and forgetting that the bulk of the artefacts that they conserve and curate are the products of highly-skilled professionals (how does one acquire the skill to work at the highest levels without that work being one’s full-time occupation?), set about an intellectual property land-grab so extensive that it would have inevitably terminated the businesses and careers of most professional creatives. What task will they leave to future cultural conservators if their overarching scorched-earth desires wipe us out?

We’re not really surprised. Big Culture is largely staffed by salaried career administrators, relatively few of whom have direct experience of or real sympathy with the freelance professional creative life. No wonder they know not what they do. It’s time for us to tell them.

And then there is the whole “consultation” process that spawned Clause 43, from Gowers onwards. The participants all spent a long time studying, negotiating under the threat of the EU Big Stick of wide-ranging copyright exceptions and the IPO's unwavering assertion that inalienable moral rights are non-negotiable (because Big Media find them “onerous” and too expensive), and between them constructed a latticework “solution” that they remain persuaded to be the best available under the circumstances.

They all have a huge emotional investment in the work they have done and “solution” they have negotiated, and now that they see it under threat from ignorant hooligans they continue irrationally and aggressively to defend it. Never mind that their “solution” lacks all principle. In this whole debate, we have not once heard our central thesis or arguments gainsaid from a moral or legal standpoint. All we have heard are the bleatings and tantrums of special interests and the fabricated enumerations of supposed economic gain.

The IPO’s position is interesting.

The default position of all photographers’ “representative organisations” has always been that there can be no discussion of so-called “orphan works” licensing without a corresponding implementation of inalienable moral rights. The IPO wrote to a Stop43 activist:

“Ministers are not willing to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to." - referring to Big Media.

And so, instead, the IPO proposed to change the existing law (which has been in place since 1988) in a way that one of the two parties affected is strongly opposed to. Photographers.

The IPO can and will produce fabricated enumeration of the economic value of the commercial use of so-called orphan works that will always trump any economic damage to the photographic constituency that we can enumerate. Cost-benefit will always be on their side. Photographers’ only substantial arguments thus far have been moral, ethical and legal, and that is what the legislative process is supposed to be.

If the IPO’s original task was just to build an economic case for so-called Orphan Works Licensing and Extended Collective Licensing, they have made a good job of it. Unfortunately for them, life isn't merely economic. If it were, we'd also have the return of public hangings with ticket sales and media rights, because that could also be shown to be of overall economic benefit. Morals and ethics preclude it.

What next?

Big Media must accept inalienable moral rights for photographers, copyright and Fair Contract law applied to Intellectual Property as it is in Germany. The Germans clearly have:

•• an equivalent of the BBC
•• an equivalent of the British Library
•• an equivalent of Bauer Publishing
•• a local News Corporation operation.

Germany doesn't appear to be a publishing wilderness, so why should the UK become one, if we have our moral rights?

• Big Culture must abandon its overarching ambition to be the free delivery conduit of all forms of culture, past and present, at the expense of the businesses and careers of professional creatives. Digital preservation of decaying artefacts and the making of those digital copies available to the public for strictly cultural use must suffice. Our so-called “orphan works" are not little golden coins lying on the ground for the "creative industries" to pocket and the "cultural sector" to support itself with. Instead, Big Culture must content itself with commercial exploitation of work of known provenance that it has been bequeathed. Our ideas will help them. Read on.

• Photographers and other creatives must grasp the initiative and develop their own ideas for a proper solution to the so-called “orphan works” problem. We have, and we are, and given that perhaps surprisingly we’re not terribly vindictive people our initial thinking points to a possible solution that could result in a reasonable win for all, rather than the winner-takes-all for Big Media and Big Culture versus obliteration of freelance professional creatives of Clause 43. It will have to pass the Berne three-step test first, assuming that it is possible for any use at all of so-called “orphan works” to pass that test.

Because of the conflict of interests their membership appears to represent, BAPLA might best be advised to get out of the negotiating and lobbying game altogether. Their current attempts to rewrite widely-known recent history and save face with their sponsors are unseemly and should stop.

When I saw my (excellent) MP and she asked me why we'd left it so late to act, I said: "we'd been relying on our professional associations to negotiate on our behalf." "Always a mistake", she immediately replied. Lesson learned.

The AOP's position is clear

On Tuesday April 6th, at the end of the Second Reading of the Digital Economy Bill, Stephen Timms, former MP for East Ham, and Financial Secretary to the Treasury, stood up, waved the “BAPLA letter” and said the following:

“I welcome the statement about clause 43 made last week by a number of photography organisations, including the Association of Photographers, the National Union of Journalists, the Royal Photographic Society and Getty Images, welcoming changes made to the Bill in the other place and looking forward to working with Government on the regulations to be made under clause 43.” - Hansard.

This announcement startled the Conservative Front Bench, who until that point had not known of the “BAPLA letter”. The Association of Photographers, a signatory of that letter, observing proceedings and realising that their true position regarding Clause 43 had just been publicly misrepresented, moved quickly and that night sent an email to Ed Vaizey and Jeremy Hunt, then Conservative Shadow Ministers for Culture, Media and Sport. The email clearly restates the AOP’s opposition to the Bill becoming law with Clause 43 intact.

The AOP have kindly provided us with a PDF of that email. Its text is reproduced below:

Ed,

Having followed the second reading of the Digital Economy Bill in the House of Commons today, as well as speaking to Paul Ellis this evening [who is both an AOP member and the architect behind Stop43]; I believe it would help if I made the AOP’s position very clear with regard to Clause 43

As I believe Gwen [Thomas] mentioned to you, when you met last Monday, the AOP’s view on Clause 43 has always been first and foremost that it should be totally removed from the Digital Economy Bill and that separate Primary Legislation be drawn up and introduced to deal with the complex issue of Orphan Works.  

In spite of amendments made to date, Clause 43 as currently laid down, remains unacceptable and totally unworkable in practical terms [we should know, the production, licensing and usage of images is our members’ primary business!].  In addition, no mention has been made of photographers’ moral rights as conferred under the CDPA 1988, which we would like to see become inalienable, in a similar way to that which Germany has adopted.

Indeed, no practical consideration has been given at all to the means by which any owner of copyrighted work can search a register or database [yet to be determined] on a daily basis, to see if any of their work [in some cases, hundred of thousands of images taken over half a life time] has been registered.  It is also important to remember, that digital images are collections of pixels and not text-based characters that can easily be searched for.

If, however, clause 43 cannot be removed and separate Primary Legislation not be drafted in its place; we agreed with other like-minded organisations [the NUJ, RPS, DACS, Getty] to co-sign a letter drafted by BAPLA, that stated our joint and unified concerns regarding the clause [this letter superseded a previous and stronger letter written by Getty’s lawyers, before clause 42 became clause 43].

I now understand that mention was made of this [BAPLA] letter in today’s debate, which if taken out of context or partially quoted, could provide a different view to that which was stated quite clearly in the body of the letter itself.  

The fact remains that the AOP is opposed to Clause 43 as it stands. We represent professional photographers and will uphold their rights and indeed the rights of all photographers.  As currently drafted, we believe that clause 43 is simply unacceptable and should be removed.

If it cannot be removed, we will work with the prevailing authority to ensure that photographers’ rights and concerns are clearly heard and understood.  This is because the final mechanism, what ever it is to fulfil the legislation [as stated], must work on a practical and legal basis, without creating further issues and difficulties that will then require additional legislation to work correctly.

We are not a political or commercial organisation – instead, we simply represent professionals, who conduct their business in an ever more complicated world.

Should you have any questions or wish to clarify any of the points stated in this letter, please call me at the office tomorrow on my direct line: 0208 749 4377, or on my mobile: 0207 749 4388.

Very best regards,


Kingsley Marten


Managing Director

The Association of Photographers Ltd.

Head Office & Registered Office:
81 Leonard Street
London
EC2A 4QS

"Ashes to Ashes" election posters - the guilty parties

Stop43 has learned that at no point were Kudos Film & Television, copyright holders of the Ashes to Ashes picture used in political advertising, approached by either the Labour or Conservative parties for permission to use the picture in this way.



Kudos’ PR company Premier Public Relations has said to us:

Neither Kudos nor BBC were approached by either party to seek permission to use the image or quotes from Ashes to Ashes for their posters or indeed the use of any images or quotes to be used in the sale of merchandise. Kudos own the copyright to the image and dialogue from Ashes to Ashes and as both Kudos and the BBC are non-partisan and do not endorse any political party, Kudos lawyers have written to the relevant retailers of this merchandise to request they cease the use of the image and lines from the drama thereof.”

And so, as we believed when we broke the story, both Labour and Conservative Parties stand in breach of Kudos’ copyright. We would also have thought that the parties’ advertising agencies Saatchi & Saatchi (Labour) and M&C Saatchi (Conservative), who know about such things as copyright infringement, exclusive rights and licenses to use, might have laid a restraining hand on excited Internet-generation political activists and their ill-considered mashups.

Jeremy Nicholl provides the full background.




The result:



Today, The Digital Economy Bill underwent its Committee Stage and Third Reading in the House of Commons. In the course of the debate,
Clause 43 was removed from the Bill.

The way is now open for photographers and other creatives to present
new thinking enabling the legitimate use of our genuine orphan works for strictly defined non-commercial “cultural” purposes in a way that will satisfy the needs of the cultural sector, to prevent the future orphaning of our work, and to redress defects in current copyright law.

Heartfelt thanks to all who have helped make this result possible.

Labour Party submits amendment before today's debate

Today the Labour Party tabled the following amendment to the Digital Economy Bill:

Digital Economy Bill[Lords], continued


Secretary Ben Bradshaw
   
* Page  52,  line  12,  leave out Clause 43.

But it’s not over yet. It has been pointed out that this could be a tactical amendment to test the strength of cross-party opposition to Clause 43. It may be withdrawn, with Government then confident of pushing Clause 43 through the Wash-Up.

Keep up the pressure, please.

The Tories robustly oppose Clause 43

Our confidence on Sunday in the in the line to be taken by the Conservative party against Clause 43 was well-founded. Here are some quotations from yesterdays’ Second Reading debate in the House of Commons:

We cannot support Clause 43. We would like to support the objectives of that clause on orphan works, but unintended consequences occur unless the wording is right.” - Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport

“Clause 43, on orphan works, and the subsequent clauses dealing with extended collective licensing, have been mentioned. That is another terribly sad subject, because the wish to use some of the creative content currently locked in libraries, museums and the BBC is absolutely right. The motivation behind Clause 43 is entirely admirable, but again, it was not properly thought through and there are genuine concerns about the conditions in which it will operate. There is supposed to be a market rate, but what is the market rate for a photograph that has never been used? Photographs have hugely varying costs depending on who took them, their content and their age, yet it is suggested simply that there should be a market rate. There is also concern about the so-called “diligent search” that the collecting agency is supposed to carry out, and how diligent it will actually be... Clause 43 is not fit for purpose... Clause 46, if it is a Henry VIII clause, should not be passed.” - John Whittingdale, Chairman, Culture, Media & Sport Committee

“...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 to a UK Government-appointed “licensing body”. You’ll never know unless you happen to find it being used in this way...” - Peter Luff, Chair, Business, Innovation and Skills Committee, quoting from Stop43’s public statement. Mr. Luff also quoted extensively from Jeremy Nicholls’ blog, with reference to the “Ashes to Ashes” copyright infringement affair

I can say categorically that we will not allow clauses 1, 21 and 43 to go through... My hon. Friend the Member for Mid-Worcestershire also mentioned in particular Clause 43 about orphan works and photo issues. I am glad that he did so; that is one of our red lines. We will not support any regulation that includes Clause 43. - Adam Afriyie, Shadow Minister (Innovation and Science), Business

Yesterday good day for photographers, but It’s not over until it’s over. That will be today. The “creative industries” - middlemen, aggregators and marketers, few of whom themselves create the “content” that they sell - were lobbying against us and for the retention of Clause 43 all day yesterday. We have no reason to believe that they might take today off.

The Tories are committed in their opposition to Clause 43. The Liberal Democrats, as yet, appear not to be. Photographers need one more day of effort, please. Thank you.

Clause 43 stands or falls today - ACT NOW

Today really is the day. Given the intensely controversial nature of the way the Digital Economy Bill is being run through Parliament, we were unsure of the exact procedure and schedule. Now we know that it will have its Committee Stage, Third Reading and be voted on in the space of around two hours this afternoon. We also know that our opponents were lobbying intensively all day yesterday, throughout the Second Reading.

IT IS EXTREMELY IMPORTANT TO GET OUR MESSAGE ACROSS TO THE LIBERAL DEMOCRATS. A full list of them is here.

You have the sources of information, the arguments to use, and the tools.
PLEASE USE THEM NOW. It doesn't matter if effort is duplicated - the more, the better. All content on stop43.org.uk is free for use in reporting this story.

SOURCES OF INFORMATION

http://www.stop43.org.uk/
http://www.jeremynicholl.com/blog/
http://copyrightaction.com/category/campaigns/digital-economy-bill

ARGUMENTS TO USE

Open Letter to Liberal Democrats
We are the authentic voice of photographers
Overall outline, plus problems in detail
The Government’s position rebutted, point by point
Our objections to LibDem amendments, including statement of photographers' current copyright problems
"Viral" images, each illustrating an aspect of Clause 43's problems
The Privacy and Exclusivity Problems
What is a "Diligent Search"?
"Diligent search" a red herring
The "Market Rate" Myth
Misplaced faith in "Consultation"

TOOLS

Virals
Twitter
Facebook
LibDem MPs list
Key MPs list
BIS Select Committee members list

PLEASE USE THEM NOW. Thank you.

List of all Liberal Democrat MPs

Below is a complete list of Liberal Democrat MPs & their email addresses. They need to have it urgently explained to them why the proposed Liberal Democrat idea of amending Clause 43 will not work, and that the clause must be deleted from the bill.

You will find sources of information, arguments to use, and tools here.

Nick Clegg
libdemleader@parliament.uk

Danny Alexander
danny@highlandlibdems.org.uk

Norman Baker
normanbaker@cix.co.uk

John Barrett
barrettj@parliament.uk

Alan Beith
cheesemang@parliament.uk

Colin Breed
colinbreed@blueyonder.co.uk

Annette Brooke
brookea@parliament.uk

Jeremy Browne
jeremy.browne@tauntonlibdems.org.uk

Malcom Bruce
brucem@parliament.uk

Paul Burstow
paul@paulburstow.org.uk

Lorely Burt
burtl@parliament.uk

Vince Cable
cablev@parliament.uk

Ming Campbell
fife_office@mingcampbell.org.uk

Alistair Carmichael
carmichaela@parliament.uk

Edward Davey
daveye@parliament.uk

Tim Farron
tim@timfarron.co.uk

Lynne Featherstone
lynne@lynnefeatherstone.org

Don Foster
fosterd@parliament.uk

Andrew George
andrew@andrewgeorge.org.uk

Sandra Gidley
gidleys@parliament.uk

Julia Goldsworthy
info@juliagoldsworthy.org

Mike Hancock
portsmouthldp@cix.co.uk

Evan Harris
harrise@parliament.uk

Nick Harvey
mail@nickharveymp.com

David Heath
davidheath@davidheath.co.uk

John Hemming
john.hemming@jhc.co.uk

Paul Holmes
chesterfield@cix.co.uk

Martin Horwood
martin@martinhorwood.net

David Howarth
info@davidhowarth.org.uk

Simon Hughes
simon@simonhughes.org.uk

Chris Huhne
chris@chrishuhne.org.uk

Mark Hunter
hunterm@parliament.uk

Paul Keetch
info@paulkeetch.org.uk

Charles Kennedy
charles@highlandlibdems.org.uk

Susan Kramer
info@susankramer.org.uk
Norman Lamb
info@normanlamb.org.uk

David Laws
enquiries@yeovil-libdems.org.uk

John Leech
leechj@parliament.uk

Michael Moore
michaelmooremp@parliament.uk

Greg Mulholland
info@gregmulholland.org

Mark Oaten
oatenm@parliament.uk

Lembit Opik
opikl@parliament.uk

John Pugh
pughj@parliament.uk

Alan Reid
reida@parliament.uk

Willie Rennie
info@dunfermlinelibdems.org.uk

Dan Rogerson
rogersond@parliament.uk

Paul Rowen
rowenp@parliament.uk

Bob Russell
brooksse@parliament.uk

Robert Smith
robert.smith.mp@parliament.uk

Andrew Stunell
enquiries@andrewstunell.org.uk

Jo Swinson
swinsonj@parliament.uk

Matthew Taylor
taylorm@parliament.uk

Sarah Teather
teathers@parliament.uk

John Thurso
thursoj@parliament.uk

Steve Webb
steve@stevewebb.org.uk

Roger Williams
williamsrmp@gmail.com

Stephen Williams
stephenwilliamsmp@parliament.uk

Mark Williams
williamsmf@parliament.uk

Phil Willis
phil.willismp@ntlworld.com

Jenny Willot
jenny@jennywillott.com

Richard Younger-Ross
yrossr@parliament.uk

Open Letter to the Liberal Democrats

Don Foster MP, Shadow Culture, Media and Sport Secretary, and Olympics

Dear Mr Foster

As a result of today’s Second Reading in the House of Commons and the Liberal Democrats’ stated wish to amend rather than delete Clause 43, we feel it necessary to restate our position to you, so that there should be no misunderstanding.

1. It is morally and legally indefensible to demand the use of existing orphan works without simultaneously enacting effective measures to prevent the generation of future orphan works. We need such measures quid pro quo for conceding any use of any kind of our orphaned intellectual property. This is our property, remember.

2. You propose to exempt photographs made after 1950 from any Orphan Works scheme.



With the greatest of respect to others we would submit that we, photographers, some of us professionally active before 1950 and still active, are the authority on this subject. We have conferred among ourselves and cannot conceive of a reliable way to accurately identify that cut-off point for a very substantial proportion of photographs.

The problem also remains of damage to the residual value of pre-1950 photographs bequeathed in wills to photographers' children and successors. Although an admittedly small number of photographers will be very significantly affected in this way, we see no reason why they should suffer when we believe that our new thinking, which we promise to work with you to realise, might avoid such damage whilst simultaneously giving the cultural sector what they say they need.

3. You propose to exempt photography from any Extended Collective Licensing schemes.

In our view and experience, current copyright law suffers from significant defects in the way it applies to photography. We have already pointed out some of them in detail. The removal of photography from Extended Collective Licensing proposals will result in photography simply not being discussed when secondary regulation is drafted. As a consequence, this opportunity for professional photographers’ crying need for the defects in current copyright law to be addressed will be lost, perhaps for a generation. We will have no chance to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

We urge the Liberal Democrats to consider what we believe to be the impracticality and negative consequences of your proposed amendments, withdraw them, and vote with the Conservatives to remove Clauses 43 and 46 from the Digital Economy Bill. This will allow the beneficial public and cultural intent underlying Clause 43 to be reintroduced in subsequent primary legislation after proper consideration, rather than in trying to amend something which we believe to be fundamentally flawed and unworkable.

In his speech, John Whittingdale MP, Chairman, Culture, Media & Sport Committee, stated that Clause 43 is not fit for purpose; Clause 46, if it is a Henry VIII clause, should not be passed. We, of course, agree.

Thank you.

Tories will not let Bill progess with Clause 43 still included

In reply to a question by Kate Hoey MP, Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport and Conservative lead on the Digital Economy Bill confirmed that Tories will not let the Digital Economy Bill progress through washup into law while it still includes Clause 43.

There has been no specific mention of Clause 46, the Henry VIII clause that allows the Secretary of State to amend at will the Copyright, Designs and Patents act 1988 and any “Digital Economy Act 2010”.
It empowers the Secretary of State to undo all of the changes to the Digital Economy Bill that have been so carefully negotiated, and make new changes. It is a “Henry VIII Clause” enabling changes to be made in pre-existing primary legislation by way of secondary legislation enacted via Statutory Instruments. A Secretary of State with a whipped majority can do more or less whatever he likes under Clause 46.

Tories "cannot support Clause 43"

Jeremy Hunt in the House of Commons at 16:50 BST.

"Superaffirmative Resolution Procedure" not enough

Harriet Harman has just announced that regulations implemented via Statutory Instruments will require "superaffirmative resolution procedure".

#deb
#stop43

THIS IS NOT ENOUGH. CLAUSE 43 OUT.

Tweet now, please. Use the
Tweet an MP site.

Why Clause 46 must go, too

Clause 46 must be removed. It empowers the Secretary of State to undo all of the changes to the Digital Economy Bill that have been so carefully negotiated, and make new changes. It is a “Henry VIII Clause” enabling changes to be made in pre-existing primary legislation by way of secondary legislation enacted via Statutory Instruments. A Secretary of State with a whipped majority can do more or less whatever he likes under Clause 46.

Henry VIII Clause - Wikipedia says:

Some statutory instruments are made under provisions of Acts which allow the instrument to change the parent Act itself, or to change other primary legislation. These provisions, allowing primary legislation to be amended by secondary legislation, are known as Henry VIII clauses, because an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539.[16] The Delegated Powers and Regulatory Reform Select Committee of the House of Lords issued a report concerning the use and drafting of such clauses, [17] an issue its chairman remarked "goes right to the heart of the key constitutional question of the limits of executive power". [18] Such clauses have often proved highly controversial — for instance, that in the Nationality, Immigration & Asylum Act 2002 which prompted the aforementioned report, and more recently the Legislative and Regulatory Reform Act 2006.

“Statutory Instruments”

Digital Economy Bill Section 46 does stipulate that decsions must be " laid before, and approved by a resolution of, each House of Parliament ". Wikipedia says "It should be noted that Parliament's control is limited to approving, or rejecting, the Instrument as laid before it: it cannot (except in very rare cases) amend or change it."

Government has stated that any Statutory Instruments to be enacted concerning Clause 43 must be subject to “Affirmative Resolution Procedure”. Wikipedia says:

Statutory Instruments which are subject to affirmative resolution are less common, making up about 10% of the total.[12] This is the more stringent form of parliamentary control as it requires positive approval, rather than the absence of a decision to annul. Accordingly, it is used where the delegated legislation may be more controversial.
The parent Act may require that the proposed Statutory Instrument is approved by both Houses of Parliament (or, in the case of an Instrument which relates to financial matters, by the
House of Commons only) either:
  • before it is made (ie in draft form),
  • after it is made, but before it can come into force, or
  • after it is made and has come into force, but it cannot remain in force for longer than a specified period (usually 28 days, excluding periods when Parliament is dissolved, prorogued or adjourned for more than four days) unless approved within that period.[10]
Once the Instrument is laid before Parliament, the Government will move a motion in each House that the Instrument is approved.
The last time a draft Statutory Instrument subject to affirmative procedure was not approved by the House of Commons was on 12 November 1969 when the House rejected four draft Orders relating to parliamentary constituencies.
[13]

Clause 46 in full:

46

Power to make consequential provision etc

(1) The Secretary of State may by regulations made by statutory instrument make incidental, supplementary, consequential, transitional, transitory or saving provision in connection with the amendments made by this Act.

(2) The regulations may—

(a) make different provision for different purposes,

(b) modify an Act passed before or in the same Session as this Act or subordinate legislation made before this Act is passed, and

(c) where they are made in connection with an amendment made by section 28 or by a provision listed in section 49(3), modify a provision of an Act passed, or subordinate legislation made, before the day on which that amendment comes into force.

(3) A statutory instrument containing regulations under this section that amend or repeal a provision of an Act may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

In this section—

“modify” includes amend, repeal or revoke;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978.

Second Reading today - ACT NOW

Today is the day. You have the sources of information, the arguments to use, and the tools. PLEASE USE THEM NOW. It doesn't matter if effort is duplicated - the more, the better. All content on stop43.org.uk is free for use in reporting this story.

SOURCES OF INFORMATION

http://www.stop43.org.uk/
http://www.jeremynicholl.com/blog/
http://copyrightaction.com/category/campaigns/digital-economy-bill

ARGUMENTS TO USE

We are the authentic voice of photographers
Overall outline, plus problems in detail
The Government’s position rebutted, point by point
Our objections to LibDem amendments, including statement of photographers' current copyright problems
"Viral" images, each illustrating an aspect of Clause 43's problems
The Privacy and Exclusivity Problems
What is a "Diligent Search"?
"Diligent search" a red herring
The "Market Rate" Myth
Misplaced faith in "Consultation"

TOOLS

Virals
Twitter
Facebook
Key MPs list
BIS Select Committee members list

PLEASE USE THEM NOW. Thank you.

Clause 43 is not a political issue

For the avoidance of doubt: Following the news that we are confident that the Conservatives will oppose Clause 43 we would like to make the following statement:

Stop43.org.uk is non-partisan. Stop 43 has not aligned itself with the Conservatives or any of the other parties. We are not backing or backed by any party or recommending that any party will enact better legislation when in power than any another. Our aim is to persuade ALL parties to remove Clause 43. Currently the Conservatives are the first to agree. Labour have been intransigent to our proposals and the LibDems want to alter the wording. We are still trying to persuade both Labour and LibDems to drop Clause 43.

Clause 43 is not a political issue, it is a legal one concerned with maintaining existing rights and international treaties. Releasing the news that we are confident that the Conservatives now agree with our legal arguments, does not infer any endorsement by Stop43 of them as a party, their policies, or their proposals for government should they win the next election.

Tories very likely to "robustly oppose" Clause 43



We have reasons to be confident that the Conservative Front Bench will set out robust opposition to Clause 43 in tomorrow's debate. Please don’t forget Clause 46: it, too, has to go. It empowers the Secretary of State to undo all of the changes to the Bill that have been so carefully negotiated.

The Outdoor Writers and Photographers Guild joins stop43.org.uk

A warm welcome to OWPG.

They've done it again



It isn’t the first, and now that the copyright-ignorant “everything on the Net’s free - I can just use it in mashups” Internet Generation is active in political campaigning, it won’t be the last. The Labour Party has breached another photographer’s copyright. They have used, unlicensed, a heavily retouched copy of the iconic David Cameron image. Labour’s original poster is here.

The Tories have an exclusive Worldwide licence in Perpetuity to use this image of David Cameron, but the copyright remains the photographer’s. How do we know? The photographer who shot this famous “airbrushed” image is a friend of ours. (In the original photograph Cameron’s face isn’t actually retouched at all - he happens to look like that when well lit by a top-end photographer).

It is inconceivable that the Tories would have licenced the image to the Labour Party for use in a party political poster.

This poster is a de facto breach of copyright under the Copyright, Designs and Patents Act 1988, perpetrated by the same Government that on Tuesday April 6th wishes to grant itself powers enabling legally illiterate, ill-considered changes to that very Act.

Clause 43 of The Digital Economy Bill originated at the Intellectual Property Office, headed by The Rt Hon David Lammy MP, Minister of State for Higher Education and Intellectual Property, who has a Master’s Degree in Law from Harvard University.

The Proposed Lib Dem amendments - our objections in detail

Stop43 have been asked to provide a more detailed explanation of our objections to the Liberal Democrats’ proposed amendments to Clause 43 of the Digital Economy Bill.

The Proposed Amendments:

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

Our Objections

1. We have stated our guiding principle, perfectly articulated by Viscount Bridgeman:

“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”

It is morally and legally indefensible to demand the use of existing orphan works without simultaneously enacting effective measures to prevent the generation of future orphan works. We need such measures quid pro quo for conceding any use of any kind of our orphaned intellectual property. This is our property, remember.

Such measures must be practically enforceable. It is already illegal under the Copyright, Designs and Patents Act 1988 amendment 296ZG of 2003 to knowingly strip metadata. It is almost impossible to prove that metadata was stripped knowingly with deliberate intent to infringe, facilitate or conceal infringement; consequently this provision is in practice unenforceable, as will be any similar provision.

2. In current copyright law, the financial penalties for copyright infringement are no greater than the licence fee payable had the infringed work been properly licensed before use. This creates a positive incentive for publishers to infringe because many of their infringements go unnoticed and unchallenged, with the result that their overall costs are significantly lower than if they legally licensed all of their content.

Photographers and other creatives suffer daily from the economic and misrepresentative consequences of such systemic infringement of their copyright. Among many, many others, The BBC is a known habitual serial infringer in this way and daily generates new orphans by the thousand, as a consequence of images uploaded to its website having their metadata stripped in the process. We are photographers - we have the evidence.

Preventing the use of orphan photographs made prior to 1950 (assuming that a workable method for reliably identifying such photographs can be found) will result in professional photographers’ crying need for the defects in current copyright law to be addressed to be accorded a much lower priority than if contemporary orphan photographs were also to be licensable. The removal of photography from any Extended Collective Licensing scheme will result in photography simply not being discussed when secondary regulation is drafted.

The combined effect of the two proposed amendments will be to accord a very low priority to rectification of the defects in current copyright law. The end result will almost certainly be the loss of any remaining opportunity to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

We have already stated that we wish to be given the opportunity to introduce new thinking into this debate. Your amendments will deny us that opportunity.

Our new thinking will provide the “cultural sector” with what it says it needs. Sadly, we cannot necessarily provide what it wants, or what it might like, because the economic consequences of those wants and likes will probably terminate our businesses, and professional careers with them. The “cultural sector” - museums, galleries and libraries - collect, conserve and curate cultural artefacts. What task will they leave to future conservators if their scorched-earth wants and needs wipe out the current generation of professional creatives?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.

"Illegal" election poster viral now available



Here it is. What a gift. Use of the background image, a publicity shot, for advertising in this way almost certainly breaches the terms of its PR licence.

People wonder why photographers make such a noise about breach of copyright, Orphan Works and Extended Collective Licensing. This is exactly the kind of “misrepresentation” that these schemes will promote.

If Labour and Conservative parties can't even understand normal licensing procedure themselves, then how can they be trusted to legislate changes to it?

"Ashes to Ashes" election campaign posters probably breach copyright. The proof? A mouse mat



The Labour Party yesterday released a poster based on the character Gene Hunt from the BBC series Ashes to Ashes. The Times Online says:

“The poster, designed by a member of the public, shows the Conservative leader’s head super-imposed onto the body of the popular character [Gene Hunt] from BBCs Ashes to Ashes. He is leaning on the bonnet of Hunt's trademark Audi Quattro next to the slogan, “Don’t let him take Britain back to the 1980s.” Hunt, played by Philip Glenister, is famous for his no-nonsense, politically incorrect style.”

The Conservative Party immediately issued a derivative poster with a different shot of David Cameron’s face superimposed, and the slogan replaced with “Fire up the Quattro. It’s time for change”.

Today, Sky News reports that Philip Glenister is not happy with the way the ads have been used.

According to the Telegraph, the idea for this image was only conceived of last week:

“Labour’s Ashes to Ashes poster was created by Jacob Quagliozzi, 24, a Labour supporter from St Albans, who entered a competition organised by the party’s advertising agency, Saatchi & Saatchi, which invited supporters to meet a brief posted online last weekend.”

The red 1980’s Audi Quattro featured in the image is extremely rare and has been positively identified as the one used in the show by a specialist car photographer (we’re photographers, remember: we know these things). Startled by the remarkably short time in which to find and photograph for the campaign the very vehicle used in the show (we’re photographers, remember: we know these things), we suspected that a promotional shot for the series had been used instead.

We were right. The image is all over the Internet. We have even found the original picture for sale on eBay being used as a mouse mat image. Comparison of the angle of shot, reflections in the car’s bonnet, “Hunt’s” stance, creases in clothing, etc. confirm our suspicion.

Ashes to Ashes is written by Monastic Productions, produced by Kudos Film & Television and distributed by BBC Worldwide. A publicity still from the series is posted here, credited “(c) Kudos Film & Television/Monastic Productions - BBC” - thereby stating that all three companies are rights holders in this image.

We would like to know:

1. Does the Labour Party have a Licence to Use this image for this purpose? This is a publicity (PR) picture - a PR Licence does not normally permit use for party political advertising. We won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

2. If they do have such a Licence, from whom did they obtain it? Monastic Productions, Kudos Film & Television or BBC Worldwide?

3. Why was it granted? On the evidence of this picture, the BBC almost certainly holds rights in all publicity images from the series. The BBC is prohibited by its charter from engaging in partisan political activity.

3. Has the Conservative Party also licensed the image from the rights holders for this purpose? Again we won't know unless and until someone produces a Licence to Use, and whether that Licence includes advertising. If not, they are in breach of copyright.

4. If they have licensed it, how, on a Bank Holiday? Of the three probable rights holders in the image, only the BBC is likely to have licensing staff working over the Easter weekend.

5. Does Philip Glenister’s contract allow the use of his image and performance for party political purposes without his prior permission?

6. Ashes to Ashes is broadcast by the BBC, which appears to hold rights in publicity images drawn from it. Why has the BBC allowed this image to be appropriated for party political purposes in this way? Furthermore, “Quattro” is a Volkswagen Registered Trade Mark. Has the Conservative Party obtained Volkswagen’s permission to use it?

Monastic Productions and Kudos Film & Television can also be held to account - did BBC Worldwide really grant them rights to licence stills for political advertising? Or is the series entirely the production companies’ Intellectual Property - did they merely grant BBC Worldwide distribution rights? Either way, the production companies have shown very poor judgement and arguably brought the BBC into disrepute, raising questions about the BBC's handling of external productions and associated Intellectual Property.

Similar questions can be asked over use of the show’s footage in a YouTube video.

BBC Worldwide is known to harbour ambitions of becoming a licensing body for Orphan Works and collecting society for Extended Collective Licensing.

People wonder why photographers make such a noise about breach of copyright, Orphan Works and Extended Collective Licensing. This is exactly the kind of “misrepresentation” that these schemes will promote.

If Labour and Conservative parties can't even understand normal licensing procedure themselves, then how can they be trusted to legislate changes to it?

"Why is my baby advertising loo roll?"



A new viral kindly submitted to us by a supporter, Laura Marsland, yet again illustrates the dangers of both misrepresentation and breach of privacy within the provisions of Clause 43.

In the UK, the use of images of people in advertisements and thereby endorsing products and services must have their subjects’ prior permission in the form of industry-standard signed
Model Releases, which act as a contract between the subject and photographer.

If orphan images are used in advertising, it cannot be known whether their subjects have given permission in this way. Furthermore,
there is no-one for a subject to sue for damages if their image is used in a way in which they don’t agree and have not or would not give permission. By definition, the photographers who created the photographs and hold the model releases if they exist, cannot be found.

Welcome to the future, everyone, if you fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

Liberal Democrats propose amendments to Clause 43 for Second Reading

The Liberal Democrats will try to introduce these amendments to Clause 43 on Tuesday, when it receives its Second Reading, and probable wash-up, in the House of Commons.

Don Foster MP, Liberal Democrat Shadow Culture, Media and Sport Secretary, and Olympics, has said in an email to Stop43:

“The LibDem team is clear that many of the bits of clause 43 are important BUT that the particular case of photography has got wrapped up in it in a way which isn't right... we are trying to do something more immediately and are seeking amendments to remove photography from the legislation. They are listed below.”

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

We recognise and appreciate the good intentions behind this attempt. Unfortunately, the road to hell is paved with good intentions.



1.
The Liberal Democrats reckon that they can tell a photograph made after 1950 from one made before. How? Carbon dating? Does this mean therefore that the Liberal Democrats now consider that it is reasonable to allow the use of orphan works while allowing them to continue to be mass produced? This is the fundamental flaw with Clause 43, and why at this stage, and because of Government's truncation of due Parliamentary process, we believe its removal is the only viable option.

2.
The Liberal Democrats want to exempt photography from Extended Collective Licensing. That is a substantial improvement on the current wording but leaves no door open to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

3. Stop 43 and EPUK were informed last Monday, 29th March, that there was
little or no chance of further amendments being made to the Bill - only wholesale removal of clauses or subclauses. How confident are the Liberal Democrats of getting their amendments read, voted on and incorporated?

4.
If the Liberal Democrats fail in their attempt, what is their fallback position? Enact Clause 43 or delete it? Please forgive us, but we have little faith in the implementation of assurances given by the present Government, won as concessions in return for the withdrawal of Lord Clement-Jones’ Amendment to remove Clause 43.

After the Second Day of the Lords Report Stage
Lord Clement-Jones, Liberal Democrat Spokesperson for Culture, Media and Sport, wrote the following to EPUK about the briefing paper we sent to him and his use of it in his Amendment to remove Clause 43:

“I certainly did base my remarks on your paper-immensely useful. It's always annoying to have to pull punches and not be able to vote but we wouldn't have won sadly. That means I just had to make threats about how we would scrutinize the regulations, and we will. In practice I think if you keep up the campaign they will find it very difficult to include commercial photographers in the Orphans works regulations.”

We read that as saying that the Liberal Democrats wanted Clause 43 removed but felt that they would not have won a vote in the Lords if they had insisted upon it. Why has their position subsequently changed?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.

As concerned photographers we, and we hope other photographers and creatives, recognise that there are legitimate "cultural" uses for orphan works and are eager to help. Given that this is probably the first occasion on which creatives en masse have had their views properly heard in this debate (as distinct from their "representatives", the "
creative industries"), we wish to be given the opportunity to introduce new thinking into this debate. We are willing and ready to help start building a new primary-legislation Bill to replace Clause 43, and to define and implement our new thinking.

BBC posts story perfectly illustrating misrepresentation

Headlined Artist's impression causes copyright blunder, the story describes how a design company breached the copyright of dozens of photographers by incorporating elements of their copyright work, without permission, into a visualisation of a planned city-centre development.

The computer-generated artistic impression was commissioned by Stoke-on-Trent City Council “...for the East West Centre team to give residents an idea of what the new leisure and retail complex will look like", and shows the likes of Jude Law and Barack Obama shopping, among many other “celebrities”.

Whereas none of these prominent people might themselves object to shopping at the new Centre, they might well have good reasons not to publicly promote it. In other words, this picture is likely to
misrepresent their views

A welcome to the future to all of them, if they fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

Copycat viral depicts Big Media as the winners if Clause 43 becomes law

Clearly inspired by the style of Stop43’s “viral” images illustrating intractable problems with Clause 43, an image has been posted to Flickr depicting Rupert Murdoch, Chairman and Managing Director of News International, and Mark Thompson, Director-General of the BBC, in fake advertisements apparently promoting gambling.

SEE IMAGE

As with our viral image “Only The Best”, this image also points out the dangers of misrepresentation in Orphan Works and Extended Collective Licensing. The image is apolitical, not derogatory and not libellous: the Chinese text translates as “Think Big, Win Big!”; the Russian text as “Think Win Big”, according to Google Translate.

In the UK, the use of images of people in advertisements and thereby endorsing products and services must have their subjects’ prior permission in the form of industry-standard signed
Model Releases, which act as a contract between the subject and photographer.

If orphan images are used in advertising, it cannot be known whether their subjects have given permission in this way. Furthermore,
there is no-one for a subject to sue for damages if their image is used in a way in which they don’t agree and have not or would not give permission. By definition, the photographers who created the photographs and hold the model releases if they exist, cannot be found.

Gambling is legal in the UK. However, given their prominent public positions in the UK, it is unlikely that either
Mr. Murdoch or Mr. Thompson would have given permission for their portraits to be used to endorse it in such a way - these “advertisements” are likely to misrepresent their views.

Welcome to the future, Gentlemen, if you fail to help prevent Clause 43 of the Digital Economy Bill from becoming law.

NUJ London Photographers' Branch votes against Clause 43

At their meeting on March 30th the NUJ London Photographers' Branch passed the following motion:

“This Branch backs the Stop 43 campaign to knock Clause 43 out of the Digital Economy Bill, condemns this government's attempt, in its last days, to force this highly controversial measure through the House of Commons without any debate, and calls on the next to introduce Moral Rights in full for all creators.”