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






New viral highlights "misrepresentation"



A new viral image comprising a pair of mock advertisements points out the dangers of misrepresentation in Orphan Works and Extended Collective Licensing. The image, “Only The Best”, is apolitical and not derogatory: the text reads “When only the very best is good enough”, Google-translated into Russian and Chinese.

Download Printable version

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.

There is nothing wrong with vodka or skin-care products. However, given their prominent public positions in the UK, it is unlikely that either
Lord Mandelson or David Cameron would have given permission for their portraits to be used to endorse these products in such a way - these “advertisements” are likely to misrepresent their views.

Welcome to the future, Gentlemen, if you allow Clause 43 of the Digital Economy Bill to become law.

Copyright Action website suffers apparent denial-of-service attack

The Copyright Action website appears to be suffering a denial-of-service attack. The site was knocked offline last night because it had breached its bandwidth limit. Investigation has revealed a high level of suspicious web traffic, matching the typical pattern of that caused by an automated attack from a botnet.

What a coincidence that this should happen just when the site’s information is of most use to Clause 43’s opposition, and most damaging to the Clause’s supporters. We wonder what could have caused it.

Copyright Action busts bandwidth limit

An avalanche of hits on Copyright Action’s pieces Big Money Breaks Cover and Why The IPO Is Wrong have pushed the site over its bandwidth limit this morning. The site is back online again now.

BIS Select Committee members list

The Business, Innovation and Skills Committee has the task of scrutinising the work of Messrs. Mandelson, Lammy, Timms, and the IPO. They are waiting to hear from you. Please don’t disappoint them.

• Mr Peter Luff, Chair Business, Innovation and Skills Committee

Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

Dr Roger Berry, Labour
Constituency tel: 0117 956 1837 / fax: 0117 970 1363 roger.berry.mp@parliament.uk

Mr Brian Binley, Conservative
Westminster Tel: 020 7219 8298 binleyb@parliament.uk
Constituency Tel: 01604 633414 / Fax: 01604 250252

Mr Michael Clapham, Labour
Constituency tel: 01226 731244 / fax 01226 779429 claphamm@parliament.uk
Westminster tel 020 7219 3000

Mr Lindsay Hoyle, Labour
Constituency tel: 01257 271555 / fax: 01257 277462
Westminster tel: 020 7219 3515 / fax: 020 7219 3831 hoylel@parliament.uk

Mr Mark Oaten, Liberal Democrat
Constituency Tel: 01962 622 212
Westminster Tel: 0207 219 2703 oatenm@parliament.uk

Mr Lembit Öpik, Liberal Democrat
Constituency tel: 01686 625 527 / fax: 01686 628 891
Westminster tel: 020 7219 1144 lembitopik@montlibdems.org.uk

Mr Ian Stewart, Labour
Constituency tel: 0161 707 4688 / Fax: 0161 789 8065 /
Westminster tel: 020 7219 3460 ianstewartmp@parliament.uk

Mr Anthony Wright, Labour
Constituency tel: 01493 332 291 / Fax: 01493 853 157
Westminster tel: 0207 219 3447 wrighta@parliament.uk

Also

Miss Julie Kirkbride, Conservative
Leaving at the end of this parliament

Ms Anne Moffat, Labour
Recently deselected from Labour party

Authoritiative Briefing Paper invalidates basis of Clauses 43 and 46

Gillian Spraggs of Action for Authors’ Rights has released a Briefing on the Copyright Clauses in the Digital Economy Bill. Exhaustively researched and finely argued, it is a definitive rebuttal of the entire sorry foundation to Clause 43. It also calls for the removal of Clause 46, a 'Henry VIII' clause that would confer on the executive very wide-ranging powers to modify primary legislation. It is challenging but required reading.

The Money breaks cover

A letter, originating from The Copyright Licensing Agency and signed by them, the BBC, BFI, PA, ALPSP and ERA, was circulated to MPs today.

All of these organisations are either already licensing bodies or have ambitions to be. Most of them have substantial archives of orphan works and would dearly love to be both judge and jury in self-licensing and setting fees for licensing of their unmonetised gold mines of other peoples’ intellectual property.

“Finally we see the commercial forces behind Clause 43, and that the cultural actors such as the British Library, British Museum, V&A and other museums and cultural institutions, in whose interests Government has purported to impose this stuff, are significantly absent. In other words, it is a smoking gun.” - Copyright Action

What a lot of money and lobbying power these people have.

The letter addresses none of the problems that we illustrate on this site. It addresses nothing that we have illustrated with our viral examples. We were expecting this. It's simply more of the same. They have made no new argument; they're only shouting louder.

The full text of the letter follows:

29th March 2010


Dear Lord Mandelson, David Lammy, Stephen Timms, Jeremy Hunt, Ed Vaizey, Adam Afriyie and Don Foster


DIGITAL ECONOMY BILL CLAUSE 43

As you are aware, the draft legislative provisions to enable the licensing of orphan works and extended collective licensing schemes have been the subject of intense debate and detailed amendment during the passage of the Digital Economy Bill through the House of Lords.

As the Bill awaits its Second Reading in the Commons, these provisions remain imperfect. But they are a significant improvement on the original Clause 42. As a satisfactory compromise between diverse interests, they should be considered a success.

A nuanced debate of the strengths and weaknesses of the Clause is now academic. The opportunity has passed for it to be amended further. But there is still a real danger that the Clause could be jettisoned altogether, during the wash-up.

We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available is likely to result in far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors. 

There will be many opportunities to engage in depth with the consultations and regulations which will be brought forward under Clause 43, and we look forward to doing so.

In the meantime, we would urge you to seek the consensus necessary to ensure that Clause 43 stays in the Bill.


Yours sincerely



Kevin Fitzgerald, Rob Kirkham, Amanda Nevill, Simon Juden, Ian Russell, Helen Nicholson
CLA BBC BFI PA ALPSP ERA

kevin.fitzgerald@cla.co.uk
rob.kirkham@bbc.co.uk
sjuden@publishers.org.uk
ian.russell@alpsp.org
hnicholson@era.org.uk


Key MPs to lobby - Labour MPs added

These MPs will all be key players in the negotiations over the Digital Economy Bill in the wash up. The Bill, and Clause 43, will either pass or fall down with their veto. It doesn't matter if they are not our local MPs; we also can write to them directly in their capacity as Shadow Ministers, Committee Chairs and Party Whips. Be aware that letters sent directly to Ministers will be ignored - they must be forwarded by constituency MPs.

Conservatives (potentially supportive)

• Kenneth Clarke, Shadow Secretary of State for Business
Tel: 0115 981 7224 / Fax: 0115 981 7273 clarkek@parliament.uk

• Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport
Tel: 0207 219 6813 / Jeremy@localconservatives.org

• Peter Luff, Chair Business, Innovation and Skills Committee (this committee scrutinises the dept for Business, Innovation and Skills that sponsored DEB)
Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

• John Whittingdale, Chair Culture, Media and Sport Committee (already very critical of the bill)
Tel: 01621 855663 / Fax: 01621 855217 jwhittingdale.mp@tory.org.uk

• Patrick McLoughlin, Opposition Chief Whip in the House of Commons
Tel: 020 7219 3511 patrick.mcloughlin.mp@parliament.uk

• Andrew Robathan, Deputy Opposition Chief Whip in the House of Commons
Tel: 01455 283594 / Fax: 01455 286159 southleicscons@btconnect.com

Liberal Democrats (wavering - trying to amend rather than remove Clause 43)

• John Thurso, Shadow Secretary of State for Business
Tel: 0131 337 2314 thursoj@parliament.uk

• Don Foster, Shadow Culture, Media and Sport Secretary, and Olympics
Tel: 01225 338 973 / Fax: 01225 463 630 fosterd@parliament.uk

• Paul Burstow, Chief Whip
Tel: 020 8288 6553 / Fax: 020 8288 6550 paul@paulburstow.org.uk

and opposition Members of the Culture, Media and Sports Committee
and the Business, Innovation and Skills Committee, very important as it’s believed that they would be the ones to scrutinise the bill in Commons Committee stage were it not being washed up.

Labour (must vote with Government, so need persuading to change Government position)

The Rt Hon Lord Mandelson, First Secretary of State, Secretary of State for Business, Innovation and Skills and Lord President of the Council
Tel: 020 7215 5621 / fax: 020 7215 5468 mpst.mandelson@bis.gsi.gov.uk

The Rt Hon David Lammy MP, Minister of State (Higher Education and Intellectual Property) Leads on Intellectual Property issues and the Intellectual Property Office. David Lammy was previously Minister for Culture at the DCMS and according to his biography was a champion of museums and public libraries during his time there
BIS Office tel: 020 7215 5923 mpst.lammy@bis.gsi.gov.uk
Alternative parliamentary contacts: tel: 020 7219 0767 / ax: 020 7219 0357 mail@davidlammy.co.uk http://twitter.com/davidlammymp http://www.facebook.com/pages/David-Lammy-MP/19129786540

• The Rt Hon Stephen Timms MP, Parliamentary Under-Secretary of State (Minister for Digital Britain) Leads on: Digital Britain, Communications and content industries, including creative industries; and IT and electronics sector
BIS Office tel: 020 7215 5229 mpst.timms@bis.gsi.gov.uk
Alternative parliament contact: tel: 020 7219 4000 / fax 020 7219 2949 stephen@stephentimms.org.uk http://twitter.com/stephenctimms

The above are all at the Department for Business Innovation and Skills 1 Victoria Street, London SW1H 0ET

The Rt Hon Ben Bradshaw MP, Secretary of State for Culture, Media and Sport (previously BBC correspondent for Berlin and still a member of the NUJ) (Exeter)
Constituency contacts Tel: 01392 424 464 / Fax: 01392 425 630
Parliamentary contacts Tel: 0207 219 6597 Fax: 0207 219 0950 bradshawb@parliament.uk http://twitter.com/BenPBradshaw

The Rt Hon Margaret Hodge MBE MP, Minister of State Leads on: Museums and Galleries, Libraries, Creative industries
Constituency contacts Tel: 020 8594 1333 / Fax: 020 8594 1131
Parliamentary contacts Tel: 020 7219 3000 hodgem@parliament.uk http://twitter.com/margarethodge

The above two are at the Dept for Culture, Media and Sport

• The Rt Hon Harriet Harman QC MP, Leader of the House of Commons, Lord Privy Seal Minister for Women and Equality
26 Whitehall, London SW1A 2WH
Tel: 020 7276 1005 Fax: 020 7276 1006 Leader@CommonsLeader.x.gsi.gov.uk


"Diligent search" a red herring

"The extended licensing provisions will apply to works whose rights-holders are traceable, as well as to orphan works. The Secretary of State may authorize a licensing body to license works for use even in cases where the author is not a member of the body and has not delegated any authority to that body to act as his or her agent.

The extended licensing provisions contain no requirement that the licensing body, or the person obtaining a licence, should carry out a search for holders/owners of rights who are not members of the licensing body. This is in distinction to the orphan works provisions, under which (in theory) no use may be made of a work until a diligent search for the rights-holders has been conducted."
- Action on Authors Rights

There is a lot of assertion by Labour MPs of the requirement for a “diligent search” to be carried out before an orphan work can be licensed, and the “substantial financial penalties” to be meted out to those proven to have failed to search diligently. Here’s an example,
written by David Lammy’s Intellectual Property Office and regurgitated by Michael Wills 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 Stop43.org 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.”

Except that they don’t, and won’t. In the Bill is currently drafted:

• There is no provision that demands that the licensing society and the potential user must both carry out diligent searches, or even that either of them must: the only requirement is that they reasonably believe that someone has.
• There is no statement at all in the Bill as to what happens should the author come forward, except that he/she gets paid - something.
• Furthermore, under subclause 116D(7) the Secretary of State can waive the requirement for a diligent search, and even the requirement that if the author is found, the work must be removed from the orphan works register(s) - seriously, that is really what it says.

So all you have to do is to say “There’s been a diligent search, I’m sure there has”; to which the licensing society can reply “We believe you. Here’s a license. That’ll be a quid - the rate you’d have paid on a microstock site. Now run off and do with it what you will.”

The devil, as always, is in the details.

Next:
The “Market Rate” Myth

Digital Economy Bill - Google to be the big winners?

Copyright Action have posted an excellent piece on campaign group Action on Authors Rights, pointing out Google as the big winner in the endgame:

“...on the site is the
best coverage of the Google Books deal that we have seen anywhere. The resemblance between Google's attempts to seize control of other peoples' copyright work, and Extended Collective Licensing, which allows publishers to do exactly the same with any work within their reach, should not be understated. Here it is not.

As author Gillian Spraggs says at the site
"Every age gets the culture that it pays for: pays for in money, and pays for in respect." We have always felt that the ultimate benefit of ECL will fall eventually to Google, not the publishers who hope to grab their own little piece of the same action via the DEB. That may be a temporary advantage over creators, but the public thirst for free will ensure Google wins. At some point Government is going to have to deal with Google itself adopting extended collective licensing and orphan works rights.

By giving the publishing lobby what it thinks it wants, Government may in fact be easing the success of the Google project of owning and exploiting all content it can get to. We have here an out of control food chain driven by power and greed and no sense of ecological sustainability. We believe it means economic extinction for most professional creators. We believe it means amateur content will be seized and abused. And now we wonder how long publishers will last, once Google has the means to subvert their exclusive copyright, using the same law they have wrought to subvert ours.”

David Lammy's creative letter

A photographer in Alistair Darling’s constituency has received the following, attached to Darling’s reply to his letter. Extracts have also appeared in other Labour MPs’ letters to their constituents, such as that from Michael Wills:

Dear Alistair

Thank you for your letter ... enclosing correspondence from your constituent xxx xxxxx... I am replying as Minister for Higher Education and Intellectual Property.

I am aware of the concern held by some photographers that orphan works legislation will create a means for content users to appropriate content at an unfairly low cost or for free. I would like to take this opportunity to reassure you that this is absolutely not the case. If any orphan works schemes are created that cover photographic works then any use of an orphan work under such a scheme can only take place after a properly diligent search has been carried out [he should read this]. The use will also require payment of a fair licence fee [and then this], and this fee will be held safely and available to be claimed by the rightful owner should they come forward. [And if they don’t, what becomes of the money? Does it go bona vacantia to the Treasury? No-one knows for sure - it’s not defined in the Bill. In time this could become a substantial pot of money.]

The Government's intention is 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 [read this again please, David].

Nothing in the Bill alters a photographer's ownership of copyright or moral rights in their work, or interferes with their licensing arrangements for that work. [Nothing is in the Bill to do that. The Bill confers powers for that to be done later in secondary legislation without proper parliamentary debate.]

As these concerns have been raised by a number of MP's and photographers, the Intellectual Property Office has published a web page which contains detailed information about the proposals. I believe this webpage addresses the issues raised by your constituent, and I would be grateful if you could pass on the following link:

http://www.ipo.gov.uk/pro-types/pro-copy/c-policy/c-policy-orphanworks /c-policy-orphanworks-photo.htm

[And then he really should read this.]

I hope this information is helpful

Signed

David Lammy

The Rt Hon David Lammy MP, Minister of State for Higher Education and Intellectual Property has a Master’s Degree in Law from Harvard University.

Action on Authors’ Rights

Action on Authors’ Rights is a grassroots group set up to campaign in the UK in support of authors’ rights. They have a simple, straightforward and equitable manifesto:

Authors have the right to

• have their intellectual property protected by the state
• have their moral rights properly acknowledged and protected by the state
• decide whether and where they are going to publish, and in what format(s)
• freely negotiate their own publishing contracts and licensing agreements
• negotiate in person, or through agents of their own choice, as they prefer

They have excellent analysis and authoritative quotations on the subjects of Orphan Works and Extended Collective Licensing, their probable effects on authors’ and creators’ well-being, and the likely drivers behind the attempt to legislate for them in Clause 43. Here is an example:

"This clause could potentially destroy the principle of direct licensing, which is the most efficient means of ensuring that a rights holder is remunerated exactly and properly for the use of their work, and lose creators the right to control their own economic and moral rights.”Paul Brown, Chairman of the British Association of Picture Libraries and Agencies (BAPLA)

They have an email list and a Facebook group: to join, email the organizer. Please join them.

The Privacy and Exclusivity Problems



Privacy

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.

Exclusivity

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”?

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 Stop43.org 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

The "Market Rate" Myth

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

“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"

Misplaced faith in "Consultation"

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

“In any event, as the article you forwarded states, much of the detail is yet to be decided by public consultation. Consultations cannot be ignored by the Government, as the article alleges, and it is a requirement of the Consultation Code of Practice that consultation responses should be analysed carefully and clear feedback should be provided to participants so that they can see how the responses influenced policy.”

An Allegory

A large media company wants to paint the south-facing wall of their big building. They want it black so that their new “green” heating system can use solar heat from the black wall, cutting costs and their carbon footprint. They approach the Council.

Residents in the creative work/live units opposite hear about this and realise that the black wall will make their units depressingly gloomy, making it hard for them to work, forcing them to keep their lights on and considerably increasing their carbon footprint. They'd rather have a white wall. They approach the Council. The Council carry out a "consultation".

Question. What colour does the wall get painted?* - because it cannot be both at once:

a. Black
b. White

Of course consultation cannot be "ignored", but
the final decision is not legally bound to implement all points raised during "consultation", as Lord Fowler pointed out about the "consultation" process around BBC governance that resulted in the barely-workable BBC Trust system, which he says most of those consulted had warned against.

“Consultations” on changes in copyright law, started by the Gowers Review and continued by the Lammy Review, have been going on for more than five years, and yet it seems that “unanticipated consequences” of Clause 43 just keep on emerging.

Problems
concerning privacy and the rights of subjects within photographs, exclusivity of use, the practical impossibility of carrying out a “diligent search” and proving that one has or has not been carried out, and of establishing a “market rate” for commercial licensing of photographs of unknown provenance will not simply evaporate as a consequence of “public consultation”.

Are all of these consequences
really unanticipated? Or have they in fact been anticipated by the Bill’s proponents and authors but regarded as acceptable collateral damage in the pursuit of the Bill’s primary aims?

*(Answer: Black, of course. Don’t be naïve.)

New virals emphasise privacy and licensing problems

Two new virals have been posted, emphasising privacy problems and the impossibility of establishing a proper licensing value for orphan photographs. Please share them freely. “Who’s That Girl?” is particularly appropriate for attaching to emails to Parliamentarians.

Key MPs to lobby

These MPs will all be key players in the negotiations over the Digital Economy Bill in the wash up. The Bill, and Clause 43, will either pass or fall down with their veto. It doesn't matter if they are not our local MPs; we also can write to them directly in their capacity as Shadow Ministers, Committee Chairs and Party Whips.

Conservatives (potentially supportive)

• Kenneth Clarke, Shadow Secretary of State for Business
Tel: 0115 981 7224 / Fax: 0115 981 7273 clarkek@parliament.uk

• Jeremy Hunt, Shadow Secretary of State for Culture, Media and Sport
Tel: 0207 219 6813 / Jeremy@localconservatives.org

• Peter Luff, Chair Business, Innovation and Skills Committee (this committee scrutinises the dept for Business, Innovation and Skills that sponsored DEB)
Tel: 01905 763952 / Fax: 01905 330075 luffpj@parliament.uk

• John Whittingdale, Chair Culture, Media and Sport Committee (already very critical of the bill)
Tel: 01621 855663 / Fax: 01621 855217 jwhittingdale.mp@tory.org.uk

• Patrick McLoughlin, Opposition Chief Whip in the House of Commons
Tel: 020 7219 3511 patrick.mcloughlin.mp@parliament.uk

• Andrew Robathan, Deputy Opposition Chief Whip in the House of Commons
Tel: 01455 283594 / Fax: 01455 286159 southleicscons@btconnect.com

Liberal Democrats (wavering - trying to amend rather than remove Clause 43)

• John Thurso, Shadow Secretary of State for Business
Tel: 0131 337 2314 thursoj@parliament.uk

• Don Foster, Shadow Culture, Media and Sport Secretary, and Olympics
Tel: 01225 338 973 / Fax: 01225 463 630 fosterd@parliament.uk

• Paul Burstow, Chief Whip
Tel: 020 8288 6553 / Fax: 020 8288 6550 paul@paulburstow.org.uk

and opposition Members of the Culture, Media and Sports Committee
and the Business, Innovation and Skills Committee, very important as it’s believed that they would be the ones to scrutinise the bill in Commons Committee stage were it not being washed up.

Labour (must vote with Government, so need persuading to change Government position)

The Rt Hon Lord Mandelson, First Secretary of State, Secretary of State for Business, Innovation and Skills and Lord President of the Council
Tel: 020 7215 5621 / fax: 020 7215 5468 mpst.mandelson@bis.gsi.gov.uk

The Rt Hon David Lammy MP, Minister of State (Higher Education and Intellectual Property) Leads on Intellectual Property issues and the Intellectual Property Office
BIS Office tel: 020 7215 5923 mpst.lammy.@bis.gsi.gov.uk
Alternative parliamentary contacts: tel: 020 7219 0767 / ax: 020 7219 0357 mail@davidlammy.co.uk http://twitter.com/davidlammymp http://www.facebook.com/pages/David-Lammy-MP/19129786540

David Lammy was previously Minister for Culture at the DCMS and according to his biogaphy was a champion of museums and public libraries during his time there.

• The Rt Hon Stephen Timms MP, Parliamentary Under-Secretary of State (Minister for Digital Britain): Leads on: Digital Britain, Communications and content industries, including creative industries; and IT and electronics sector
BIS Office tel: 020 7215 5229 mpst.timms@bis.gsi.gov.uk
Alternative parliament contact: tel: 020 7219 4000 / fax 020 7219 2949 stephen@stephentimms.org.uk http://twitter.com/stephenctimms

The above are all at the Department for Business Innovation and Skills 1 Victoria Street, London SW1H 0ET

The Rt Hon Ben Bradshaw MP, Secretary of State for Culture, Media and Sport (previously BBC correspondent for Berlin and still a member of the NUJ) (Exeter)
Constituency contacts Tel: 01392 424 464 / Fax: 01392 425 630
Parliamentary contacts Tel: 0207 219 6597 Fax: 0207 219 0950 bradshawb@parliament.uk http://twitter.com/BenPBradshaw

The Rt Hon Margaret Hodge MBE MP, Minister of State Leads on: Museums and Galleries, Libraries, Creative industries
Constituency contacts Tel: 020 8594 1333 / Fax: 020 8594 1131
Parliamentary contacts Tel: 020 7219 3000 hodgem@parliament.uk http://twitter.com/margarethodge

The above two are at the Dept for Culture, Media and Sport

Scrutiny Unit not taking written evidence before washup

From the Scrutiny Unit

Digital Economy Bill Update

The Digital Economy Bill will receive its second reading in the House of Commons on 6th April 2010. Unfortunately, due to the forthcoming election there is insufficient time for this Bill to go to a Public Bill committee, and so we will NOT be taking written evidence.

You may want to raise your concerns about the Bill with your MP and ask them to take the issues forward in the debate on 6th April.

You may also want to contact the All Parliamentary Group on Photography who may be in attendance at this debate.

Finally, you could try contacting any other All Party Group which may have an interest in this Bill. The full list of these groups can be accessed via this link (subject topics are listed after the country headings).

Digital Economy Bill will not undergo Committee stage before washup

The Digital Economy Bill will not undergo scrutiny by the Public Bill Committee before its simultaneous Second Reading and vote into law in the washup that precedes the dissolution of Parliament prior to the General Election.

According to the Scrutiny Unit, Public Bill Committee planning anticipate that Parliament will be dissolved close to the Bill’s Second Reading and that therefore it will not enter Committee stage, as there would be no committee available to convene.

The normal schedule would be Second Reading -> 1 week after, Committee formed -> 3-4 weeks of line by line examination. But that's not what will happen here. Committee planning are therefore not accepting written submissions.

No wonder John Whittingdale MP has said what he has about the constitutional legitimacy of this procedure.

Stop43.org.uk Facebook group tops 1,100 members

From a standing start less than a week ago, the Stop43.org.uk Facebook group now has more than 1,100 members.

Getty Images opposes Clause 43 in joint statement

Getty Images, a new and powerful voice in the Orphan Works debate, today announced its concerns over the provisions in Clause 43 by signing a statement drafted by BAPLA and jointly released by

The Association of Photographers (AOP)
British Association of Picture Libraries and Agencies (BAPLA)
Design and Artists Copyright Society (DACS)
National Union of Journalists (NUJ)
The Royal Photographic Society (RPS)
Getty Images

Understandably couched in diplomatic language, the statement nonetheless makes clear that

content creators, rights holders and the imaging industry continue to have concerns about the practical implementation of the Bill’s intentions and also whether it will hinder, rather than enhance, the wider digital economy”.

It is gratifying to see another industry alliance emerge to complement stop43.org.uk in publicly questioning the supposed benefits to be bestowed upon the imaging industry, photographers, and the general public by the Bill’s provisions.

We would hope that the fact that a $2 billion corporation such as Getty Images, a dominating force in the photographic industry, should be voicing its concern in this public manner will not be lost on Clause 43’s avid proponents in the Intellectual Property Office, BIS and elsewhere and give them pause to consider the practically unworkable nature of their current proposals.

FULL STATEMENT TEXT

Digital Economy Bill Second Reading and probable wash-up on 6 April

The Digital Economy Bill was presented to the Commons on 16 March 2010. This is known as First Reading and there was no debate on the Bill at this stage. This Bill will be on the Order Paper for a Second Reading debate on 6 April 2010.

Still no news on when the Bill will enter the Committee stage, or for how long it will last.

The Society of Wedding and Portrait Photographers joins stop43.org.uk

A warm welcome to SWPP and BPPA, a voice previously unheard in this debate.

John Whittingdale MP, Culture Media and Sport Select Committee Chairman, objects to the DEB's rush through Parliament

The BBC reports that

“At least one influential voice - Culture Media and Sport Select Committee Chairman John Whittingdale - is saying it would be a constitutional outrage to force such provisions through without proper scrutiny by MPs, on the strength of a few hours debate at Second Reading. Lawmaking should not be so perfunctory, he argues.”

Quite so.

The National Union of Journalists joins stop43.org.uk

Following the NUJ's Freelance Industrial Council vote by a substantial majority to back Stop43.org.uk, their decision has been ratified and we are pleased to have their substantial membership and powerful voice added to the campaign. A warm welcome to them.

No. 10 Petition against copyright reform in the Digital Economy Bill passes 5000 signatures

“We the undersigned petition the Prime Minister to Abandon plans to amend copyright protection for photographers which effectively amount to nationalisation of photography.”

The petition, started by Darren Hector, further states:

“We call on the Government to abandon plans, announced on 29 October 2009, to allow free and unhindered reproduction of photographs without payment or credit on non-commercial websites.

This is completely at odds with the Government's stance on file sharing of other forms of intellectual property (films and music) and raises the prospect of crippling thousands of small businesses while protecting large corporate interests.

The proposal uses phrases like "It must be seen to benefit all parties, not some at the expense of others" and yet the Government's proposal does exactly that. It takes the work of photographers who have invested time and money in creating work, and gives it to people who have no relationship with that work, for free.

Photographic businesses are already under severe strain and the proliferation of digital cameras gives the impression that creating professional quality imagery is easy. This will further devalue the work of professional photographers and destroy the photographic industry.”

SIGN IT NOW

Small Businesses already planning to "orphan" Getty Images' pictures

Posted yesterday on the Federation of Small Businessemail forum:

"I have just been reading elements of the New Digital Economy Bill and especially the aspect of Orphan Works. It appears to read as follows: 'will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search'. It also appears to want to take licensing and pricing away from copyright holders and place them with a central licensing body.

If this is correct and if you had purchased any image in good faith which did not have identification info contained within it then is it fair to assume that Getty and others could not come after people as they have been demanding thousands.

If so it’s great news for the future and should avoid this current debacle."


Getty Images, a $2 billion global commercial picture and media library, are famous for enforcing their IP rights and suing infringers. An out-of-court settlement with Getty Images for unauthorised use of pictures on their website recently cost a small Scottish transport company £20,000. The images could have been licensed for less than £1,000. Like the general public, small business owners tend not to understand copyright and assume that photos they find on the Internet are “free” and that they “own” photographs that they have commissioned, as if they’d simply bought a spade.

This is the clearest indication yet of how the Public and business in general will view photography if the provisions within Clause 43 become law. It will destroy the market for photography, destroy professional photographers, and seriously damage at least one $2 billion corporation. And this from the Department of Business, Innovation and Skills. What an innovation.

"Public Affairs" lobbying companies "amend the Digital Economy Bill"

Channel 4 News has broadcast an item exploring the burgeoning world of Parliamentary lobbying companies (“public affairs” companies) and their influence, especially in “weak” areas such as the House of Lords. Starting at around 2 minutes 34 seconds into the broadcast, the item discusses lobbyists’ influence on the Digital Economy Bill:

3.07: Gary Gibbon for Channel 4 News: “Get a Bill where there are enormous commercial interests at stake and you’ll usually find lobbyists getting their way. Some MPs think the Digital Economy Bill, just completing its way through Parliament at the moment, is a very good example.”

3:20: John Grogan MP (Labour): “For about the last six months there’s been lobbying companies crawling all over the House of Lords. They’ve been handing out Amendments to Peers, some of which have now got into the Bill.”

It may be fruitful to explore a conflation of the lobbying row, the excommunication of Hoon, Hewitt and Byers, and the indecent haste in which the Digital Economy Bill, a supposedly non-political Bill that might be expected to survive a change of Government, is being rushed through in a barely-constitutional way, if that. Parts of the Bill remain highly contentious; not only the provisions for terminating Internet connections but also the vague powers to implement Orphan Works and Extended Collective Licensing schemes in secondary legislation and to empower Lord Mandelson (or his successor) to change copyright law at will.

For photographers, these powers (in Clause 43) have the paw-prints of Big Media all over them. Big Media have Big Pockets and can afford Big Lobbying Fees.

The AOP urges its members to contact their MPs without delay

Today the Association of Photographers issued the following email bulletin to its entire membership:

“The Digital Economy Bill is coming to the end of it's process through the 2 Houses - due to an imminent election there will not be time to debate the Bill fully in the House of Commons. If you don't think it will affect you then take the time to click onto the following links and read about Clause 43 (formerly Clause 42)

http://hub.the-aop.org/

Due to a swell of protest from photographers and their representative bodies the Intellectual Property Office put up a page on it's website explaining what the clause means to photographers - however each point has been countered from a photographer’s point of view:

http://copyrightaction.com/forum/why-the-ipo-is-wrong

PLEASE write to your MP's now - all parties but particularly Lib Dems and Tories - once an election is called the window for debate is very, very small. Template letters don't work, you need to personalise your letter - click here to read pointers as to what to include:

http://hub.the-aop.org/News_archive/p2_articleid/175

You can find your MP and send your letter from here:

http://www.writetothem.com/


Gwen Thomas
Executive Director
Business & Legal Affairs”

The NUJ considers...

The NUJ's Freelance Industrial Council today voted by a substantial majority to back Stop43.org.uk. This decision however is subject to ratification either by the Union's National Executive Council, or the General Secretary.

“One of the problems that we have had is insufficient protection for intellectual property rights” - Barack Obama

The White House blog written by Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, makes interesting reading:

My job is to help protect the ideas and creativity of the American public. One of the reasons that I care about this is because I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property.

We at Stop43.org.uk couldn’t agree more. We wish to protect all intellectual property - both individually and corporately-owned. Overall, the Digital Economy Bill makes great efforts to protect corporately-owned intellectual property. What a pity is does so at the expense of hours, and in such a conclusive fashion.

Ms. Espinel’s blog concerns itself mostly with risks to the public from counterfeit goods. We’re concerned by risks to users of “orphan works” of litigation from their US owners. Amongst other things.

The Lobbying Row

The Guardian digs into the lobbying row that has resulted in ex-Cabinet ministers Stephen Byers, Geoff Hoon and Patricia Hewitt being suspended from the Parliamentary Labour Party.

"Stephen Byers said he didn't lobby Lord Adonis [the transport secretary]. Lord Adonis said he did. Stephen Byers said he called Peter Mandelson [the business secretary] and got regulations changed. Lord Mandelson said he did not. That's why we need a proper inquiry into all this. We do know that the policies referred to did actually change, so we need to see the minutes of meetings, the emails, the telephone logs, those things, to rapidly establish what did actually happen." - David Cameron

One can only speculate why it might be that the most contentious provisions in the Digital Economy Bill seem to be of such benefit to big business, at the expense of private individuals and the general public.

The British Institute of Professional Photography joins stop43.org.uk

A warm welcome to BIPP.

The Extended Collective Licensing scam

Copyright Action dissects the proposals for Extended Collective Licensing in Clause 43, assesses their likely effects on the market, and unearths the big winners from these proposals. As usual, you don’t have to dig far. Unsurprisingly, they are mostly the same big winners from other controversial parts of the Digital Economy Bill.

Photographer Andrew Wiard, who has been deeply involved in the “consultation” process around the Digital Britain report, tells us:

Clause 43 reflects very well the requirements of the publishing lobby. We know this because the Intellectual Property Office have repeatedly told us that the publishing lobby
• opposes moral rights and metadata preservation, because it's "onerous"
• wants mechanisms to legitimise use of the millions of works they have managed to anonymise
• wants Extended Collective Licensing because having to negotiate with individual creators is "cumbersome" (and besides, gives us too much say in the price they'd like to pay).


Hence we aren't likely to get much exposure or support from newspapers and magazines.

The British Press Photographers Association joins stop43.org.uk

A warm welcome to BPPA.

Digital Economy Bill: what you need to know

The Guardian has a useful summary of the entire Bill. Of orphan works, the article says: "Orphan works" are copyrighted works whose owner is unknown; this would create a means to license them. The extension of copyright/performers' rights proved controversial in the Lords. Status: Orphan works may survive the wash-up; copyright extension is less clear.

Luminaries object in open letter

The Guardian reports on an open letter from public figures objecting to the undemocratic way in which controversial measures in the Digital Economy Bill are to be rushed through Parliament before the General Election

UK Music chief Feargal Sharkey slates the Extended Collective Licensing proposals

• In the Telegraph, Feargal Sharkey is critical of the Digital Economy Bill’s proposals for extended collective licensing, which he says would permit authorised organisations to licence creative works without the creator’s permission.
He said: “The only way that you can respond to that as a creator is by opting out, assuming you knew that process was going on in the first place. We just think it’s incredibly broadly, incredibly badly worded and you cannot begin to believe how open-ended it is.”

We're Off!

stop43.org.uk gets off to a flying start and bursts its monthly bandwidth limit after being live for less than 8 hours