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






The end of SABIP

On 19 July the Department for Business, Innovation and Skills announced changes in order to streamline its partner organizations by reducing the number of 'Arm's Length Bodies'. This includes the dissolution of the Strategic Advisory Board for Intellectual Property Policy (SABIP).

Evidently, BIS and the Department for Culture, Media and Sport agreed with our assessment of SABIP that as constituted it was not at all “independent”, existed in practice only to provide apparent legitimacy to the previous Government's Intellectual Property policies, and that its £750,000 annual budget could be better spent elsewhere.

Its reports were vacuous, based on questionable methodology, notably light on meaningful statistics, and in the main simply pleaded for further research to be carried out. A true QUANGO, then, primarily engaged in perpetuating itself and its “work”.

Stop43 does not mourn its passing.

The Photography Markets

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the varied markets for photography and their characteristic subcultures. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

First, let us list the different genres (the subject matter or “content”) of photographs and the markets in which they are licensed.

Genres include:

• Portraits, Weddings & Social
• Landscape
• Wildlife & Nature
• Sports
• News, Documentary & Reportage
• Interiors
• Architecture
• Still Life
• Lifestyle
• Fashion
• Cars, Aviation & Transport

The difficulty and cost of creating images within and between genres varies widely. For example, anyone attending a public airshow can easily shoot pictures of aircraft from the ground for the price of the entry ticket. Photographing the same aircraft air-to-air from another is a far more demanding and costly affair.

Markets for photographs include:

Social and weddings (private commissions)
Fine Art
Editorial
Public Relations (PR)
Corporate
Advertising

"Stock photography" is not itself a market, but a means of supplying photography markets with pre-existing images. Similarly, photographic competitions are not a market, but are increasingly used by unscrupulous organisers imposing rights-grabbing entry terms to acquire libraries of stock photographs for commercial re-use at little cost to themselves.

Images with near-identical content are commissioned, created, valued, licensed and used very differently in different markets. With the exception of the Public Relations and Corporate markets, which overlap somewhat, it is highly misleading to assume that what prevails in one market is also true for others.

Few photographers are professionally active in all genres and markets. Most operate in multiple genres but only a few markets; others specialise in one or two genres but operate in multiple markets; the best-known photographers usually specialise in one or two genres and markets.

Each market for photography has its own distinct subculture based on its combination of the following factors:

• The Supplier/Client Ratio
• The Commissioning process
• The Creation and Production Process
• The Valuation Process
• The Licensing Process, including the prevalence of unfair contract terms and rights-grabs
• Usage, particularly usage restrictions, exclusivity, privacy, and whether the photograph will be subject to End Use or Further Use
• The proper functioning or failure of the market according to orthodox free-market theory.

SOCIAL & WEDDINGS

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market overwhelmingly comprise individuals or microbusinesses.
The Commissioning process: private commissions. As such, images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: varies from available-lightreportage” to full-blown lit location and studio work at the high end of the market.
The Valuation Process: fees negotiated directly between client and supplier. Many suppliers offer a tariff; the properly competitive nature of the market enables clients and suppliers easily to match quality, style, deliverables and fee to mutual satisfaction.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use.
Usage: images are used for private purposes. Deliverables tend to be photographic prints or wedding albums. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

FINE ART

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market mostly comprise private individuals or microbusinesses; galleries sell prints to the public on behalf of photographers; some large cultural institutions collect photographs.
The Commissioning process: self-commissioned or, less frequently, private commissions. Images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: the entire range of production methods and processes is represented. Prints are usually unique or produced in limited editions. Verifiable documented proof of provenance is of paramount importance.
The Valuation Process: fees negotiated directly between client and supplier. Valuations range from a few tens of pounds to tens of thousands - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use and public display.
Usage: images are collected and displayed for private, cultural and investment purposes. Deliverables tend to be photographic prints. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

EDITORIAL

The Supplier/Client Ratio: most parts of the market are oligopolistic, characterised by high concentration and grossly unbalanced with a great many suppliers competing to supply relatively few clients. The supply side of the market overwhelmingly comprises amateur, semi-professional and professional individuals or microbusinesses; clients mostly consist of large corporate media combines.
The Commissioning process: members of the public freely supply images for no fee, sometimes in return for a “byline” or credit; freelance professionals and microbusinesses supply “on spec”, sometimes at their own rates but usually at rates dictated by the client; clients also directly commission work from photographers or their agents. Clients usually use their market dominance to dictate terms. Picture Agencies and Stock Libraries also supply clients, often via commodity “subscription deals” in which the client is licensed to use a fixed number of images per day, week or month for an inclusive fixed fee.
The Creation and Production Process: the entire range of production methods and processes is represented.
The Valuation Process: clients usually use their market dominance to dictate fee levels, which are usually imposed on suppliers (“day rates”, “shift rates” and newspaper “space rates” are prime examples) although direct negotiation between supplier and client can occur, depending on an image’s perceived exclusivity and commercial value to the client. The Base Usage Rate method is sometimes used at the top of the market. Valuations range from free use to tens of thousands of pounds - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited editorial use. Book and magazine publishers are notorious for imposing onerous rights-grabbing contracts on suppliers, often also demanding that the supplier indemnify the publisher against the costs of potential unknown and unpredictable legal action as a result of publication over which the supplier has no control. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Newspaper and magazine publishers routinely publish images without offering payment to their owners, marking the use as “await invoice”, in the clear expectation that many such uses will go unnoticed and unchallenged, and thereby reduce licensing costs. Few other industries systematically defraud their suppliers in this way.
Usage: images are used in a non-advertising editorial context to illustrate books, magazines and newspapers, on commercial websites, in other media, and in an “educational” context. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use in that publishers will then use the digital media commercially in a multitude of ways to generate revenue for themselves. Along with social media websites, publishers and broadcasters are the main generators of so-called “orphan” photographs, usually by failing to credit the photographer and employing website systems that strip identifying IPTC metadata from the digital image files as they are uploaded. As an example, the BBC alone daily “orphans” hundreds of images in this way. Their behaviour is quite usual.
• Because of this market’s externalities, distortions and gross imbalance of power and competition between suppliers and clients, this is mostly a failed market according to orthodox free-market theory and can only be made to operate satisfactorily for suppliers by rectification of the deficiencies in current UK copyright law, inalienable Moral Rights for photographers and the extension of Fair Contract law to include Intellectual Property.

PUBLIC RELATIONS

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small PR agencies through to large corporations, charities and public bodies.
The Commissioning process: PR agencies or corporate PR departments make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake PR work, sometimes using lights and assistants, often unassisted and using available light or on-camera flash. PR work is often viewed as commodity photography, with little opportunity for the photographer to offer personal style and with it, scarcity value and higher rates.
The Valuation Process: fees negotiated directly between client and supplier. “Market” hourly, half-daily and day-rates predominate. In the extreme upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is occasionally used.
The Licensing Process: most clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited PR use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. High-end clients tend to have a reasonable grasp of copyright and limited use.
Usage: Images are licensed for further free supply to publishers and others to illustrate articles favourable to the end-user client. Events illustrated range from “grip and grin” to corporate hospitality events and product launches. The PR market tends to confine itself to specific events and PR campaigns. Images are not licensed for advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

CORPORATE

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small businesses through to large corporations, charities and public bodies.
The Commissioning process: SME’s, corporate press and marketing departments or design agencies working on their behalf make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake corporate work, often using lights and assistants, occasionally unassisted and using available light or on-camera flash.
The Valuation Process: fees negotiated directly between client and supplier. “Market” day-rates predominate, but in the upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is well-established. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: at the lower end of the market, clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited corporate use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Clients often assume that they “own” the pictures and are free to use them for any “corporate” purpose. High-end clients tend to have a good grasp of copyright and limited use.
Usage: Images are licensed for specified uses to illustrate Annual Reports, in-house magazines, corporate and marketing brochures and flyers, point-of-sale and below-the-line advertising materials, etc. The NUJ defines much of this work as “extended PR”. The corporate market can be considered an extension of the PR market, with the work not limited to specific events or campaigns, but not including above-the-line advertising. Images are not licensed for such advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

ADVERTISING

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not badly unbalanced. At the high end, few clients (usually advertising agencies working on behalf of the end client) commission work from relatively few highly-skilled specialists, usually via their agents. Suppliers overwhelmingly comprise well-established freelance professionals, microbusinesses or small businesses; clients range from SME’s through to multinational corporations, charities and public bodies.
The Commissioning process: advertising agencies and corporate marketing departments make direct contact with photographers (or more usually their agents) to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but usually a pictorial concept will have been developed by creative staff at the advertising agency. The shoot will be directed by the advertising agency’s Art Director and usually feature professional models, stylists, property managers and others, all of whom work under contract, usually to the photographer or his producer. Model- and property-releases are essential and used as standard. The production process tends to have high production values and as a consequence be costly. The imagery will be for the exclusive use of the end client.
The Valuation Process: fees negotiated directly between client and supplier. Fees are based on the commercial value of the image to the end client. “Market” day-rates are often used, but in the upper end of the market the Base Usage Rate system is prevalent and well-understood.
The Licensing Process: most clients have a good grasp of copyright. Photographers automatically retain copyright. Images are licensed for specific uses, in specific geographic territories, for a specific length of time. Extra uses are costed as additional percentages or multiples of the agreed Base Usage Rate for that image. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
Usage: Images are exclusively used to illustrate above-the-line advertising in newspapers and magazines, on posters, billboards, hoardings and in other media. Deliverables are usually digital media and represent Further Use.
• This market functions reasonably well according to orthodox free-market theory.

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

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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.)