Owning your own work, and the right to object to its use without your permission
As an independent photographer, writer or artist, if you create a work, you automatically own it and it becomes your Intellectual Property. Your automatic ownership right is called ‘copyright’ – which is the right to authorise copying of your creation.
This right is yours alone, unless you’ve signed it away in writing. If someone wants to make use of your work (for something not allowed by a copyright exception) they have to contact you first for your permission, and that right not to have your work used is enshrined in international law by the Berne Convention.
People want to make money from your ‘goldmine of content’
The Cultural Heritage Sector (libraries, archives, museums, the BBC) claim to have a great number of ‘orphan works’ in their keeping, where they haven’t kept proper records of who the owner is, which they claim represents a ‘goldmine of content’ going to waste. They call this an ‘orphan work’ - a work which (as far as they are concerned) has become separate from its parent, even though you, its parent, might know perfectly well where that work is and what it’s being used for.
What do they want to do with them?
Because most of these ‘orphan works’ exist on traditional media they want to digitise them to make them ‘publicly accessible’ and fulfil their ‘public service remit’. They want to be able to make money (and allow their commercial partners to make money) from these ‘orphan works’. They’re ‘a goldmine of content’, remember?
Unfortunately for them they don’t yet have the right, because you, the creator, ‘have the exclusive right of authorizing the reproduction of these works, in any manner or form’ (Berne). So, they and their commercial partners have mounted an intensive lobbying campaign to convince governments worldwide that because they are the Cultural Heritage Sector, and therefore The Great And Good, that the ‘orphan works’ in their custody are somehow a ‘special case’.
The EU has fallen for this and has introduced an Orphan Works Directive allowing the Cultural Heritage Sector to use orphan works. The UK must implement the Directive within two years.
The UK wants to go much further
However, the UK wants to go even further than this and allow anyone to make commercial use of ‘orphan works’, not only libraries, museums and other cultural heritage institutions.
International law (the Berne Convention) only allows use without the copyright owner’s consent in very limited cases which don’t ‘conflict with normal exploitation of the work’, and don’t ‘unreasonably prejudice the legitimate interests of the author’. It is arguable whether the new EU Directive satisfies this test, but the UK wants completely to ignore international law, and go much further, by allowing commercial exploitation of orphan works by anyone at all.
How can the UK’s proposals possibly satisfy international law? The author might know perfectly well who he is, and where his work is, and be prepared to grant permission. Or not. That’s his right.
Preventing orphans happening
But how did those works become ‘orphaned’ in the first place? What happened to their ‘metadata’ containing their authors’ names and contact information? Why didn’t the institutions concerned keep proper records of ownership of copyright works in their custodianship?
Perhaps the ownership information wasn’t there to begin with, because it hadn’t been asserted. Remember moral rights? One of them is your right to be known as that work’s author. It’s not automatic: you have to assert it. Furthermore there are exceptions to these rights for newspapers, magazines, periodicals and encyclopaedias, and it’s been found that these exceptions, and lack of attribution, are a major reason why works become orphan.
Perhaps it was there and has been removed. Right now, organisations can strip out copyright license and contact information from digital photo files with virtual impunity in order to render a work an orphan. There is no automatic penalty that would discourage such behaviour, and by any moral standards there ought to be. The fact that there isn't is an outrage.
It’s like having a law making it legal simply to take and drive away cars with no number plates, without having a law against removing those number plates in the first place.
Killing the private sector for the sake of traditional institutions
This is just the tip of the iceberg, there are a whole load of other insurmountable problems with using ‘orphan’ photographs, which the government have decided to ignore.
The orphan works proposals are in effect a partial nationalisation of the private creative sector - a nationalisation of intellectual property rights where the government will be license the use of privately owned property without effective compensation for the intellectual property rights owner. The pricing of orphan works will be fixed by the state and will inevitably have a powerful effect on private sector prices for images. Orphan works will therefore in effect not only be a partial nationalisation of the creative sector, but also state fixing of private sector prices.
There is a way of enabling access to orphan works which we think would satisfy international law and not kill the creative private sector but the Government has ignored it because it wouldn’t allow the Cultural Heritage Sector or their private-sector buddies to make money from orphan works.
What should we do about it?
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 in return for conceding any use of any kind of our orphaned intellectual property, but the Government has given us none.
Therefore, we cannot accept even the most limited form of ‘orphan works’ scheme in the UK, such as the cultural-use-only scheme envisaged by the EU Directive, without first being granted automatic and inalienable moral rights (especially, the right to be credited as author), and without proper, enforceable penalties for those who deliberately strip our works of metadata and orphan them.
Doing what the Government proposes and going much further, allowing commercial exploitation of our work not only by the cultural heritage sector but by anyone at all, would be totally unacceptable even if moral rights and removal of metadata regimes were strengthened.
The Enterprise and Regulatory Reform Bill needs to have the orphan works provisions either stripped out of it - or modified so that they have the much more limited impact envisaged by the EU Directive.
Orphan Works - the problems
verb [ with obj. ]
take or seize (someone's property) with authority: the guards confiscated his camera | (as adj.confiscated) : confiscated equipment.
• appropriate (something, especially land) to the public treasury as a penalty.
the guards confiscated his camera: impound, seize, commandeer, requisition, appropriate, expropriate, take possession of, sequester, sequestrate, take away, take over, take, annex.