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






  • 1. Is there evidence from other national frameworks to suggest how the UK (and EU) copyright systems could better support innovation? e.g. comparisons with the USA’s system (including "fair use") along with other jurisdictions in Asia and Europe.

    We are wary of the hurrah word "innovation" when it is used to justify the weakening or abandonment of rights, customs, procedures and legal protections necessary to support existing, valid, viable business models. Do not forget that most "innovations" fail commercially - the Millennial DotCom Bubble was all highly innovative - and that today's successful business models are yesterday's innovations.

    We are especially wary when rectification of the anomalies in current legislation would strengthen current viable business models, leading to an increase in economic activity by those operating such business models, concomitant economic growth, and increased HM Government tax receipts.

    That said, we believe that innovation is the oxygen of a modern economy.

    Innovation is driven in the main by those with the skill, experience and expertise to innovate at the highest level. Research by psychologists has shown that on average it takes 10,000 hours of practice to become “expert”. This translates to 250 40-hour working weeks; equivalent to over five continuous years of full-time work, including public holidays. To achieve expertise as an amateur and putting in 10 hours per week in spare time, starting at age 20 one can hope to achieve expertise at age 39. Some fields take less time, others rather more: whereas most classical musicians acquire virtuoso technique by their early twenties, it is generally agreed that few achieve interpretative maturity, and their highest artistic expression, before middle age.

    It follows that to achieve such levels of expertise, professionals must be able to support themselves by their work - the creation of Intellectual Property. Philosophers and economists from Adam Smith to Friedrich Hayek agree that a properly functioning market depends upon strong, enforceable property rights.

    Freelance professional photographers are freelance creators and rights holders of Intellectual Property and rely on income from photographic commissions and from the licensing of our Intellectual Property to others for commercial use. Consequently we are entirely dependent upon our property rights in copyright law, and on our ability to enforce those rights in practice. Furthermore, our property rights can only properly be enforced by the mandatory, automatic assertion of our Moral Rights, and in particular the right to be identified as the creator or author, without exception. This is not presently the case in UK law.

    For these reasons we require the establishment in UK law of the automatic, inalienable and unwaivable Moral Rights of the creator as civil rights as they are in all other EU countries except for Ireland and The Netherlands, and Fair Contract Law on the German model which has already been proven effective in practice, as the recent legal action in Germany against Heinrich Bauer Verlag has shown.

    This is required to prevent the existing wholesale and deliberate theft for commercial use of copyrighted images by those who know that should they ever be discovered and brought before a patent court, they will only be required to pay a fee equivalent to the original purchase price of the appropriate license to use. Such a situation would never be tolerated for shoplifters in the retail sector. Theft of an image from a creator is no less a crime that the theft of food from a supermarket or petrol from a forecourt.

    In short:

    We believe that the provision in UK law of

    • the automatic, inalienable and unwaivable Moral Rights of the creator as civil rights
    • Fair Contract Law on the German model applied to Intellectual Property and an Intellectual Property Ombudsman be appointed to arbitrate in matters of contractual dispute, market distortion and market failure; and
    • a low-cost, simple and straightforward system established by statute by which claims by rights holders against rights infringers can be made and damages awarded in sums significantly greater than a normal licence fee would have been, to make the pursuit of claims for infringements worthwhile and deter infringers
    - will enable creators and rights-holders of all kinds to better control the use of their Intellectual Property, to increase the economic benefit they gain from it, to be more confident that creating our Intellectual Property is worth the cost, effort and risk, and thereby act as an incentive to innovation.

    e.g. comparisons with the USA’s system (including "fair use") along with other jurisdictions in Asia and Europe.

    "When Cameron launched the review, he said Google wouldn't have set up in the UK. It's true. Larry has said it publicly a number of times. Their view is that when you look at fair use it's relatively straightforward to assess if something is going to be legal. The law is not clear in the UK," - Sarah Hunter, Google's Head of UK Public Policy, speaking at the IP for Innovation and Growth Event at the RSA on March 2nd 2011.

    On the contrary.

    In the UK we have the concept of "Fair Dealing" which is precisely specified in the Copyright, Designs and Patents Act 1988. In contrast the American doctrine of "Fair Use" has been described thus by Stanford University:

    "Because there is a sizeable grey area in which fair use may or may not apply, there is never a guarantee that your use will qualify as a fair use. The fair use doctrine has been described as a murky concept in which it is often difficult to separate the lawful from the unlawful.''


    "There are far more copyright lawsuits in the US than in the UK." - Henry Lydiate, Appropriate Art and Fair Uses.

    "The average US copyright case costs $1m in legal fees." Alison Wenham, chairman and chief executive, Association of Independent Music, speaking at the IP for Innovation and Growth Event at the RSA on March 2nd 2011.

    "Fighting the Google Book Settlement cost the American publishing industry $30m in legal fees". Simon Juden, head of public policy, Pearson Plc, speaking at the IP for Innovation and Growth Event at the RSA on March 2nd 2011.

    Some US IP lawyers insist that Google's original project scanning in-copyright books for search purposes was "Fair Use" and entirely legal; others take the opposite view. Where is the clarity in that, Ms. Hunter? Google's understanding of "Fair Use" has never been tested in law.

    Law that results in uncertainty and requires a plethora of court cases to test it is bad law. Bad, ambiguous law favours deep pockets and large corporations who can afford to litigate and take the financial risk of losing. Individual creators rarely have the resources to gamble. As far as photographs are concerned we believe that the "Fair Dealing" provisions in current UK law are adequate. We see no need to import into the UK the alien doctrine of "Fair Use", and certainly no need to apply it to photographs.

    "US law permits fair use for the purposes of criticism, comment, news reporting, teaching, scholarship or research. Federal courts are given statutory guidance to decide whether a use is fair, by applying the following considerations to the facts of each case: the purpose and character of the use, including whether it is commercial; the nature of the copyright work; the amount of the copyright work that has been used; and the effect of the use on the potential market for, or market value of, the copyright work." - Henry Lydiate, Appropriate Art and Fair Uses.

    Unlike most other media, a photograph cannot be quoted from. It is either used as a direct visual illustration of an idea or situation, or it is not. Photographers are happy to have their work used without license for the purpose of criticising it and are prepared to have their work freely displayed to the general public for its Cultural Use, when it is appropriate to do so, by the means detailed in our proposal.

    Beyond this we advocate the Gowers Review recommendation that the creation by their custodians, without the formal permission of their rights-holders, of digital facsimiles of in-copyright works on traditional media for the purposes of preservation, private study and private research should be made legal as a Permitted Act, not an exception to copyright.

    We have little doubt that other submissions to this Review, inspired by the Nordic system of compulsory collective licensing - the "Extended Collective Licensing" schemes that would have been authorised by the failed Clause 43 of the Digital Economy Bill - will once again call for their introduction into the UK IP framework.

    Stop43 have good reason to believe that amongst others:
    • The BBC, Channel 4 and other broadcasters want compulsory Extended Collective Licensing to enable them to clear rights in their archived works without the cost and annoyance of seeking out individual copyright holders;
    • Google wants compulsory Extended Collective Licensing to enable it to introduce a "Google Book Settlement"- type scheme in the UK; and
    • The British Library regards compulsory Extended Collective Licensing as a workable alternative to its heart's desire - an exception to copyright enabling it to supply digitised copies of any work they request to any academic in the UK, without the permission of or payment to rights-holders.
    Any proposal to use in-copyright work without its rights holder’s knowledge and consent must pass the Berne three-step test. The test is included in Article 13 of TRIPS. It reads:

    "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."

    There is some interpretation of the steps in this document.

    Step 1: "Exceptions to copyright in "certain special cases" is interpreted as for a specific purpose justified by clear reason of public policy or exceptional circumstances; the exceptions to copyright must be clearly defined and of narrow scope and reach."

    Step 2: "An exception to a right rises to the level of a conflict with a normal exploitation of the work if uses, that in principle are covered by the right but exempted by the exception, enter into economic competition with the ways in which right holders normally extract economic value from that right, and thereby deprive them of significant or tangible commercial gains."

    Extended Collective Licensing schemes devised to solve problems that can be solved by other means and that conflict with "a normal exploitation of the work" fail Step 2. Stop43 have proposed such other means. Elsewhere we detail the net reduction in tax take such schemes would bestow upon the Treasury.

    LINKS

    http://en.wikipedia.org/wiki/Anders_Ericsson
    http://en.wikipedia.org/wiki/Outliers_(book)
    http://en.wikipedia.org/wiki/Moral_rights_(copyright_law)
    http://en.wikipedia.org/wiki/Civil_rights
    http://www.iuscomp.org/gla/statutes/UrhG.htm
    http://www.londonfreelance.org/fl/1006grab.html?i=flindex&d=2010_06
    http://www.thersa.org/events/audio-and-past-events/2011/ip-for-innovation-and-growth
    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-d.html
    http://www.artquest.org.uk/artlaw/copyright/using-other-artists-work/appropriation-art-and-fair-uses.htm
    http://www.official-documents.gov.uk/document/other/0118404830/0118404830.pdf
    http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III
    http://www.kopinor.no/en/copyright/extended-collective-license/documents/The+Extended+Collective+License+as+Applied+in+the+Nordic+Countries.748.cms
    http://en.wikipedia.org/wiki/Berne_three-step_test
    http://www.wipo.int/edocs/mdocs/copyright/en/wipo_cr_mow_01/wipo_cr_mow_01_2.pdf
  • 2. Are markets involving copyright more competitive in any other countries, while still providing satisfactory incentives to creators and investors?

    Yes. While it is not perfect, in better protecting the rights of creators and rights-holders the German market is by definition more competitive than the UK as it better enables creators and rights-holders to enforce their rights and reduces the damaging, anticompetitive, monopsonistic domination by small numbers of large companies, organisations and combines of the cultural Intellectual Property markets in which creators operate, as the recent legal action in Germany against Heinrich Bauer Verlag has shown.

    LINKS

    http://www.londonfreelance.org/fl/1006grab.html?i=flindex&d=2010_06
  • 3. Is there evidence of how the UK copyright framework supports growth and innovation?
    • has it adapted to the economics and opportunities of the digital age?
    • does it meet the needs of digital industries e.g. software, games, internet services?
    • does it provide the right incentives for investors and creators?

    The UK copyright framework supports growth and innovation insofar as it recognises, protects and practically enforces copyright and Intellectual Property rights. At present it acts as a disincentive to the professional production of new photographic work, and thereby to investment in its creation.


    This statement is borne out by the progressive de-professionalisation of the photographic industry. Let us look at how this industry has changed in France in the past decade:

    According to the Report of the Senate as translated by CEPIC:

    • the value of royalties paid for photographs has reduced by 80% between 2005 and 2010;
    • Within the last 10 years 52% of "photographic businesses" - including photographers and photo studios - have disappeared;
    • Since 2001, there has been a 16% decrease in the numbers of staff photographers, and 30% of freelance photographers have quit;
    • Up to 90% of images published in the press do not mention the name of the author, but instead are marked "DR";
    • Only 3% to 20% of the "DR" images are actually truly "orphaned", i.e their author cannot be traced at all.
    "DR" (Droits réservés or Rights Reserved) is a French convention whereby photographs can be commercially published without their rights holders' knowledge or permission, so long as they are credited "DR".

    Whereas the situation in the UK differs somewhat from this, discussion on professional photographers' email lists of long standing with large memberships indicates that the UK position regarding declining numbers of professional photographers and their businesses is quite similar. See the results of the 2010 survey of the UK photographic industry carried out by the British Photographic Council.

    • has it adapted to the economics and opportunities of the digital age?
    No. The UK copyright framework requires amending to accommodate the realities of the nature of digital Intellectual Property, of how it is disseminated, and of how it is used.

    The UK copyright framework conflates the Moral Rights of authors as expressed by European droit d'Auteur doctrine with the Anglo-Saxon doctrine of tradable copyright, and in so doing frequently fails to protect authors' Moral Rights in any practical and enforceable way. For the Intellectual Property sector to thrive it is necessary to be able to trade economic rights whilst also, and at all times and in all circumstances, to be identified as the author of that Intellectual Property and to protect oneself from derogatory treatment and accusations of false authorship.

    Indeed, droit d'Auteur is a prerequisite for the proper trading of economic rights. How can I properly trade my property if I lack the right to assert my authorship and ownership of it in the first place? Under UK law at present that right is denied photographers supplying for publication in newspapers, magazines and some books, and is routinely flouted in other photographic markets.

    The advent of cheap digital devices and pervasive digital networks has revealed this historic conflation in UK copyright law, which previously was obscured by the impracticability or impossibility of making exact copies of Intellectual Property resident upon traditional media. With the exceptions of copying out the text of a book or the score of a musical composition, almost all copying processes based on traditional media involve adding new elements, distortion or generation loss of quality when compared to the original.

    This distortion and generation loss of quality allows copies to be distinguished from original masters, with the result that an original master is invariably more valuable than a copy. Moreover, most traditional media support "metadata" insofar as they can be signed and notes added detailing copyright and contact information in a form difficult to separate from the medium upon which the Intellectual Property resides.

    In contrast, digital Intellectual Property can be infinitely cloned with no distortion or generation loss whatsoever and the file formats in common use for digital images, when they support metadata, do so in a fragile form. Their metadata is easily stripped from them, potentially orphaning them. As a direct consequence of the deliberate design of the automated software that drives them, digital photographs submitted to their websites are anonymised daily in their hundreds by the BBC and in their thousands by Facebook, to name but two. This fact is trivial to demonstrate and takes but a matter of seconds to do so.

    Philosophically the Copyright, Designs and Patents Act 1988 and the Digital Economy Act 2010 are based upon the Gutenberg-era idea that it is both possible and practicable effectively to control the copying of digital Intellectual Property. The reality of the nature and characteristics of digital Intellectual Property, of digital devices and digital networks, and of the ease with which digital Intellectual Property can be originated, copied and propagated by such networks has rendered the Gutenberg model obsolete.

    In essence, "copyright" simply means that you cannot use my property without asking me first, paying me if I require it, and respecting my refusal if that is my answer. The digital age does not require more law to prevent copying. It requires the current law to be clarified, rationalised and simplified; for obsolete, inconsistent and irrational exceptions to be removed; and the UK copyright framework be recast on the basis not of preventing unauthorised copying but on the effective reassertion by rights-holders of their rights over such unauthorised copies. The digital age has created this problem: it is within the power of software, digital devices and digital networks to solve it, but that solution must be legislated for.

    • does it meet the needs of digital industries e.g. software, games, internet services?
    No. It fails properly to recognise the "virtual" nature of Intellectual Property (in that Intellectual Property exists independently from the medium upon which it resides, as the digital age has revealed) and to distinguish between the differences in character, value chain and usage of different forms of cultural digital Intellectual Property (by which we mean pictures, music, text, films and interactive media as distinct from what might be called "industrial digital Intellectual Property " such as inventions, formulae, processes, etc, covered by patent law).
    It certainly does not meet the needs of Photographers, for the following reasons:

    1. The Moral Right of Attribution for photographers is not inalienable, unwaivable and not automatic - it must be actively asserted;
    2. Sectors such as newspapers, magazines and some books are exempt from current Moral Rights provisions;
    3. Copyright law can be trumped by contract law, leaving photographers vulnerable to take-it-or-leave-it rights-grabbing contracts imposed by market-dominating commercial and public entities;
    4. Current law provides no cheap and easy way by which claims by rights holders against rights infringers can be made and damages awarded in sums significantly greater than a normal licence fee would have been, to make the pursuit of claims for infringements worthwhile and deter infringers.
    • does it provide the right incentives for investors and creators?
    No. As a consequence of

    1. the lack of inalienable, unwaivable and automatic Moral Rights under all circumstances;
    2. the ease which with digital Intellectual Property can be stolen, used and resold without permission or payment to the rights holder;
    3. the prevalence in some of the photographic markets of take-it-or-leave-it "rights-grabbing" contracts imposed by powerful users on freelance creators; and
    4. the lack of a practical means of enforcing copyright in the digital domain whereby creators and rights holders can reassert their rights and reestablish control over unauthorised or orphaned copies of their work;
    5. the current UK copyright framework acts as a disincentive to the professional production of new photographic work, and thereby to investment in its creation.

    LINKS

    http://www.senat.fr/rap/l10-052/l10-0520.html#toc0
    http://cepic.org/news/blog/2010/11/orphaned_pictures_law_progress
    http://www.british-photographic-council.org/file_download/5/bpc-2010surveyresults.pdf
  • 4. Is there evidence of areas where the UK copyright framework does not deliver the optimal outcomes? Do established rules or practices obstruct research and innovation?

    Yes. See the answer to Question 3.

    Most people, including many photographers, labour under the illusion that there is a single “photography market”. In fact there are at least six, all with widely differing customs and subcultures. It is evident that three of them are suboptimal and at least one of them has failed.

    They are discussed in detail here and can be summarised as follows:

    • Social and weddings (private commissions): subjects have rights of privacy; no right to commercially exploit images; market functions well.
    • Fine Art: no or limited right to commercially exploit images; market functions well.
    • Editorial: oligopsonistic market grossly unbalanced; requires copyright law reform to function satisfactorily; a failed market according to orthodox free-market theory.
    • Public Relations (PR): market poorly balanced; requires copyright law reform to function satisfactorily.
    • Corporate: market poorly balanced; requires copyright law reform to function satisfactorily.
    • Advertising: market reasonably well balanced and functions reasonably well but under threat from creeping disregard for copyright law.
    The UK copyright framework at present provides no cheap and easy way by which claims by rights holders against rights infringers can be made and damages awarded in sums significantly greater than a normal licence fee would have been, to make the pursuit of claims for infringements worthwhile and deter infringers. As a result, many current media business models are predicated upon systematic copyright infringement, as they can get away with using large numbers of third party images that go undiscovered by their creators and rights-holders. Then, even when such usage is discovered they only have to pay what they would have had to pay for that usage in the first place. Systematic infringement therefore saves them money and the result is a positive incentive for media companies to break the law.

    In all markets except for fine art and high-end advertising, client understanding of copyright concepts is poor or non-existent. The Editorial, PR and Corporate markets can only be made to operate satisfactorily for suppliers by rectification of the deficiencies in current UK copyright law, and inalienable and unwaivable Moral Rights for photographers, copyright and fair contract law on the German model extended to include Intellectual Property, and the introduction of an Intellectual Property Ombudsman to arbitrate in matters of contractual dispute, market distortion and market failure.

    LINKS

    http://en.wikipedia.org/wiki/Portrait_photography
    http://en.wikipedia.org/wiki/Wedding_photography
    http://en.wikipedia.org/wiki/Art_photography
    http://www.buzzle.com/articles/editorial-photography-tips.html
    http://en.wikipedia.org/wiki/Oligopsony
    http://en.wikipedia.org/wiki/Public_relations
    http://en.wikipedia.org/wiki/Photography#Commercial
    http://www.thelawyer.com/permission-before-you-publish/78733.article
    http://www.bjp-online.com/british-journal-of-photography/news/1931880/daily-mail-sued-copyright-infringement
    http://www.iuscomp.org/gla/statutes/UrhG.htm#I4
    http://www.iuscomp.org/gla/statutes/UrhG.htm#IV2
    http://www.iuscomp.org/gla/statutes/UrhG.htm
  • 5. Is there evidence to suggest that the current framework impacts the production and delivery of goods and services which consumers want?
    • e.g. derivative and transformative works
    • development of new goods and services

    Yes. Poor confidence on the part of Intellectual Property creators and rights holders that they will retain sufficient control of their Intellectual Property acts as a disincentive to their development of innovative goods and services and has a chilling effect on innovative new production.

    This is in contrast to aggregators of the Intellectual Property of others such as Google, Facebook and similar, who base their business models not on the provision of their own Intellectual Property, but on advertising revenue resulting from their provision of services based on the crowd-sourced or user-generated Intellectual Property of others that they do not own and that they have no rights to. Google's total advertising revenues were USD$28 billion in 2010, representing between 75% and 92% of the US online advertising market.

    LINKS

    http://www.british-photographic-council.org/file_download/5/bpc-2010surveyresults.pdf
    http://en.wikipedia.org/wiki/AdWords
    http://www.internetadsales.com/bing-doubles-us-market-share-in-paid-search-advertising

  • 6. What evidence is there that the necessity / complexity / cost of obtaining permissions from existing rights holders constrains economic growth?
    • in terms of licensing arrangements
    • in terms of transparency
    • the effect of collecting societies
    It is evident that the copyright system as structured at present contains a good deal of "friction" that impedes the easy licensing of work for commercial purposes and inclusion in derivative and transformative works. In practice it is often much more costly, time-consuming and difficult to obtain suitable licenses from corporate Intellectual Property rights-holders than from individuals or SME's:

    "I have been in negotiation with Warners Music, and the managers of XXXXX, to use a track on a piece of self promotion on my website. They will not grant a Creative Commons License, i.e. just for a credit on a 'not for sale piece'; in fact they stated nothing of theirs could be used without payment - and they pointed out they have a legal department that chases people who use their music without a license.

    It is a crap situation, I have a four minute piece that I cannot show on my website, so far Warner and the managers want £300 each, plus the PRS license but we still need creative sign off from the band and the authors - which has been ignored by Warners and the managers". -
    Photographer "P"
    • in terms of licensing arrangements

    It is always more costly in the short term to license or buy something than to steal it from its owner.

    Economic growth is obviously constrained by the theft of Intellectual Property for subsequent commercial use by the thief, which obviously benefits the thief but injures the rights-holder by depriving him of revenue for that use, deters him from further production or investment in his business, threatens his viability and deprives HMG of his corporation tax, income tax and VAT on the lost license.

    Stop43's proposal for a market-making statutory Intellectual Property registry would streamline the licensing system and, we believe, facilitate a huge increase in the proper licensing of Intellectual Property for such uses, thereby increasing overall economic activity, increasing the viability of Intellectual Property-based business models, increasing investment into those businesses and increasing HM Government's tax receipts.

    • in terms of transparency

    Three factors are primary:

    1. Lack of understanding of how photographs are commercially valued;
    2. Lack of market standardisation of usage types, terms and durations, and typical fee levels;
    3. In at least three of the photography markets - Editorial, Corporate and PR - pervasive ignorance and confusion on the part of commissioners and users creates a lack of understanding of exactly what they have commissioned or licensed and to which uses it can be put. SME commissioners and users tend to have little understanding and are often riddled with misapprehension and misconception, as is evidenced by discussions of photographic licensing and the consequences of breaches of copyright on the Federation of Small Business' discussion forum (membership required).

    Stop43's proposal for a market-making statutory Intellectual Property registry, in the form in which we propose it, would remove a great deal of misunderstanding from the system and facilitate a huge increase in standardisation and transparency by enabling creators and rights holders to negotiate equitable licensing agreements with prospective users by way of impartial template-based advice, agreements and facilities.

    This is not to say that our proposed scheme will somehow set "market rates". Photographs must continue to be licensed based on an assessment of their economic value to the licensee, derived from the photograph's rarity or uniqueness, production values, suitability for purpose, the number and scope of uses to which it is to be put by the licensee, whether or not the licensee acquires exclusive rights to the work for those uses, and the residual uses left to the photographer to further exploit in order to maximise his return on investment in creating the photograph, his income from it, and HMG's tax receipts consequent from the economic exploitation of that work. Getty Images, Corbis Images, Alamy and the Base Usage Rate system (1), (2), all use this valuation method.

    This is a normal and proper way for Intellectual Property to be commercially valued: reference the software and pharmaceutical industries.

    Getty Images, Corbis Images, Alamy and iStockphoto's online price calculators introduce transparency and standardisation to the market. For new commissions and the use of stock photographs from individual photographers the Base Usage Rate system, NUJ Fees Guide and guidance from professional associations such as The Association of Photographers and Editorial Photographers UK are helpful. Many but not all photographers are aware of these references; few commissioners or potential users appear to be.

    • the effect of collecting societies

    Historically, collecting societies have been necessary to remove "friction" from the licensing system and provide a means of licensing works, and distributing revenue from such licensing back to the rights holders, in those situations in which primary license agreements between rights-holders and users have been impractical. An excellent example of the continued requirement for such an arrangement is the Photocopying License provided by The Design and Artists Copyright Society (DACS) on behalf of photographs and illustrators, with aggregated fees being disbursed to members.

    Unfortunately collecting societies have been criticised for being bureaucratic, inefficient, self-serving, opaque, costly and partial.

    Stop43 maintains that the growth of digital networks has reduced the number of licensing situations requiring the intercession of collection societies and other intermediaries. In contrast we cite the successful operations of online entities such as eBay and Photoshelter that provide a digital infrastructure which facilitates direct transaction between buyer and seller, supported a commission on successfully concluded transactions, or subscription. Stop43's proposed market-making Intellectual Property registry scheme is founded upon such a model.

    In short, Stop43 believes that the Internet and digital networking reduces the requirement for the intercession of collecting societies in IP licensing. It certainly does not increase it.

    LINKS

    http://www.gettyimages.co.uk/
    http://www.corbisimages.com/
    http://www.alamy.com/
    http://www.istockphoto.com/
    http://home.the-aop.org/plugins/p13_download_manager/getfile.php?categoryid=18&p13_sectionid=2&p13_fileid=7&p13_versionid=72
    http://www.ampimage.com/bur.htm
    http://www.londonfreelance.org/feesguide/index.php?section=Photography
    http://home.the-aop.org/
    http://www.epuk.org/
    http://www.fsb.org.uk/discuss/forum_posts.asp?TID=2650
    http://www.dacs.org.uk/index.php?m=2&s=2&c=12
    http://www.dacs.org.uk/
    http://www.ebay.co.uk/
    http://www.photoshelter.com/
  • 7. What non-legislative changes could improve practices around copyright to improve overall outcomes?
    • eg standard terms and guidance on what actions are permitted
    • agreed default permissions in some areas
    • non-legislative dispute resolution

    The fact of the current state of most photography markets is evidence of the failure consequent upon deficient and defective legislation. Moreover, the propagation of the "information wants to be free" meme by advocates of so-called "open rights" is likely progressively to worsen the situation, encouraging as it does the most gross and ignorant misapprehension of the purpose and operation of copyright and quite falsely asserting that copyright cannot practically be maintained in the Internet age.

    • eg standard terms and guidance on what actions are permitted
    • agreed default permissions in some areas
    • non-legislative dispute resolution


    Stop43 intends its proposed statutory market-making Intellectual Property registry scheme to address all of these subjects by providing these functions, free of charge, by default.

    LINKS

    http://www.uk-ipo.net/blog/2011/01/28/my_week_on_the_review/#comment-628
  • 8. Is there evidence of difficulties in obtaining financing relating to copyright?
    • compared to other digitally innovative markets (e.g. US, Israel)

    Individual Photographers rarely seek financing beyond bank loans or grants for the production of art works and captial investment in equipment. Banks are often reluctant to make loans available to Photographers, citing the poor state of most of the photographic markets as a consequence of poor protection of photographic Intellectual Property, the cost and difficulty of pursuing infringers, the decline in fees consequent upon market oligopsony and the evident de-professionalisation of photography in some of its markets.

    Moreover, UK banks tend to place a low value on creative Intellectual Property. Speaking at the IP for Innovation and Growth event at the RSA, Alison Wenham, chairman and chief executive, Association of Independent Music, said she'd once taken her company's music catalog to be valued by the City, who gave it a valuation of zero. American investors valued it at $35m.

    LINKS

    Download (PDF, 4.3Mb)
    http://en.wikipedia.org/wiki/Oligopsony
    http://www.thersa.org/events/audio-and-past-events/2011/ip-for-innovation-and-growth
  • 9. To what extent are the international rules around copyright more or less important than those in the UK? How should the UK approach this matter?
    • do international frameworks adapt effectively to support innovation?

    The Berne Convention and TRIPS remain paramount.

    The UK must grasp the nettle and recast its copyright, contract and competiton laws to strengthen the rights of Intellectual Property creators so that they can most appropriately take advantage of new developments in digital networking and Intellectual Property dissemination, innovate new business models based upon them, and thereby set an example to the rest of the World of how this problem should be resolved.


    do international frameworks adapt effectively to support innovation?

    The Berne 3-step test remains entirely relevant, fit for purpose and suitable for the digital age. In principle it is so well conceived and written that it requires no adaptation:

    "Simple, clear purpose and principles give rise to complex, intelligent behaviour. Complex rules and regulations give rise to simple, stupid behaviour." - Dee W. Hock, "The Sheep's Second Law of the Universe."

    LINKS

    http://www.wipo.int/treaties/en/ip/berne/
    http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
    http://en.wikipedia.org/wiki/Berne_three-step_test
    http://en.wikipedia.org/wiki/Dee_Hock