PLEASE LINK TO, COPY, ADAPT, DISTRIBUTE THIS DOCUMENT FREELY AS YOU SEE FIT. WHAT IS IMPORTANT IS THAT YOU WRITE TO YOUR MP ABOUT THE DIGITAL ECONOMY BILL TO EXPRESS CONCERNS YOU MAY HAVE. PLEASE DON'T LEAVE IT TO 'SOMEONE ELSE' OR TRUST IT WILL ALL WORK OUT FINE. EVERY INDICATION IS THAT NO REVISION WILL BE MADE AND THE BILL WILL PASS. THERE IS A POSSIBILITY THAT PHOTOGRAPHS WILL BE REMOVED FROM THE SCOPE OF LICENSING. THIS IS NOT GOOD ENOUGH, ANY SECRETARY OF STATE WILL BE ABLE TO REVERSE THE EXCEPTION AT ANY TIME WITHOUT PARLIAMENTARY DEBATE.

The Digital Economy Bill

Dear ----- MP,

* The Digital Economy Bill, as currently drafted, is a "shell" that includes powers to create substantial secondary regulation but leaves them undefined. Instead, Section 42, clauses 16a, 16b, 16c devolve all detail regarding these matters to regulations yet to be devised by the Secretary of State for Business, Lord Peter Mandelson, without recourse to Parliamentary debate on their contents or consequences. This is undemocratic and unconstitutional.

* The Bill introduces important new concepts such as "orphan works", "commercial use" and "adequate search" while leaving them undefined and precluding Parliamentary discussion of their definitions.

* The Bill proposes that "commercial use" can be made of an "orphan work" if an "adequate search" has failed to establish the identity of its author. Royalties for such use are to be paid to a "collecting society" for disbursement, with a proportion being retained by HMG.

* The treatment of royalties, the deduction of administrative costs, the period for which sums must be held for the copyright owner, and the subsequent treatment of those sums are left undefined in the Bill.

* The Bill contains no mechanism by which to irrevocably establish copyright in a work via mandatory attribution; to prevent the deliberate orphaning of copyright work; and no sanctions against those who so do. In conjunction with the Bill's provision for "commercial use" of "orphan works", this omission is iniquitous.

* This Bill is the biggest change in UK copyright law in 150 years. It also punches holes through the Berne agreement, international copyright law and TRIPS [the trade-related aspects of intellectual property rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994], to all of which HMG is signatory.

* The EC Human Rights implications of disposing of an unknown author's copyright as a result of the "commercial use" of an "orphan work" have not been made clear. The Secretary of State's view is that "no Articles are engaged by the provision itself as the provision only contains a power and has no immediate substantive effect". Of course not; as currently drafted the Bill is a shell, conferring upon the Secretary of State powers to later create secondary regulation that does breach Articles. These regulations will be outwith the influence of Parliament. Therefore, the Bill as currently constituted is potentially in breach of EC Human Rights legislation.

Please let me illustrate some possible consequences of this Bill, if it becomes law:

* The DEB as it stands would allow an 'orphaned' portrait I shoot of a black businessman to be licenced by a racist political party. A family portrait could easily end up being licenced as an 'orphan' for use that the subject finds embarrassing and inappropriate. There are many such potential problem publications that I as the author can, as things are now, control. The provisions within the Bill will prevent me from exercising my authorial right to demand that my image is not so used and I will have no way to prevent it.

* For professionals the situation is more serious than annoyance or embarassment. Licence contracts agreeing exclusivity with clients, or model release contracts restricting usage will be breached should the work become orphaned and licensed by ECS. The photographer will be unable to guarantee any given photograph will not become orphaned in future, so will be unable to meet these commonplace commercial requirements. S/He may be liable for damages on existing contracts that rely on the copyright holder's exclusive control.

Any of these examples may occur if this Bill as it stands becomes law. In none of the above examples will you have any recourse to legal sanction.

As a professional photographer, this Bill as it stands is entirely unacceptable to me. I wish to see the following changes made:

* Clear and unequivocal definitions added of the concepts and terms "orphan works", "commercial use" and "adequate search";

* Mandatory attribution of authorship by way of automatic assertion of all four Author's Moral Rights as defined by the Designs, Patents and Copyright Act 1988;

* Suitable changes to Fair Dealing rules under current legislation such that cultural, as opposed to commercial or political, use may be made of works in copyright whose authors are unknown, to satisfy the reasonable requirements of cultural institutions and organisations operating to the clear benefit of the public at large;

* The addition of a proper mechanism to deter the appropriation of intellectual property by the deliberate orphaning of a work and a proper system of sanctions and punishments for such actions.

I would like to ask you to do the following:

* State your willingness and intention to oppose the Bill in its current form;

* Make plain your agreement with the points required to be changed or included;

* Forward this letter, with your agreement and approval of its contents, to [the Secretary of State for Business Lord Mandelson] or [your Party's Shadow Secretary of State for Business], and your Party's official spokesman on matters concerning the Digital Economy Bill and let me know that you have done so.

Yours truly