Extended Collective Licensing, as enabled by S43 116B of the Digital Economy Bill, is perhaps the least understood aspect of the legislation. ECL enables publishers to establish a collective licensing society comprising contributors who work with the publisher. Payments for usage will then be made to the society, at a rate agreed with the society, and disbursed to its membership.

At face value this sounds good for all concerned. Publishers are able to assume a blanket permission to reproduce work, and can avoid the administrative duty of having to contact individuals and negotiate terms. They merely make a fixed fee payment to the society. For photographers it obviates the need to negotiate and invoice usage. Money will just fall through the letterbox without any effort having to be made. What could be better than that?

A reality check is necessary. The publishing industry long ago abandoned any pretence at fair play. We already see this "creative industry" dictating contract terms, shaving invoices of legitimate expenses and imposing fees c/o self-billing. We know their infringement is systemic and a sound business calculation, deniably concealed by marking up published work "await invoice" in the hope the photographer will never find out, far less take the time and trouble to try and sue. We know they mass manufacture orphans then complain at the problems it causes them, whilst simultaneously arguing that attributing work to its authors would be costly and onerous.

If these people want ECL, you can be fairly sure it is because they see commercial advantage for themselves, and commercial disadvantage for the photographers who supply them.

The level of fee likely to be agreed between the ECS and the publisher cannot be separated from the operation of the photography market as a whole. Which is, for the avoidance of doubt, broken by oversupply, commoditisation and cynical jam-tomorrow strategies of all players including, often, photographers themselves.

ECL vs. agencies 

In the case of second and subsequent use, which is the intended application for ECL, ECL rates will necessarily be forced to compete against other supply channels that offer similar flexibility. Most publishers are nowadays signed up to photo agency feed subscriptions. These are loss-leader contracts designed to create lock-in and exclude competition from the supply chain, a business model that agencies find acceptable but which relies on destroying photographers' margins for their viability.

The nature of agency contracts with photographers is responsible. Typically agencies retain 60%-70% of the gross value of each image sale. Sales of nominal value of £1000 result in say £300 being paid to the photographer, and if that is 10 image sales the photographer will receive £30 per image. However agencies now insist that they have a free hand with marketing and pricing, including subscription deals. A deal that allows say 500 images a month to be used for a monthly fee of £1,000 still makes the agency the same amount as 10 sales would with very little increase in direct cost thanks to electronic distribution. But the return per image to the photographer is reduced dramatically to £300/500 = £0.67. This pricing is disastrous for photographers, but is what ECS will have to compete against.

Loss of exclusive control

As with any service or retail shop, photographers have always relied upon being able to bargain prices by witholding until an agreeable price is achieved. This equitable bargaining position will immediately be lost once a blanket authority to publish is in place. At present, single editorial use of most images online or in print, has a rough minimum baseline of £30-£65, reflected in the NUJ's fees guide. Although some photographers will undercut these rates or allow free usage in exchange for a credit, it is seldom feasible for professionals to accept lower amounts. This is of course inconvenient to publishers who would far prefer to have entirely predictable costs as close to zero as possible.

The unstated attraction of ECL for publishers is that pricing will have to compete with already ruinous "all you can eat" agency subscription rates, which may be one-tenth NUJ rates or less. The publisher will in fact be able to play the ECS proposition off against agency subscription to the disadvantage of both.

Although 116B allows individuals to opt-out of ECS, doing so will no doubt immediately relegate them to the status of a relatively expensive supplier who should be avoided, exactly the same fate as currently befalls anyone unwilling to work on their generally unfair rates and terms.

The hidden power of free

At the same time, publishers are increasingly unwilling to pay at all for photography, resorting to user donated images wherever possible. These are invariably the work of amateur enthusiasts and part-timers whose interest is seeing their work published rather than paying their origination costs or making a living.

It will be trivially easy, indeed mandatory under the DEB, for any ECS proposal to include amateur suppliers of crowdsourced content that is kept on file for reuse. In most case they will greatly outnumber pro's to ensure beer money licensing fees are welcomed with open arms rather than refused as untenable.

A leading lobbyist for ECL and also Orphan Works Licensing, is the BBC. Although the BBC does commission work from professionals, it has intensively sought free images from the public for many years. It is likely that the number of amateur suppliers outnumber professional photographers by 100:1 or more. The BBC also has existing agency subscription deals with Getty and others. A shrewd guess suggests it will refer to both when formulating what it regards as a fair market price just above £0. The democratic ECS formulation is wide open to manipulation where a majority of suppliers are content with receiving next to nothing for their work. The publisher will be able to virtually name their price unopposed by all but a small minority of pro's and stay well within the rules of 116B(3).

Google

It would be unimaginative to suppose that such arrangements will be limited to pseudo-cultural business empires such as the BBC. The Intellectual Property Office has said some 25 other organisations are interested in the implementation of ECL. It has not said whether they include magazine, newspaper and new media conglomerates, but the commercial publisher lobby has argued that existing licensing arrangements are an impediment for them, so draw your own conclusions.

The DEB has been largely shaped by the requirements of the publishing industry as one of what government regards as "Britain's creative industries". The competition for that industry is none other than Google, the free content 800lb gorilla, that manages to single-handedly absorb some 40% of web ad spend globally whilst leeching off the creative content of others.

In reality neither Google nor publishers are creative industries, they're just powerful middlemen aggregators interposed between creators and the public whose taste for "free" is driving the ad-funded model. Standing in their way are the inconvenient IP rights of individual creators and our unreasonable need to eat else stop creating anything. It is hard to avoid the conclusion that orphan licensing and extended collective licensing have mission-crept a long way from the dignified public-interest aims of museums and galleries. In the hands of Mandelson's Dept of Business they are our eviction notice from our own intellectual property.