The Digital Economy Bill : what's yours is ours

The end game is now in sight. The Digital Economy Bill is now expected to become law within the next 6 weeks. It introduces orphan works usage rights, which - unless amended, which HMG says it will not - will allow the commercial use of any photograph whose author cannot be identified through a suitably negligent search. That is potentially about 90% of the photos on the internet.

Copyright in photos is essentially going to cease to exist, since there is no ineradicable way of associating ownership details short of plastering your name right across the image. Photographer's organisations have pressed hard for mandatory attribution to deter orphans being manufactured. Early in the consultation process the IPO accepted the irresistible logic that it was completely unreasonable to permit orphan use without a balancing requirement to not orphan photos in the first place. However, the IPO recognised with dismay that this would mean "taking on Rupert" (Murdoch).

Publishers have a long history of opposing our moral rights. They were responsible for the feeble and unenforceable moral rights clauses in the 1988 Act. They want their branding, not ours, and they want maximum freedom to exploit our IP at minimum cost and inconvenience.

The IPO avoided confrontation with Murdoch, who does have something of a rep for being a vital friend in an election year. The Bill contains no deterrent to the creation of orphans, no penalties for anonymising your work, no requirement for bylines. It is a luncheon voucher for industry hungry for free and cheap content.

So Flickr, Google Images, personal websites, all of it will become commercial publishers' photolibrary. A fee will have to be deposited with a collecting society in case the owner spots the usage. The author who discovers his work has been used as an orphan can then make a claim and receive a percentage of the peanuts, after the collecting society has had its share, and the government its share.

This is perhaps a slight improvement over earlier proposals, whereby HMG egregiously planned to keep all the fees itself.

Essentially, if photos were cars, so long as the numberplate is missing (or you can get rid of it and claim it was), you'll be able to legally TWOC and use it on payment of a fee to the Government.

The quaint notion that the author alone has prime and inalienable rights over his/her own work, must be able to restrict usage, negotiate a fee, prevent usage they consider immoral or distasteful, or assert their moral right to attribution, is about to pass into history.

This is the biggest change in UK copyright law in 150 years. It also punches holes through the Berne agreement, international copyright law and TRIPS.

It most certainly is not an issue that affects only pro's, who for the most part are doomed anyway. Simple economics of media evolution are driving commercial users toward free or very cheap content, sourced from readers and users, microstock, hobbyists, and we suspect that Government is using orphan works legislation as a means to oil the wheels of Britain's publishing industry. Cultural freedom, the worthy concerns of museums and galleries, are just a Trojan horse. If they were not, none of this chicanery would be necessary, a simple extension to fair dealing would have solved the orphans problem.

So it is amateurs who should worry most. Pro's tend to be careful about asserting copyright and being easy to find, because it's their livelihood. Amateurs just don't want to know about this dull legal stuff or spend hours embedding IPTC, even if they know what it is. They want to concentrate on the enjoyable bits of shooting and sharing their work, often via free services and untraceable nicknames. If work gets published without payment, they tend to feel flattered rather than robbed anyway. If they can claim a few quid from a collecting society they'll be chuffed. It is their photographs that will become easy targets for orphan claims, relieving commercial publishers of the tedious necessity of needing to ask permission when they can't easily find the owner. But the fact remains that photographers will have been serially robbed with government connivance.

Back door man

Most of this state-sponsored thieves' charter isn't even going through Parliament as primary legislation. The Digital Economy bill Section 42 sections 16a, 16b, 16c enable ad hoc regulation by Mandelson's office without further legislation. None of that will ever be voted on.

In fact what an "orphan work" is remains undefined in the Bill. Simlarly, what precisely will comprise an "adequate search", what level of fee will be required, how the fee will be divided between the revenant author and the collecting society, who will benefit from unclaimed fees, who the extended licensing societies will be and what rules they will have to follow, are all unspecified and unknown to supporters and opponents alike. As far as orphans and photographers are concerned, this is a deliberate shell of a bill whose real payload will not be made apparent until it is too late to do anything about it.

Remarkably, even though it simply isn't possible for them to know what they were voting for, only a handful of Lib-Dem and Tory Lords expressed concern during Monday's Lords debate.

This covert approach to major legislation did not escape the attention of the Lords Select Committee on the Constution, who wrote to Mandelson in December :

"The Committee's view is that this is inappropriate, and that "orphan work" should be defined in the Bill. Likewise the following matters are left for you as Secretary of State and are not settled in the Bill: 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. The Committee notes that regulations made under this section are subject only to negative resolution procedure; and that the provisions contain no express duty on you as Secretary of State to consult appropriate stakeholders....it would greatly assist the Committee if you could explain why you consider it to be constitutionally appropriate for what appear to be such wide-ranging and open-ended rule-making powers to be conferred on you as Secretary of State."

Mandelson replied that the need for flexibility in specifying what comprises an adequate search makes this difficult. That what is an orphan work will change according to evolving methods of determining its status. (An astonishing concept borrowed perhaps from quantum mechanics). He gives no clues what an adequate search may comprise because that too is subject to change. Therefore we have no clue what an orphan work may be, but rest assured the law needs to change to address the dire handicap that orphans present to creativity. Who can argue with that? But he does at least promise yet more IPO public consultation. In over 3 years of consultation with photographers' representative bodies, Gowers, Lammy, the IPO have proved deaf as a post, so this is not reassuring.

Nor have the answers been any clearer regarding the EC Human Rights implications of disposing of some unknown person's copyright. "No Articles are engaged by the provision itself as the provision only contains a power and has no immediate substantive effect" is a truly audacious Houdini-ism. But anyhow, according to Mandelson ECHR allows him to do anything he likes with other peoples' copyright so long as it is in the public interest, and so long as people can opt out of the licensing arrangements he undertakes - which appears to mean they forfeit collecting society fees. Can they sue for infringement? Sorry, don't know, nobody knows

Even if he can't tell the public or Parliament what he's going to do or how any of it will impact on us, or how the sums work, or even how much money government will rake off the deal with collecting societies, or even exactly what "opt out" means, he is at least sure all of it will be in the public interest. Mandelson has a long, long list of informal soothing assurances to live up to, but once the law is passed they may well be worthless. There is little point is reserving to oneself unaccountable Godlike powers of unlimited "flexibility" if one does not intend to use them. In the public interest, of course. That's not defined either.

Whatever next

Now that their Lordships have nodded through this masterpiece of double-blind opacity, it will return to the House of Lords for the report stage on 1st March, with none of our elected representatives being any the wiser when they vote, but reliably following party lines. The Government is determined to see the Digital Economy Bill passed without further amendment before the May 6th election date. A cynic might think that, having watched the fate of successive US orphan rights Bills and the international uproar among visual creators, the UK Government has been very clever indeed at closing down debate and circumventing democracy. Nobody can argue with what is still secret. Genius.

The ICO code : put that camera away, my face is private

Not content with abrogating photographers' copyright, another part of Government is now going some way to ban photography altogether in public places, for data protection reasons. The Information Commissioner's Office (ICO) proposed new code for personal information online has "commonsense" new rules that in effect will prohibit photography in public places where anyone who's in the photograph might be unhappy about being photographed. A photo, taken in public, is now deemed private data, y'see.

CCTV, full body scans at airports, no problem, but if an ordinary person takes a photo, this Kafkasesque notion of privacy in public will apply. Unless it's on film. You'd probably be OK taking photos of someone committing a criminal offence too, as ICO thinks this shouldn't be private information.

Mindful of the damage this would do to tourism and how much it would piss off Joe Public to be told he can't use his cameraphone in the street to make humiliating snaps of his drunk mates for Facebook (and quite possibly subsequent orphan use by Rupert Murdoch), ICO have decided that this lunacy shall only apply to pro photographers, a small enough constituency to castrate with impunity.

Of course ICO thinks all pro photography is deeply unpopular paparazzi harassment of our beloved celebrities so it is acting in a most principled manner for, you guessed, the public interest. Minor considerations like journalism, history, social documentary, freedom of expression - and even the simple logic that if you can eyeball it in public, it can't possibly be private - all are just collateral damage. At a stroke, ICO is redefining allowable photography to exclude all that contentious street stuff that has made the record of the last 150 years so insightful. Consensual falsehoods, celebrity promotion, ridiculous propaganda, marketing nonsense will all be fine, however.

"Consultation" has, in the now time-honoured manner, met with stonewall indifference. As far as ICO are concerned, there is not a problem. It simply means pro photographers must not take any photo that anyone in the picture may object to. They don't have to actually object, the photographer has to guess whether they might and do the responsible thing.

Almost always that will mean putting the camera away and going home. In the most CCTV-monitored and nannied country in the world, once the bossed-about public gets the idea that they have a right to not be photographed in public places they wil point blank refuse, just to assert the one tiny freedom left to them. At last they will no longer have to imagine privacy rights they don't have. The prejudice and suspicion against anyone with a big camera will be officially sanctioned. Photographers will not only be potential paedophiles and terrorists, but identity-thieving personal data pirates too.

Of course, we already have police and PCSO's deploying S44 TA2000 for the purpose of interdicting photography in public places. That has admittedly been ruled illegal under ECHR by the European Court in Strasbourg, but HMG assure that is in the public interest too and police say it is a vital part of the fight against terrorism, so the law lives on.

All told, at this rate it will soon be easier to photograph in North Korea than UK.

[EDIT:

Just to be entirely clear, the above article deals with two separate issues emanating from two different government departments.

1. Digital Economy Bill

We urge you to write to your MP about the orphan licensing provisions of the Digital Economy Bill. Pressure on our elected representatives is now the only way to stop the Bill, and time is short.

It is better to write your own unique letter because MP's take less notice of organised campaigns than individual constituents, but if it helps a template letter is available here. Word (.doc), RTF (.rtf) and plain text (.txt) versions may be downloaded from the bottom of that page. Adapt it, change it, write something entirely different, but write!

If you can, don't just email. A proper letter on paper sent through the post, or even a fax will command a great deal more attention. Recorded delivery is best of all - they might think it's from the Fees Office ;-)

How to find your MP's name and contact details is described here.

2. ICO Personal Information Online consultation

In response to inquiries correctly noting that the ICO code does not explicitly mention photography please read the comment below : "ICO and Photography in Public places : a clarification"

The ICO consultation is ongoing and concludes on 5 March. Please email consultations@ico.gsi.gov.uk seeking urgent clarification regarding their interpretation of data protection law regarding photography in public places.

- last edited 19 Feb 2010]