Industry organisations release joint statement on digital economy bill

A number of organisations have joined forces and have released a statement about their position on the Digital Economy Bill (DEB). The organisations (and one company) are: 

• Association of Photographers  (AOP)
• British Association of Picture Libraries and Agencies  (BAPLA)
• Design and Artists Copyright Society  (DACS)
• National Union of Journalists  (NUJ)
• The Royal Photographic Society  (RPS)
• Getty Images

The Digital Economy Bill which was approved by the House of Lords in the UK last week has met resistance from a number of different organisations and movements. One of the main points of contention is the fact that internet connections where alledged illegal downloading of copyrighted content has taken place can be shut down. Others resiste the power big corporations in determining who’s infringing.

In this case the statement centers around clause 43 of the bill that focusses on Orphan works, extended collective licensing and the management of collection societies. We are publishing the unedited statement here:

 UK Photography industry unites to shape future regulations

A joint statement in response to the proposed Digital Economy Bill

Clause 43 of The Digital Economy Bill (originally clause 42) has been presented to the photography industry as a solution to many problems. It creates powers to regulate future management of Orphan Works, Extended Collective Licensing and the management of Collecting Societies.

We welcome the extensive debate on many aspects of The Digital Economy Bill that took place in the House of Lords. In particular on the question of Orphan Works, we believe the Government’s concessions on Clause 43 have considerably improved the legislation. We have been encouraged by the progress made on sanctions and penalties for deliberate or negligent misidentification, or for failing to comply with authorisation. We are pleased that Orphan Works have been defined more clearly on the face of the Bill. We also welcome the fact that the Government stated at Report Stage that if they find through the forthcoming consultation that certain types of works such as contemporary photography cannot be included in the Extended Collective Licensing framework without causing harm to rights holders, there will be flexibility to exclude them.

Despite this, content creators, rights holders and the imaging industry continue to have concerns about the practical implementation of the Bill’s intentions and also whether it will hinder, rather than enhance, the wider digital economy and the UK’s efforts to be a global leader in copyright and other intellectual property matters.

With this in mind, a number of leading industry bodies representing the vast majority of photographers, artists and photographic collections/agencies within the UK, and seeking the same key results from the Bill, have created a unique alliance. Our purpose is to ensure the entire visual creative industry is in a position to influence the definitive form of the Digital Economy Bill as it passes into law, and the Regulations which will follow. In drawing on our insights into customer preference, our extensive knowledge of industry, and our robust policy knowledge, we pledge to work collaboratively with the Government and regulatory agencies to secure a positive regulatory regime in implementing the objectives of the Bill.

In the spirit of this new alliance, we feel it critically important to jointly highlight the key areas of the Bill that we will be addressing:

1. Contracts: Effects on current and future contractual relationships between multiple stakeholders; effects on exclusivity of use.

We welcome assurances from the IPO that creators will be notified of any proposal for any particular Extended Collective Licensing scheme and could object to such a scheme being issued if that particular scheme threatened to pre‐empt exclusive licenses granted. We would welcome the opportunity to advise on any wording in the Statutory Instrument such that concerns of those involved with commissioned photography (photographers and clients) may be addressed, and that arrangements and contracts between photographers and their clients, models and agents may be honored.

2. Exceptions: Opt Out of Extended Collective Licensing schemes

We welcome the minister’s assurances on 8 February 2010, that that any creator would be able to opt out:

a) all their works; or

b) a class of work; or

c) particular, specified works.

This is the most vital feature of any extended collective licensing scheme, necessary to preserve the very basis on which copyright law is based, that of allowing the first owner of copyright to control the use and exploitation of the work.

3. Licensing: Non commercial use of Orphan Works (defining and limiting uses of Orphan Works to those acceptable to creators and rights holders); diligent searches; moral rights and accreditation; metadata protection.

Non commercial use of Orphan Works

Clause 43 would allow the Secretary of State to make regulations by Statutory Instrument to specifically allow the use of works whose creators cannot be identified.

However, some of the concepts involved in the use of photography are extremely complex such that that they would be unworkable unless confined to extremely limited non‐commercial permitted uses. Limitation to non‐commercial use would for all works, not just photography, limit the risk exposed to creators, users and Orphan Works registrars. Furthermore it would avoid the creation of a “copyists charter” involving the commercial abuse of orphan works for commercial gain. A clear definition of what constitutes a ‘non‐commercial’ use must be arrived at. This definition must protect the commercial interests and rights of visual artists. Furthermore, any legislation which facilitates the use of any orphan works must ensure that key information is supplied with the work when it is made publicly available. This will identify that:

i. it is an orphan, what diligent search has been undertaken and by whom

ii. under what circumstances permission to use this work has been granted and to whom.

Diligent Search: The question of what is would be an acceptable level of diligence in trying to identify a creator also needs to be addressed.

Moral Rights and Accreditation The Moral Rights of creators are enshrined as part of Article 6 (2) of the Berne Convention. Under initiatives to review copyright legislation within a digital economy, we feel that the current requirement to assert the moral right of attribution as a precondition for its existence under UK law [Section 78] must be addressed and the removal of such requirement be accelerated if use of works of unknown authorship is to be permitted. We support the position that has a profound interest in clear attribution, especially for news reporting. Notwithstanding, any changes should accommodate current practice in the commercial use of imagery (e.g. images used in advertising) where a credit is generally not applied for non‐editorial uses; and any changes should not remove an author’s freedom to contractually waive their moral rights should authors expressly choose not to be associated with their work.

Metadata Protection

We believe that the preservation of electronic identification information – metadata, is essential for any works recorded in an electronic form, in particular if such works are to be managed as an Orphan Work under an extended collective licensing scheme. Whilst there may be difficult technical issues to contend with, better protection of metadata will also help reduce the risk of images being turned into Orphans in the first place.

We intend to ensure that these concerns will be represented throughout the remaining passage of the Bill, and in the drafting of future Regulations. We will make additional representations in writing and in person to explore options to secure an equitable compromise that benefits all of the individuals and organisations concerned with Clause 43 of the Digital Economy Bill. We will work closely with the Intellectual Property Office,

in designing a regulatory regime that is practical and fair, and will continue to liaise with the parliamentarians who have raised the issue in the parliamentary debates and directly with Ministers.

We will also be conducting detailed industry wide research on the above points to ensure the Bill supports this economically and culturally significant industry.

We look forward to working with Government to shape future Regulations, creating a new framework that has been developed after the full and fair involvement of the people it most affects, in a manner that is right for our industry both in the UK and as it interacts at the European and world‐wide levels.

EDITOR’S NOTE: All relevant associations, bodies or companies sympathetic to this statement are welcome to join the signatory list. Please contact: Simon Cliffe or Linda Royles 020 7713 1780