United Kingdom photographers are up in arms over the latest action by their government to make it legal for consumers to use their images without their permission.
The
Enterprise and Regulatory Reform Act recently passed in the U.K. provides a way to legally use images found on the Internet when the copyright owner cannot be identified or contacted. Such images are known as “orphaned works.” It is not entirely clear, but the act may also make it possible to use images found in printed products if contact information for the owner cannot be easily found.
Suppose someone finds your image on the Internet and decides he wants to use it. Under the new law all he is required to do in order to legally use the image is be able to demonstrate that he has performed a “diligent search” to find the owner. What is a diligent search? That still hasn’t been defined. Will it be enough just to look at the “file info” box of the image file? Of course, we know the vast majority of images currently on the web have no information in the file info boxes. And, even when creators populate those boxes before uploading their images most social media sites strip the information.
An independent entity called the
Copyright Hub is scheduled to launch this summer and become a one-stop online space for consumers of content to obtain information about rights ownership and copyright licenses. The Hub will determine what qualifies as a sufficient search. If the image is deemed to be orphaned the potential user will be required to pay a “license fee,” established by the Copyright Hub, for rights to use the image. It theory the fee will be based on “market rates.” But, it is not clear whether the market rate will be based on the intended use of the image, a flat fee regardless of use or the lowest fee any user is willing to pay.
The Copyright Hub will be built and led by U.K. music, publishing, audio-visual and images industries. The initial twelve organizations providing services are: the BBC, the British Association of Picture Libraries and Agencies (BAPLA), Copyright Clearance Center (CCC), Copyright Licensing Agency (CLA), Federation of Commercial Audio-visual Libraries (FOCAL), Getty Images, the Newspaper Licensing Agency (NLA), Pearson, the Picture Licensing Universal System (PLUS), PPL and PRS for Music.
The Hub will be designed to act as a portal with intelligent connections to a wide range of websites, digital copyright exchanges and databases in the U.K. and globally. Its goal is to streamline copyright licensing by providing a marketplace for various rights without geographical limitations. Amongst its proposed features are ease of use and low transaction costs. While creators may have their names and contact information in various databases, it is not clear how an image that does not have a creator’s name attached to it will be identified as belonging to that creator.
There is a concern that the Hub may not be all that motivated to find creators, since it will earn revenue when the creator is not found. If a potential user comes to them looking for a creator’s name or contact information there may be an incentive to do a cursory search and then price the usage. This could particularly be a problem if the potential user comes from the United States or some other country and not the U.K. since the Copyright Hub envisions offering a global service.
The U.K. government has provided the Hub with seed funding of £150,000 (approximately $233,430). When the Hub concept was first being considered KPMG was asked to analyze what would be required to develop such an operation. The KPMG report suggested that it could take over two years to build the Copyright Hub and depending on functionality and funding available it could cost £10-20 million.
Presumably, if customers go to the Hub and a “diligent search” produces contact information for the creator the license would be negotiated in the normal manner by the creator. In those cases where the user pays a license fee to the Copyright Hub the rights holder may claim that money (minus some type of Hub service fee) at a later date, if he becomes aware of the use. Of course the amounts collected will probably be so small that it may be impractical for a rights holder to jump through all the administrative hoops required to prove ownership and collect the funds. One would expect that most of the money collected will never be claimed by any rights holder.
The Act also fails to prohibit sub-licensing, so someone else can grab the creator’s work for Hub fees and license the work themselves for higher fees or use it to generate advertising revenue. This gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny.
The government says the act makes "copyright licensing more efficient". Photographers and stock agencies have set up
http://www.stop43.org.uk and respond, “Yes, if by 'efficient' you mean no longer having to find, get permission from, and pay property owners before exploiting their property.“ Stop43 claims the legislation is, “premature, ill thought-out and constitutionally improper". There is also a question as to whether this new U.K. law is counter to the country’s obligations as a Berne Convention treaty signer.
Specifics of the legislation are still not known and expected to come later in the year, in the form of secondary legislation called a “statutory instrument.” The legalized copyright infringement schemes enabled under the ERR Act will not come into force until the regulations controlling them are enacted.
UK photographers place much of the blame for this act on Silicon Valley and U.S. business that lobbied hard for these changes.
For questions and answers about the Hub check out this
link.
For David Riecks explanation of Six Ways to Keep your Digital Images from Becoming "Orphan Works" check out
this story.
For a good series of questions and answers on this subject check out Andrew Orlowski's post
here.