Using Images Without Permission Becomes Legal In UK

Posted on 5/8/2013 by Jim Pickerell | Printable Version | Comments (3)

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.”

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Comments

Giancarlo Zuccotto Posted May 10, 2013
Dear Jim,

Your piece on the new Enterprise and Regulatory Reform Act 2013 (ERRA) is very interesting, but perhaps some of the conclusions you draw are premature. We spent a day with our lawyers going over the relevant part of ERRA, you may be interested to hear our conclusions.

We should remember that what ERRA does is add sections to the Copyright, Designs and Patents Act 1988. As far as photographs are concerned, nothing in CDPA has been removed. ERRA adds clauses to allow future regulations to be enacted – these regulations are not yet written so we don’t really know what they will say. ERRA provides for what they must say and for what they may say. Most importantly, for those of us continuing to lobby for the protection of rights, is Section 116D(5) – any such regulations must be laid before and approved by both Houses of Parliament before they become law.

What else MUST the regulations do?

They must allow that a work qualifies as an orphan after a “diligent search” for the owner has been made. English law is in the habit of being very pedantic with words – ‘diligent’ will mean something far more rigorous than simply looking at an IPTC header and running it through Google Images. The regulations could be strict enough that it makes sense for commercial companies to set up a diligent search service, much as a patent agent will do the ‘prior claims’ legwork for an inventor.

The regulations must provide licenses to have the same effect as if granted by the missing owner, nothing more, they may not give exclusive rights and they may not be granted to a person authorised to grant licences. Sorry, Jim, no content-scraping allowed!

In the provisions for extended collective licensing (the so-called ‘Instagram Act’), the regulations must specify the types of work to which the regulations apply and the acts that are permitted to be done. The regulations must provide for the copyright owner to be able to limit or exclude the grant of licences, so the owner can simply opt out of the process. The speed with which users of social networking sites discover changes with which they disagree and disseminate the way of opting out is well documented.

Finally, with respect to the central licensing body (the ‘Copyright Hub’), the regulations must provide that any royalties collected are subject to the deduction of administration costs, how long such royalties are kept and what happens to them after that – do they revert to the Crown as bona vacantia or do they go elsewhere? The regulations must also provide for what happens to already granted licences if the true owner turns up (orphans) or withdraws from collective licensing.

Everything else in the yet-unwritten regulations MAY be done, they are not a requirement of the ERRA.

As it stands, ERRA appears to us to enable more material to be monetised while providing statutory protection and a means for the owner to claim the income at a later date. Our focus is now on the regulations being drafted, to ensure that they meet the requirements of protection in ERRA while working fairly with the industry as a whole.

Gary Evans
Intellectual Property Manager
Science Photo Library

Jim Pickerell Posted May 10, 2013
Gary: Thanks for the information about the “statutory instrument” that still has to come outlining the regulations. I would hope that the regulations on the operations of the "Copyright Hub" are as tight as you suggest. I would also hope that the operating board of this organization will include some creators of copyrighted works, not just agents and publishers.

Helen Gilks Posted May 15, 2013
Dear Jim,

I have read your article on the Enterprise and Regulatory Reform Act with interest, but would like to add some comments from BAPLA (the British Association of Picture Libraries and Agencies) in support of those posted by Gary Evans of SPL, which hopefully will give your readers a more balanced view on this new UK legislation.

The first thing to state is that the detail of this new act is yet to be finalised, so to that extent your article is somewhat premature as well as on several points inaccurate. Much of what you state as ‘fact’ is yet to be finalised, and is currently being discussed in working groups where BAPLA has strong representation.

The most important point to make is that the role of the Copyright Hub is to direct people to those who can license content. It is not intended to take existing business from any sector by licensing content away from existing copyright holders and their representatives. It will also direct users to resources that help them identify content, and as such will hopefully become specified as part of diligent search when secondary legislation is passed. Also, importantly, the Copyright Hub is intended to be voluntary, opt-in and non-exclusive.

BAPLA represents more than 200 UK photo agencies and picture libraries and has worked very pro-actively on behalf of picture libraries and the photographers whom they represent to influence this important legislation. We have worked tirelessly, both in the lobbying stage and through consultation with the UK Intellectual Property Office, to maintain the position of sign-posting, not licensing via the Hub, and also to support the development of resources which can be linked to the Hub to help with the identification of Orphan Works. To date, this work appears to have been successful, but there is still a long way to go. BAPLA will continue to work on the Hub for the benefit of the image sector, not only to defend its rights but also to build new opportunities for the future where they are appropriate to our sector.

To address some specific points:

"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."

This is not true – it was actually conceived as a way for cultural heritage institutions to make use of their archive of analogue content after a thorough diligent search (covering an extensive variety of sources) for each work and approved by a government-appointed body.

"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…Its goal is to streamline copyright licensing by providing a marketplace for various rights without geographical limitations."

This 'entity' is a body of UK-based organisations covering a wide range from the creative industries brought together by Sir Richard Hooper, with a remit of discoverability for copyright works and those authorised to license such works in the UK. At this point its scope is a national service, as copyright is currently limited to territorial borders.

"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."

We have had UK Government assurances that the ERRA does not permit sub-licensing.

You can find more detailed information regarding the ERR Act on the BAPLA website here: http://www.bapla.org.uk/index.php?option=com_content&task=view&id=46&Itemid=89&favm=4864&stype=

I hope this helps to allay some of the fears that have been spread in the media and photographic community with regard to this new legislation. Its exact impact will not be known until the detail of the Act is written and the Copyright Hub is in place. BAPLA will continue to be closely involved in that process.

Tim Harris, Nature Picture Library,
Vicechairman, British Association of Picture Libraries and Agencies

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