Memorandum submitted by British Association
of Picture Libraries
THE UK PICTURE
LIBRARY INDUSTRY
The British Association of Picture Libraries
(BAPLA) thanks the CMS Committee for the opportunity to respond
to the inquiry "New Media and the Creative Industries".
BAPLA is the national trade association for
the creative industry concerned with the supply of images and
licensing of rights in those images. The UK has the largest concentration
of picture libraries in the world, and BAPLA represents over 450
organisations including sole traders, small businesses, museums,
galleries, and multinational corporations.
Our members are the directly appointed representatives
of many thousands of photographers and other creative artists.
Their clients are media and other creative industries, in the
UK and worldwide.
BAPLA serves its members by;
— enabling them to set and promote
standards;
— providing a forum for the exchange
of information, skills and advice; and
— acting as a representative collective
voice for the industry, notably in relation to developing UK and
EC rights legislation and licensing practice.
IMPACT UPON
THE PICTURE
LIBRARY INDUSTRY
OF DEVELOPMENTS
IN DIGITAL
MEDIA TECHNOLOGY
The picture library industry has been profoundly
affected by new media technology. Our members have made huge investments
in acquiring this technology and have rapidly developed highly
evolved practices in its application. Our primary marketplace
is now the Internet, where most of our client/supplier transactions
are initiated and fulfilled. Large, international corporate players
have entered the industry. With a spectacular series of mergers
and acquisitions, they have created strategically significant
aggregated collections and, in a very short space of time, changed
the character of the industry for suppliers and clients alike.
New business models have also emerged, in response to market demands,
including new ways of licensing images, such as open-ended "royalty-free"
licensing and the integration of packages of rights and content
into software applications, such as the controversial Adobe Bridge
project.
Others have been explored and rejected, for
example extending the scope of "collective" licensing
to cover the "blanket" use of stills images in the digital
environment.
The UK has an exceptionally vibrant picture
library industry, working in international markets which are now
increasingly aggressive. These conditions favour large corporate
players (the "supermarkets"), who are extremely successful
in profitably delivering high volume at relatively low prices.
The same conditions, however, threaten the great number of small,
highly specialised suppliers (the "delicatessens"),
who are able to deliver extremely high value but are finding it
increasingly difficult to charge accordingly. There is no easy
solution to this tension within our industry. If these specialist
businesses prove unsustainable, there are genuine concerns, not
only in terms of the potential loss of livelihood for those involved,
but also in terms of the potential loss of the significant cultural
value vested in these collections of images and the precious knowledge
associated with them.
BAPLA engages with these tensions in the industry,
to encourage diversity and depth within this marketplace, because
it is of value both to owners of rights in creative content as
well as to end-users of that content.
PROTECTING CREATORS
AGAINST UNAUTHORISED
REPRODUCTION AND
DISSEMINATION OF
CREATIVE CONTENT
Our industry exists on the premises that individual
creators have an interest in creating culturally and commercially
valuable work, because they have a monopoly on the reproduction
and dissemination of their work and can negotiate payment in exchange
for licensing that monopoly. Those who reproduce and disseminate
creative content without authorisation are stealing from such
creators.
New media technology enables reproduction and
dissemination of creative content with unprecedented ease and
shields the user from consideration of the possibility of infringing
others' rights, let alone any other aspects of the context and
consequences of their praxis. This is problematic.
Digital technology also provides some scope
for protecting against unauthorised use, by means of DRM systems,
and it is helpful that the law is moving to make it illegal to
interfere with DRM systems and the content-objects they protect.
However, unauthorised reproduction and dissemination of creative
content continues to happen on a huge scale and is estimated to
be costing our industry some millions of pounds in lost revenue
every year.
Our members are struggling to combat this theft,
on the one hand, and a combination of increasingly draconian rights
contracts with coercive negotiating practices from corporate clients,
on the other (regrettably, the practices of a number of government
departments fall into this category).
In principle, UK copyright and other IPR legislation
provides useful protection. However, availing oneself of this
protection, in the case of infringement, is problematic. It is
not a suitable means to pursue individuals responsible for illegal
file-sharing, since file-sharing is damaging in aggregate rather
than individually, and it is a precarious means to pursue corporate
infringement, due to the costs involved in exploring the frequently
complex legal technicalities and the David/Goliath mismatch of
individual creators against corporate giants.
Great opportunities are provided by the new
media, not least because they allow us the possibility of transcending
geography. One of the greatest issues regarding the licensing
of intellectual property rights in the new media age is that these
rights are defined in terms of geography—territory and jurisdiction.
The licensing industry has had to become increasingly reliant
on contract law, since the international community has not been
able to construct an effective rights regime for the Internet.
This strategy may enable larger businesses to
be effective in a global economy but, again, it does not address
the increasing vulnerability of the rights of individual creators.
Instead, it compounds matters, as the balance of power in the
negotiation of contractual relationships most frequently works
against the interests of individual creators and their representatives.
Contracts for the commissioning of new creative work now routinely
seek to acquire all rights in that work, without adequate compensation.
The rights, which these contracts seek to acquire, are frequently
irrelevant to the original purpose for which work is commissioned,
therefore unnecessarily restricting creators' rights to their
own work.
Protecting the rights of individual creators
and nurturing original talent is in the long-term interests of
a thriving creative economy. It is therefore disappointing that
the Office of Fair Trading resolutely refuses to move on these
unfair trading practices of large-scale buyers.
The challenges for the picture library industry,
posed by widespread unauthorised use of creative content, are
not due to the lack of a legal framework, they are due to the
costs and other difficulties in policing and enforcement. But
they also involve issues of communication, culture and praxis.
Our clients in education, publishing, broadcasting,
advertising, marketing and many other sectors, are looking for
opportunities to exploit their output in different ways on an
ever-increasing range of media platforms, in an ever-increasing
territory. With increasing media convergence, many of the existing
licensing models are becoming harder to apply without adaptation.
Our members are happy to explore these new models and fragmented
markets with their clients. They are extremely keen to adapt their
practices to new circumstances, but are consistently faced with
the problem that, among their clients, competence in new media
technologies is not matched by competence in issues surrounding
new media content, particularly rights and licensing issues, even
among recent graduates from the UK's top creative and media institutions
(one would hope that graduate estate agents would not be similarly
ignorant of UK property law—trespass, for instance).
The reality of "cut and paste" amateur
creative practice and the culture of file-sharing on the Internet
have made unwitting criminals out of normally law-abiding people.
Cumulatively, they have also done unwitting damage to the livelihood
of individual creators.
Major media corporations are now also exploiting
the naïveté of amateur creators by committing them
to relinquish their valuable rights and by making commercial use
of "user-generated content". This is very clearly unethical
and corporately irresponsible.
POSITIVE STEPS
In thinking about how to begin to address these
issues, some key features emerge. Although there is public sympathy
for the negative impact of this new reality on individual creators,
these individuals have no power/platform with which to garner
public sympathy and support, and promote change. On the other
hand, corporate rights-holders and rights-holders organisations
(who have at least some access to a wider platform) have been
unable to change the public perception of this theft of rights
as a "victimless crime".
Clearly, there is a difficulty in communicating
the issues. There is a tendency to treat intellectual property
rights solely as a professional/technical issue, but there is
no real chance of change unless we (collectively!) find a way
of demonstrating its relevance to ordinary people, and addressing
the practice of file-sharing, etc, as a cultural/social issue.
Following BAPLA's participation in discussion
of these issues at the DTI Creative Industries Forum on Piracy
and File-Sharing and other forums, it seems that a major strategic
partnership initiative is needed. BAPLA has constructed an outline
for such an initiative and presented it to the BBC.
The BBC has many interests in protecting rights
and a commitment to fair trading in rights. It sits in a unique
position, as a commissioner of creative work, a licensee of creative
works and as an owner/licensor of creative works, the most trusted
broadcaster and multi-platform information-provider, with a huge
international profile. It also has unrivalled experience and skill
in interpreting complex issues for public consumption. It is alone
in possessing the ability to undertake a comprehensive programme
of online, broadcast and publishing activities to interpret complex
issues, such as these, in a way which makes sense to ordinary
people, and which stands a chance of achieving real impact at
user and community level, providing leadership within the UK and
beyond.
A comprehensive campaign to raise awareness
on the issue of rights, at a variety of levels, and in a variety
of directions, would further not only the BBC's own considerable
interests, including current strategic initiatives "building
public value", "content supply" and "value
for money", but also UK Government's "citizenship",
"creative industries" and "knowledge economy"
objectives, as well as being of enormous benefit to the UK's creative
community.
We have also begun to build support for this
initiative, which the BBC is taking to its Board. It is to be
hoped that the BBC will grasp this massive opportunity and that
BBC Executives on the Editorial, Education and Corporate Affairs
sides will work together to spearhead a genuinely collaborative
initiative of this kind, in the aftermath of the Creative Economy
conference in October last year on behalf of the creative and
audiovisual industries in the UK.
REGULATORY ENVIRONMENT
FOR CREATIVE
CONTENT ON
NON-TRADITIONAL
MEDIA PLATFORMS
The current culture of the World Wide Web is
that the interests and freedom of the end-user are paramount.
It is hard to conceive of protecting "freedom" and "interests"
without some concept of "rights", and therefore of a
regulatory environment of some kind.
Each and every media platform, which we now
consider traditional, was, at some point, non-traditional. The
picture library industry has found it relatively easy to adapt
established models to new platforms and to apply the legislative
framework appropriately. There is little doubt that new media
platforms represent the future for the distribution of much creative
content and it is difficult, therefore, to see how the creative
industries could survive without a suitable regulatory environment.
This environment will need to evolve to the
new circumstances and it will be hard to conserve the current
delicate ecology of interests, but it would certainly be productive
to clarify the "fair use" provisions of the CDPA.
BALANCING THE
RIGHTS OF
CREATORS AND
THE EXPECTATIONS
OF CONSUMERS
Who creates the expectation of consumers?—In
discussion of consumer expectation, there is frequently an implicit
assumption that this expectation is to be met, without examining
how or why it has come about. This is in spite of what we know
about the sums of money that are invested, every day, in the deliberate
creation of expectation.
The Creative Archive is an interesting case
in point, and in relation to this project, it is worth asking
about how well founded the expectations of consumers might be,
in comparison to the expectations of creators.
The vision of the Creative Archive is a grand
and generous one. In order to facilitate the delivery of this
vision, BAPLA is keen to ensure that creators' expectations are
dealt with appropriately, in respect of the contracts they have
with the BBC and the rights they have in their own work. For this
reason, we are actively involved in the project, as part of the
Creative Archive Licence Group's advisory panel.
Creators have a well-founded expectation that
the integrity of their work will be respected and that their work
will not be subject to derogatory treatment. It is difficult to
see how the Creative Archive can deliver on this expectation,
since (on the BBC site) it invites end-users to "...Rip it;
Mix it...", which obscures fundamentally important issues
and creates an unrealistic consumer expectation. There are profound
ethical implications, for example, pertaining to the manipulation
of interviewees' contributions to documentary films, and to the
content and context of stills images.
Rights-holders' organisations, including BAPLA,
have already put a lot of effort into trying to address such important
issues, for the greater good rather than any immediately discernable
benefit to our members. The film and TV industries are considerably
behind the music industry and the stills images industry in respect
of the co-ordination and presentation of its resources, and in
addressing contemporary end-user practice. It is regrettable that
the partners in the Creative Archive project were tardy in involving
representatives from these industries, and in co-opting our expertise,
not least because this created a larger amount of unnecessary
friction. The delay has also meant that the Creative Archive has
invested in promoting unrealistic consumer expectation, which
it will subsequently need to redress.
The use of "cut and paste" has quickly
and firmly established itself as an important element in contemporary
creative practice. But, as a model for "creativity",
the quick montage techniques provided by digital technology stand
in marked contrast to the care, time, blood, sweat and tears which
go into the creation of original work, and for which there was
no alternative, in earlier times. It is important to find a way
for contemporary montagistes to enjoy and exploit the resources
laboriously created by others, but it is important also to do
so in a way which recognises the continued investment many of
the original creators have in their work, which funds and sustains
their own continued creativity.
There is a cultural as well as an economic ecology
at work here, and it is important that the Creative Archive should
therefore be seen as promoting a praxis, rather than simply offering
a resource for easy exploitation. It is interesting to see the
differing extent to which current project partners have embraced
this approach in the user-interfaces which invite people to engage
with the project online.
Great care needs to be taken over the creation
of customer expectation and there is good reason to hope that
the Creative Archive Licence Group, in consultation with rights-holders'
representatives, can change the direction of the Creative Archive,
to become part of a wider movement to develop the healthy praxis
required by the demands of good citizenship and the creative economy.
IN CONCLUSION
The UK picture library industry has embraced
the opportunities of digital media technology but is also suffering
as a result of the unauthorised reproduction and dissemination
of creative content enabled by this technology. The application
of a regulatory environment to new media platforms is an essential
element in realising opportunities, protecting investment and
addressing threats in the new media for the picture library industry.
BAPLA welcomes the elucidation of interests between creators,
other rights-holders and end-user/customers, towards mutual understanding
and realistic expectation, in particular the work of the Institute
for Public Policy Research, the Museums Copyright Group, and the
Creative Archive Licensing Group. We look forward to helping to
create a properly balanced clarification of the "fair use"
provisions of the CDPA. We also hope that the DCMS and DTI will
support the submission of the BBC's proposed rights awareness
project to its Board and, if it is approved, engage as a partner
in this initiative.
17 January 2006
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