Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by British Association of Picture Libraries


  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.


  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.


  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.


  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.


  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.


  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.


  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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