Written evidence submitted by the Association of Photographers Limited (AOP)

The Association of Photographers Limited (AOP) is a not-for-profit professional trade association, founded in 1968. Its aims are to promote and protect the worth, credibility and standing of its members and to vigorously defend and lobby for the interests and rights of all photographers in the photographic profession.

With around 1,500 members, the AOP represents professional photographers, assistants, agents and students. Members have a wide client base, ranging from individual clients in the corporate sector to design groups, publishing houses, music publishers and advertising agencies. Their work is published worldwide in magazines, newspapers, books and advertising campaigns and many sell their images as Fine Art through galleries, both traditional spaces and online.

The AOP is a member of the British Copyright Council, British Photographic Council, Pyramide Europe (EEIG) and AOP members are represented by the Design and Artists Copyright Society (DACS) for collective licensing.

1. We welcome the Government’s commitment to providing a fast track small claims route for copyright infringement through the County Court system but with reservations on the proposed reform.

2. The proposed limited private copying exception makes sense for some areas of creativity but not all.

3. An exception for parody must also be limited.

4. We approve of the proposal that any Digital Copyright Exchange (DCE) would work as an independent marketplace but have reservations on the actual workings of such a register.

5. We are very concerned by the proposal that licensing of orphan works could extend to commercial uses

6. We are alarmed that the Government has made no mention of Moral Rights, which we believe are enshrined as Human Rights in the Universal Declaration of Human Rights (1948) and also in the International Covenant on Economic, Social & Cultural Rights (1966)

7. The lack of reform in contract law (The Unfair Contract Terms Act 1977), which has precedence over copyright law, is misguided

8. The burden of copyright education has incorrectly been left to creators and rights-holders

1. We welcome the Government’s commitment to providing a fast track small claims route for copyright infringement through the County Court system. We have lobbied over many years for this reform, and it was recognized as a necessity in the report made by Lord Justice Jackson in January 2010. However, we are concerned to see that the caveat of ‘value for money’ has now been attached to this. This crucial reform of the court system must be implemented as soon as possible and the current proposed ceiling of £5000 for claims should be raised to £10,000.

2. The proposed limited private copying exception makes sense and would legalise the actions of a huge sector of the population without affecting the revenues of those creators. However, this exception is not right for all areas, in particular, the visual arts sector. As stated in our reply to Hargreaves, visual arts creators will be greatly disadvantaged through a loss of revenue from sales of images through online galleries; and sales of prints from wedding and portrait sittings if it becomes legal to download images from the Internet for personal use. Following the Gowers’ Review it was recognized that visual works could be at risk from a private copying exception a fact we are concerned has been overlooked.

3. A carefully drafted exception for parody may be appropriate in some cases, but this must be done in such a way as to not prejudice the creators of the original work. This exception must also be limited to ensure all types of creators are protected. We note that the Government has said it will consult widely on this and we insist that all types of creator must be involved in the process.

4. We approve of the proposal that any Digital Copyright Exchange (DCE) would work as an independent marketplace where rights holders can set their own rates, and that participation should be free to both creators and users with open standards, so that access to such a database can be automated through software solutions. We agree that participation should be voluntary and therefore not in contravention of the Berne Convention. However we do have a great many concerns regarding any DCE, with respect to the actual formation, daily running, costs and international participation. We understand that a prototype may be introduced before the end of the year and look forward to participating in its formation.

5. We agree with and welcome the statement that any proposals for the use of orphan works (in essence, any copyrighted work for which the copyright owner cannot be contacted) should be subject to satisfactory safeguards to prevent unfair competition from any licensing of such orphans. We agree that any proposals for Extended Collective Licensing (ECL) should be adoptive rather than enforced on any sectors in the industry. We are very concerned by the proposal that licensing of orphan works could extend to commercial uses, something we, and many others, have been against from the start as it undermines the creators’ marketplace and makes a mockery of existing licensing arrangements. We have seen no published evidence to show that UK industries are disadvantaged through being unable to commercially exploit orphan works. We understand the need for cultural institutions to protect and display orphaned works for cultural purposes and, if cultural use is clearly defined, would have no problem with this type of use. We strongly suggest that any arguments presented for the loosening of intellectual property rights are presented by those corporations that seek to gain the most financially from such legislation. These arguments seek to erode creators’ rights, not strengthen them and as such, we oppose any move to seek to make commercial use from orphan works.

6. We are alarmed that the Government has made no mention of Moral Rights, which although outside the remit of Hargreaves’ review, are vital to the development of better IP legislation. It is nonsense to talk about licensing orphan works when we still do not have unwaivable Moral Rights - in particular, the right to be identified. To ignore the obvious need for the strengthening of existing moral rights to give creators an automatic, unwaivable right to a credit, before introducing a system to address orphan works, is extremely remiss at best. Given the number of creator-led submissions supporting the overhaul of this area, we are very disappointed that it has been ignored yet again. UK creators are at a disadvantage compared to all other EU countries, where moral rights are unwaivable and treated with respect and are in line with the Universal Declaration of Human Rights, Article 27, paragraph 2 which clearly states; "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." This is explicit. In addition the Covenant on Economic, Social & Cultural Rights states in Article 15, paragraph 1(c) that: "The States Parties to the present Covenant recognize the right of everyone - To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

7. The lack of reform in contract law, which has precedence over copyright law, is also remiss. As stated in Schedule 1, Clause 1 (c) of the Unfair Contract Terms Act 1977, any rights given under copyright law can be superceded by contract law, making any copyright reforms futile as large corporations will continue to include clauses in their commissioning contracts to over-ride them. The review stated "The Government should also legislate to ensure that these [exceptions] and other copyright exceptions are protected from override by contract." This does not go far enough - if current and new exceptions, which are mainly in favour of publishers, can be protected against contracts overriding them, then there is no reason why legislation cannot be reformed to ensure creators rights under copyright law are equally protected.

8. We are dismayed to see that the Government has not taken the opportunity to provide appropriate education and protection for consumers regarding enforcement, but has placed the burden of such activity on rights-holders and creators. Future creators, rights holders and commissioners need to be educated at an early age on the importance of copyright both in an economical light and a moral one enabling them to protect their work. Additionally, if private copying is to be allowed then it is imperative that a Government campaign is undertaken to educate the public on what can be legally done with copyright works.

In conclusion, we accept that there seem to be some areas that the Government wishes to address for the benefit of creators and welcome the opportunity to be involved in discussions around this but we are dismayed that the Government has seemingly missed an opportunity to really strengthen the creative industries in the UK and ensure their survival and future growth.

We note that the Government proposes to move forward on the basis of "open and transparent" evidence and are alarmed that whilst they acknowledge that SMEs find it very difficult to provide empirical evidence, there is little suggestion that other ways of engaging with those businesses will be sought. This consultation also asks for "new evidence", it was a difficult task to provide evidence for the original review and so, given the short time between this and the Hargreaves’ submission and the even shorter time lapse of the request and close of submissions, it has not been possible to provide new evidence to back up this submission. We hope that this fact will not prejudice the outcome of further discussion.

5 September 2011