Hargreaves Review of Intellectual Property

Written evidence submitted by Tim Platt

My name is Tim Platt. I have been a professional commercial photographer for over 20 years. I would like to make a few points about the importance of IP protection in my business.

I am extremely concerned about the effect that any dilution of Copyright Law will have on my business and on the creative industries in the UK.

I feel that Professor Hargreaves’ IP Review has missed some real opportunities to improve the current creeping war of attrition on creator’s rights that artists and creators are engaged in defending in an increasingly hostile commercial environment.

Artists rights have not been recognised as human rights by Hargreaves IP review. Both the UN and EU Human Rights act have declared that artists rights are also human rights.

Increasingly as a Photographer I am under pressure to waive my moral rights and/or Copyright or risk losing a contract. We do not work on a level playing field. Creators such as myself are often working alone and are in a weak position to defend our rights against aggressive Corporate rights grabs which are often formulated by a legal department who enjoy relative freedom to impose grossly unfair terms on their creative suppliers. For instance currently it is not unlawful to:

• require creators to waive their moral rights or risk losing a contract

• require creators to assign their copyright or lose a contract

• strip digital copyright data from creators work

• not credit them

I am also concerned that orphan works legislation may allow commercial use of images where the author cannot be found. When images are posted on the internet the author information (metadata) that photographers embed within the image is almost always removed. The fact is that most images on the internet are ‘orphans’ from the day they are published, in spite of the best efforts of the photographer.

For this reason it is essential that metadata ‘stripping’ becomes unlawful. This is something that could and should be legislated for.

A careless approach to Orphan Works legislation could create a situation where vast numbers of images will be available for commercial usage beyond the control of their creators. Clearly this will have a massive impact on the creative industries; why commission new images when there is a vast pool available to be used for free or for a token license fee payable not to the creator of the work, or anyone appearing in the photograph, but to a collection agency working on behalf of HMG?

There may be a case to permit Orphan Works to be used for cultural purposes, such as in libraries or museums, providing that a precise definition of cultural use can be defined and agreed.

I feel it is worth pointing out that tax revenue will fall if images are not paid for. Also the general public with its vast personal library on Facebook, Flickr etc. are also equally vulnerable. Imagine your teenage daughter, or her friends, ending up in an ad for a chatline or some other unsavoury activity after their 'orphaned' images were 'found' on some social networking site or similar. If a photo has no metadata embedded to enable the creator of that photo to be traced it could technically fall into a sea of ‘orphan’ photos which could in due course become fair game for anyone to use for any purpose.

As a creator I need to monetise my work in order to make a living, support my business and pay my taxes. It is absolutely vital to my business model that I retain the moral rights and copyright on my work as my income revenue derives almost entirely from the licensing of that work. In my case, and many other commercial photographers, this applies to the following three principle areas.

1. Commissions

Commercial commissions are negotiated on a usage basis and licensed accordingly. This model works both in my interests and those of my clients. On the one hand it allows me to negotiate a fair rate of remuneration for the proposed usage of my photography by a client – for instance usage in a small internal brochure will be charged at a lower rate than a multinational ad campaign would. On the other hand my clients can tailor the usage fee to reflect the appropriate level for their requirements – rather than pay over the odds for a lot of usage they may never need. This system remains flexible further down the line as it allows clients to pay for additional usage if, and only if, their usage requirements change. This is also an important revenue stream for me as a photographer and underlines the importance of retaining my copyright as it enables me to continue to monetise my work in the future.

2. Royalties

With reference to the last point above this is a key part of my business model. Fair and appropriate licenses for image usage are negotiated at the outset of every job. These licenses are based on three things; the purpose of the photography, the territory or territories that the work will be used in and the duration of said usage. In many cases the original terms of the license will suffice for a client, but quite often a marketing strategy will change and adapt and if the photography is proving successful for a client they may wish to expand or renew the usage license for an extended duration or a wider implementation. At this point they may wish to expand the terms of the existing usage agreement and it is a point of principle that an additional fee will become payable to reflect this additional usage. The key point is that as owner of the copyright in my work I am able to both protect my interests and provide a fair and commensurate pricing policy for my clients. I am also able to protect them from 3rd party infringement of the work that they have paid for because I can exercise and enforce my legal ownership in cases of copyright infringement.


3. Picture Library sales

A significant proportion of my income is derived from picture library sales. In this model I retain copyright on all the work I place with a picture library. This work is not commissioned and all the production costs are paid for by me. In other words, it is personal, self motivated work. I contract an independent library to syndicate my work to 3rd parties. All of this income is derived from a licensing model. The library will determine the usage proposed by the client and will license the photography accordingly based on the scale of the proposed usage. This revenue is then divided between the library and myself. Again it is essential that I retain the copyright in my work in order to protect it from being used unscrupulously and enable my appointed library, or agent, to represent me and negotiate fees on my behalf.

I hope this brief summary serves to illustrate how critically important the principle of copyright is for a professional commercial photographer. I have supported my family and paid my taxes for over twenty years through the fair and appropriate licensing of my work and it is essential that a robust copyright law remains in place to protect the thousands of creative professionals whose livelihoods depend on it, and in turn, whose work and output supports the wheels of commerce and industry throughout the world.

9 September 2011