Hargreaves Review of Intellectual Property

Written evidence submitted by Peter Wood

My objections to the proposals of the Hargreaves Review of Intellectual Property and the Government’s response to that Review.

1. Introduction:

· 1.1 I am concerned that the members of the Intellectual Property Review Committee Members do not at all understand the meanings of: 'Moral Rights', ''Copyright', 'Orphaned Works' ... and the concerns of creators about these subjects.

· 1.2 None of the 11 member MP's of the committee have expressed any political interest in or commitment to the arts, intellectual property law, copyright, orphan works, or the particular concerns of small creative or on-line businesses. So are they the right people to judge these proposals, on our behalf, in representation of creative businesses.

· 1.3 It is my opinion based on the results proposals, and the content therein, that many on the receiving end of this report, who will make decisions on my behalf, have no real appreciation or understanding of the effect these changes will have on both myself as an UK based aerial photographer, as well as the many other photographers, creative artists and producers of material - in our endeavors to make a living, particularly in the ever evolving digital era.

· 1.4 I consider that the proposals are unfair and will damage the already fragile business prospects for the UK's creative citizens and small businesses.

· 1.5 I believe that there should be MORE law on OUR side, not less, so that we as creators retain both copyright, so our works generate a livable income and not for others to steal our efforts.

· 1.6 Essentially the proposal is robbing Peter to pay Paul, where Peter is the creator. This is unjust and unfair.

2.0 My concerns with the Hargreaves Review of Copyright, can be summarised as follows:

2.1

a) The moral rights of authors are not automatically granted as in other EU countries.

b) Moral rights have still not been made unwaivable, as in other EU countries.

c) No sanctions/fines, are proposed for the removal of digital copyright information from digital works.

d) The review proposes allowing orphan works to be used for commercial purposes.

e) That remedies for unauthorised use, are restricted for those who have not registered their works.

f) Creators are not given a level playing field with industry.

g) 7 Artists rights have not been recognised as human rights by the IP review

h) There is already blatant IP infringement at the present time, which under these proposals, will only

increase, to the disadvantage to may creators.

3.0 My own business, Hawkeye Elevated Photography:

3.1 Hawkeye was established in 1996, as a sole trader, to provide both low level elevated mast photography & Video in addition to traditional aerial photography from aircraft, as a business based in SE England. Clients range from Large blue chip construction company's down to local small builders, private individuals, surveyors and solicitors.

3.2 I have invested a great deal of money, time and effort in both developing / using my apparatus, vehicles and cameras that I use to capture these photographic and video images.

3.3 My business also involves costs of chartering either an airplane or helicopter, taking aerial photographs either as commissions to companies or by direct selling to the public, via various both traditional means including the Internet.

3.4 The income I derive is to pay my household bills and to provide a living for both my family now and in my future retirement via means of me licensing my images.

3.5 As a construction and aerial photographer I must both sell my images for a fee to cover the above costs, as well as all the costs involved to actually conduct my business (incl. various Taxes), consequently, selling at a ‘nominal’ sum is not an option.

4.0 Factual Information

I (and many other creative artists) already spend a great deal of time tracking down images used without permission (i.e. stolen images). Much of this (often wasted) time tracing use of my images could be much reduced, by enforcing both existing and introducing further laws on OUR side, not less.

So that as creators, we retain both copyright, to generate a liveable income, so as to introduce a much more obvious deterrent that stops this theft, backed up with ways that make it much easier for us creators to obtain recompense for copyright infringement At present, too many people, whether individuals, corporate or local government are able to steal images from anyone. There’s a ‘can do, will do’ attitude to this blatant theft.

4.1.0 Illegal uses

4.1.1 Commercial financial exploitation of Orphan Works removes my human right to control my creative works

4.1.2 Commercial use of Orphan Works risks possible breaches between my clients and myself, as well as those third parties through whom, I redistribute their works under licence.

4.1.3 The restriction of court enforceable realistic punitive damages for copyright infringement impedes the profitability and growth of creative businesses.

5. 0 The moral rights of authors are not automatically granted, as in other EU countries.

5.1 It should not be necessary to assert your moral rights as at present under UK law, this should be an automatic right granted to all UK citizens.

6.0 Moral rights have still not been made unwaivable, as in other EU countries.

6.1 The right to be identified as the creator of a work should be absolute, the law should prohibit any person or organisation from requiring that the creator to waive their moral rights. It is illogical to bring forth legislation for the licensing of orphan works when the law as it stands has no provisions which will prevent or significantly reduce the creation of orphan works

7.0 No sanctions are proposed for the removal of digital copyright information from digital works.

7.1 At present it is necessary to show that removal of digital copyright information has been done with intent to infringe, before it can be recognised by the courts as an offense under current UK legislation.

Yet worldwide, every day, millions of digital works are having their digital copyright information stripped rendering these works as orphans, including even a well known international earth mapping company.

7.2 Other large companies do already purposely strip metadata (text based data about that image) from any images uploaded to their systems whether submitted legally or by others, illegally, which in turn creates orphaned images, some of which may be stolen images.

7.3 This is morally wrong, it is the equivalent of physically removing a signature from a painting, an act that all would agree was reprehensible. Yet Professor Hargreaves, knowing this, has recommended the commercial exploitation of orphan works. This will only make it more difficult than ever for creators to make a successful business when there is huge resource of orphan works to exploit, a situation which will only get worse as time passes.

8. The review proposes allowing orphan works to be used for commercial purposes.

8.1 There is no proven need for orphan works to be commercially exploited, and Professor Hargreaves said that copyright law should be evidence driven. There is no published evidence that shows that UK industries are disadvantaged through being unable to commercially exploit orphan works.

8.2 There is no doubt a desire with many sectors of the UK industry, such as publishing, to have commercial access to orphan works at a price and on terms below what the rightful owner would require. This is robbing Peter to pay , where Peter is the creator. This is unjust and unfair. 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.

9.0 That remedies for unauthorised use are restricted for those who have not registered their works.

9.1 Registering creative works at a national level is completely impractical in a global market. It will lead to anomalies of the type already exposed by the US system of copyright registration where a creators remedies for infringement are compromised if they have not registered that work in the USA.

9.2 If every country were to go down that road, as could happen, creators would be in an impossible situation, needing to register their work in every country, but unable to afford the time and expense of doing so. If registration has to come into the equation it should be a global system. Such a universal system already exists and is supported by the PLUS Coalition.

10.0 Creators are not given a level playing field with industry.

10.1 Industry at present can strip digital copyright data from creators work, not credit them, require creators to waive their moral rights or risk losing a contract, assign their copyright or lose a contract, all of which impose grossly unfair terms on the creator.

10.2 Artists rights have not been recognised as human rights by Hargreaves IP review.

10.3 Both the UN and EU Human Rights act have declared that artists rights are also human rights.

11.0 Recommendations to be considered by the committee:

11.1 Recommend to Government that stripping of copyright data (metadata) is illegal, as in the USA.

11.2 Recommend to Government that both ‘image harvesting’ (enticing image submissions to then be used or sold without payment to the ‘original’ copyright holder) and that ‘rights grabbing’ methods, terms and conditions used by many company’s to generate unethical income for their own greed, are made illegal.

12.0 The following information has been published by Stop43 on their campaign website -

12.1 United Nations Universal Declaration of Human Rights Article 27 (2) states:

a) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

b) 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.

13.0 Note also that a recent UK court ruling (20thC Fox vs 'Newsbin2') established that -

13.1

a) Copyrights are property rights protected by Article 1 of the First Protocol of the European Convention on Human Rights, as also expressed in Article 1 of the First Protocol of the Human Rights Act 1998;

b) Piracy of copyright work is a breach of the copyright holder's human rights;

c) he copyright holder is therefore entitled to legal redress;

d) because 'so far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights', legislation drafted and enacted subsequent to the enactment of the Human Rights Act 1998 must also be read and given effect in a way which is compatible with human rights.

14.0 Conclusion

14.1 The Hargreaves review is seriously flawed, in that it takes away any legal recourse that creative artists have against illegal theft of images, material or creations, due to not only existing illegal practices but the introduction of the badly thought out recommendations in the review will enhance more illegal practices.

14.2 Making it illegal to strip Metadata from imagery is the essence of IP copyright protection, and unless government properly considers and introduces ’just and fair’ laws to protect work of creative works, and to guarantee this protection, we will continue with the present totally unacceptable, immoral and illegal theft by the many ‘copyright infringers’, including several of the ‘stakeholders’ met during the preparation of this IP report.

20 September 2011