Written evidence submitted by Simon Brown

 

1. Summary

 

· As a creator, I seek the moral right of attribution, enforced with no exceptions

· I oppose commercial use of photographic Orphan Works

· I oppose Extended Collective Licensing of photographs

· I seek Government recognition of creators’ human and moral rights with respect to intellectual property

· I request that effective deterrents for theft of intellectual property enacted

· I support the creation of an Intellectual Property Ombudsman

· I ask that Intellectual Property contracts are subject to Unfair Contract Law

· I seek the removal of responsibility for copyright from the Intellectual Property Office

2. Introduction

 

I am a self employed photographer. I create intellectual property (photographs) and derive income by licensing the right to use images. Clients include newspapers, magazines and individual companies and individuals. Licensing the use of my intellectual property in international markets derives a good proportion of my income.

A submission was made to the Hargreaves commission, but the views expressed were – almost without exception – not considered or referred to in the report.

Two aspects of the report – the commercial use of Orphan Works and Extended Collective Licensing – will have a detrimental effect upon my business. The reasons are outlined below.

Furthermore, various governments and their representatives have consistently ignored the fact that there are inherent moral rights to my intellectual property. In spite of a change of government in the last elections the same policy has remained in place. If we look at the Digital Economy Bill and the removal of Clause 43 (Orphan Works and Extended Collective Licensing) in washup – thanks to Conservative pressure – the very same proposal has now been accepted following the Hargreaves review.

3. Objections to the Hargreaves Report

 

1. The moral rights of creators has been overlooked again. The proposal for Orphan Works (whereby the creator cannot be found) makes no recommendation for the mandatory right (this is a moral right) to a credit when the work is used. Without this protection, the orphan work conveyer belt will simply continue to run and add more content available for licensing. During the debate of the Digital Economy Bill, Viscount Bridgeman made the following observation in the House of Lords:-

"It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified."

Nothing has changed. Creators are facing exploitation of their works without their permission (see below) whilst enabling more orphans to join the pile

Creators seek the unwaivable, enforceable right of attribution with no exceptions.

2. The proposal of commercial use of Orphan Works and Extended Collective Licensing breaches my moral rights as the creator, as enshrined in Article 17.2 of the Charter of Fundamental Rights of the European Union, the Human Rights Act 1988 Schedule 1 Part II1, The Berne Treaty and TRIPS.

In summary, the creator and creator alone has the right to decide how their property is used, by whom, for how long, for what purpose and for how much.

There is no compelling case for an exception to the Human Rights Act 1988; the proliferation of cameras – and by that definition I include mobile phones – ensures the vast majority of the public are creators and therefore benefit from these rights.

Furthermore, the Fox vs BT judgement demonstrates that the courts are prepared to accept Human Rights arguments:-

"…I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners."

And finally, the Human Rights Act Section 6(1) states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

On this aspect I would like to suggest that the committee ask; Having been removed – and for good reasons - from the Digital Economy Act, why are Orphan Works and Extended Collective Licensing now back? Why is the Intellectual Property Office now proposing a breach of the Human Rights Act?2

3. Creators ask that Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977 be repealed . Contracts seeking ‘all rights’ to intellectual property are numerous and widespread. Bauer Media in the UK has frequently offered contracts that have been declared illegal in Germany where Bauer UK’s parent company resides. All we seek is a balance.

4. Creators ask that effective deterrents to infringement be enacted. Currently, when I find my work used without permission all I can charge is what I would have charged the infringer if they asked first. From an infringers perspective there is no incentiv e to ask; if we get away with theft, great! If we get caught, we only pay what we would have paid anyway.

5. I welcome a small claims court process to allow creators to seek redress when infringers refuse to settle claims. This is one aspect of the Hargreaves report I welcome, and is backed up by Lord Justice Sir Rupert Jackson's recommendations 3 .

6. An OFCOM style ombudsman, but not under the auspices of OFCOM. Since the appointment of Dame Lynne Brindley photographers have lost confidence as we find Brindley, or Ben White, her Head if Intellectual Property at the British Library at the very heart of the Orphan Works debate, but not for very negative reasons. This one example of why:-

‘ The proposal [Clause 43] was nearly... enacted as part of the Digital Economy Bill for orphan works. It's our view that that was and still remains fit for purpose and should be reintroduced to Parliament, hopefully as part of the Communications Bill planned by the Coalition Government .’ - Dame Lynne Brindley , Chief Executive, The British Library, speaking at the IP for Innovation and Growth event at the RSA, 2nd. March 2011 . Speech written by Ben White.

It is clear that those who continue to support Clause 43 do not understand why it was removed. For this point to be really understood I request the opportunity to present oral evidence.