Written evidence submitted by Charlotte Davies

Summary of concerns:

· Introduction – IPP from a photographer's perspective

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

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

· The right to be identified as the creator of a work should be absolute

· It is imperative that there are disincentives to the stripping of identifying data attached to digital image files, making them 'orphans', and thus free for commercial exploitation.

· Registering creative works at a national level is completely impractical in a global market.

About Charlotte Davies

I am a professional photographer based in London, UK. I work in the commercial, editorial and fine art fields.

Introduction – IPP from a photographer's perspective

When I make something, it is mine. If I plant a seed in a field which I either own or rent, I water it, a plant grows, and I harvest that fruit, the fruit is mine because I worked to make it come into existence, using tools and resources which were originally mine. I can either eat the fruit, give it away, feed my family with it, or sell it to someone else. That way, my work sustains my ability to live and feed my family. I suggest that the above would generally be acknowledged as one description of how a person can create something, which is then recognized as his property. Simplistic, maybe, but nonetheless valid. I would also suggest that property rights are generally recognized, when applied to physical objects, be they inherited, created, bought or given.

The difficulty which one encounters when applying these rights to non-physical property, is that people often struggle to see the parallel case of ownership when there is no particular 'object' in question. In the case of my work, I am a photographer, so the 'objects' I create can exist in varying forms, all of which are, in the 21st century, infinitely replicable. Using the above analogy, I take an exposure in a studio, or a street, or in my house, I process it, either by paying a laboratory to process film, or spending time at my computer processing a digital file. The end result is an image, which I can hang on my wall, give away, or sell it to someone else. That image can exist solely as a negative (physical object), print (physical object) and/or digital file (I would argue, non-physical object in the context of this discussion).

If the image exists only in the first one or two manifestations, I believe it is quite safe to argue that if someone takes that away from me and either hangs it on their wall, thereby depriving me of it, or sells it elsewhere, thereby depriving me of the income derived from its sale, that would described as theft.

If the image exists in the third manifestation, a digital file, it becomes infinitely replicable. Identical files, identical images can be created at the click of a mouse button. In my opinion, therein lies the problem in distinguishing simple 'property' from 'intellectual property'. Forgive me if I am being simplistic, I am merely trying to present my case in a clear and simple way without assuming understanding of the photographic industry and its daily production of images. The minute a created work becomes infinitely replicable at apparently no cost, there is an assumption amongst many that it has become freely available to anyone and everyone at no cost to them, or to me. The fact that I have created the image, the work, and that I own it, seems to disappear into the ether of the internet, where I have no way of ascertaining how many times it has been replicated, copied, used, printed, sold, given away or discarded.

The question is then, "But what harm does it do you, if people like your images, and copy them? Surely that's a good thing – people will share your work, your reputation will be enhanced, it's free advertising for you." with the implicit assumption that more people seeing your work will lead to paid work in the future. I would counter this latter assumption with the observation that if people are able to find my work freely available at no cost without even contacting me, I can see no reason why they would offer to pay me for it unless they are extraordinarily altruistic.

I believe that copying, using and generally appropriating images in digital form is not seen as theft. And I believe that creators' moral and intellectual property rights are not generally understood, acknowledged or protected within the UK, and the current review needs to take this into account.

"Theft of intellectual property doesn't count, it's not the same as theft of physical objects." This or similar is an opinion that photographers often hear – that is, when someone copies your image, you are not deprived of it, so it doesn't 'count' as theft. Of course the answer to this is that once something becomes freely available, its value as a saleable item dramatically reduces, if not disappears entirely. That is clear and proven, and I doubt anyone with sense would argue against it. So why does that opinion still prevail? I suspect that the proliferation of images in the world over the past few years is the answer. Advances in digital technology have meant that it is now easier than it ever was to take photographs and distribute them all over the world. So much to the good, of course – I enjoy taking photographs and I'm delighted that that enjoyment is available to more people. However, the vast number of images being uploaded to the internet on a hourly basis has served to blur the distinction between professional and amateur photography. Amateur photographers, however good their images may be, are often more than happy to give their work away, for the pleasure of seeing it published. Good for them. And this, of course, has put pressure on the professionals who are obliged to charge for the use of their images, in order to make a living. So much for economics – I can't say I like my income being drastically effected by others who are willing to give their work away, but I can't fight it. What I do need to fight is the unintended consequence of their giving their work away; mine is also deemed to be worth less. And because amateurs don't realize that their work has worth, is their intellectual property and has a right to be protected, so mine has become vulnerable to those who would take advantage of an invalid common perception that what I create is free. I don't choose to give my work away, but many people expect me to do so, or may take it without my permission.

This brings me to a dichotomy I often encounter when discussing the industry of photography. The following two statements are often heard, but mutually contradictory:

"Copyright is meaningless since everything is available to copy from the internet"

'My company is unable to commission you to work for us unless you agree to give us your copyright"

So copyright is meaningless and worthless, but at the same time, so very valuable that a large number of companies which I have come across have a policy of not employing any photographers who refuse to sign away their copyright. So is copyright worth something or not?

I would argue that it is indeed worth something, otherwise what's all the fuss about? Intellectual property is incredibly valuable, be that in patents, scientific advances, writing or other creative industries. In fact, I would argue that it is the most important thing that the modern world creates. It is as valuable, possibly more so, that physical objects which we have no problem recognizing as 'property'.

Please excuse the rather conversational introduction, I felt it important to describe the environment in which I find myself and my work, in order that the review committee can understand the context of photographic images in the world today. I also felt it was imperative to address the argument that copyright or other intellectual property theft is not actually theft. I would like to continue my submission with the assumption that it is in fact, stealing, in the same way that stealing a car would be stealing, and as such, illegal.

The UK government should take steps to ensure that there are disincentives to those who would steal, and that there are penalties for those who do.

1. Firstly, artists' rights have not been recognised as human rights by Hargreaves IP review, while both the UN and EU Human Rights act have declared that artists' rights are also human rights. The United Nations Universal Declaration of Human Rights Article 27 (2) 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."

2. Secondly, the moral rights of authors are not automatically granted as in other EU countries. It should not be necessary for me to assert my moral rights as at present under UK law, this should be an automatic right granted to all UK citizens.

3. Thirdly, 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 waive their moral rights. Almost all photographers are individual sole traders, and as such have little power to fight large companies who insist on copyright assignment by bullying tactics. The lack of protection against this very common practice on the part of many commissioners leaves individuals vulnerable to exploitation, extremely unfair negotiating positions, and ultimately, risks a huge diminution in the creative industry itself. If creators are unable to profit appropriately from the work which they create, they will be forced to look elsewhere for their income, and will stop producing the very work which the publishing industry and others depend upon to create their own products.

4. Fourthly, it is imperative that there are disincentives to the stripping of identifying data attached to digital image files, making them 'orphans', and thus free for commercial exploitation. Industry at present can strip digital copyright data from creators work with extreme ease. It can be done remarkably quickly and leaves no trace. If this is done, deliberately or otherwise, that work becomes 'orphan' and becomes explioitable for financial gain by someone other than its creator. 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 offence under current UK legislation. Yet worldwide, every day, millions of digital works are having their digital copyright information stripped rendering these works as orphans. This is just wrong,. It is the equivalent of physically removing a signature from a painting, which anyone would agree was wrong. And yet the Hargreaves review recommended the commercial exploitation of orphan works. It is illogical to create legislation for the licensing of orphan works when the law as it stands has no provisions which will prevent the (inadvertent or otherwise) creation of orphan works.

There is no proven need for orphan works to be commercially exploited, although I believe that there is a case for cultural use of true orphans in libraries, museums, research facilities and for the general public to have access to images which they would like to see. There is no published evidence that shows that UK industries are disadvantaged through being unable to commercially exploit orphan works, although there would doubtless be an advantage to some UK industries if they were to have access to a large number of resources at a substantially lower price than they might have been able to negotiate with the rightful owner, should they have been found. Simply put; large and powerful companies would like to have legislation which enables them to bully individual creators such as myself, and allows them to use my work with the reasoning 'there was no identifying data on the image so we thought it was free'. Much as I would like to think that all those employed in these companies would be scrupulously honest, I can't help but think that every so often, an employee might find it expedient (and profitable) to create an orphan work, rather than contact the creator, and negotiate and pay a fee for its use. Of course as noted above, if deliberate data-stripping can be proved, it is recognized as an offence, but as an individual, not only would this be difficult to prove, more often than not one would never know the enfringement had taken place. Your image is used on page 5 of a newspaper you don’t read – only if a friend recognizes your image and lets you know would you ever find out. And then in order to be paid for your work you are obliged to take on a multi-million pound organization. It's just not practical or expedient. The situation as it stands stacks the odds heavily against the individual creator such as myself, and there is nothing to be gained from it excepting perhaps the shareholders of large companies.

So how to address this problem? Is it possible to allow true orphan works to be seen, enjoyed, and used (commercially or otherwise) rather than sitting in museum vaults gathering dust, while protecting other works from being 'orphaned' and exploited, depriving their creator of his just gain from that exploitation? Registration of each individual image might be one solution. Expensive and time-consuming, especially for those photographers who create literally thousands of images every week, but perhaps it is the only solution.

5. 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 creators' remedies for infringement are compromised if they have not registered that work in the USA. 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 .

However, perhaps I could leave you with this thought: No register would be necessary, if artists' rights were acknowledged as human rights. If moral rights were automatically recognized as belonging to the author of a work, every use of every image would be licensed by its creator and any infringement would be a clear case of theft. Individual creators would be able to spend more time creating new things rather than worrying about who has been making money at their expense while there is not a great deal they can do about it.

In summary:

· Theft of intellectual property needs to be recognised as such

· Artist's rights must be recognised as inviolable human and moral rights

· Steps must be taken to disincentive those who would steal intellectual property

· Substantial penalties must exist, and be exercised against those who steal intellectual property

· If a register of images is the solution to unfair exploitation and theft, such a register must be global in reach, robust, and accessible to individual creators in both price and availability.

5 September 2011