Written evidence submitted by Joseph Ford

I am a professional commercial photographer. I have been working full-time in the industry for seven years.

My income is derived from advertising photography and the licensing of my images. It is broken down into three parts:

A) Fees for creating images

B) Licence fees based on the use of images created for a specific purpose, e.g. advertising campaign for a product

C) Licence fees for use of existing non-commissioned images

Approximately 40% of my income derives from (A), 50% from (B) and 10% from (C), i.e. 60% of my income derives directly from intellectual property (IP) licence fees. I am hence very concerned by the recommendations of the Hargreaves Review.

My main concerns are as follows; I will explain them in more detail below:

1. The review does not recommend automatically granting moral rights as is standard in other EU countries.

2. Unlike in other EU countries, moral rights are not unwaivable.

3. The review does not propose sanctions for removing copyright information from digital works.

4. The review suggests using orphan works for commercial purposes.

5. Artists’ rights are not recognised as human rights by the Hargreaves review.

1 & 2: Simply put, moral rights are the right to be recognised and credited as the creator of IP and for the IP not to be altered without the creator’s approval.

In other EU countries, moral rights are automatically granted and cannot be waived. This does not mean that use of IP without payment is impossible – a photographer can grant a licence to a charity to use his photographs for promotion for free, for example, but it does mean that creators of IP have an automatic right to determine what is done with the images or other IP that they create, and that large corporations cannot oblige freelancers to waive all their moral rights as a condition of working for them.

However the Hargreaves review proposes no automatic granting of these moral rights and does not suggest making these rights unwaivable. Here is an example of the potential effect on individual photographers and the industry as a whole:

A photographer is commissioned by a magazine to take a photograph, for which he is paid £100. The magazine requires him to waive his moral rights in order to get the job.

A multinational clothing company sees the picture in the magazine, contacts the magazine and pays them £10000 for the right to use the picture on T-shirts. The magazine makes money; the clothing company makes money; the photographer who created the IP receives neither money nor credit.

The knock-on effect to photographers and graphic artists in general is that because the clothing company bought an image from a magazine, no-one else was commissioned to create a design for the T-shirt.

3. Digital works including photographs can have metadata imbedded in them. This metadata can include the contact details of creator of the work, the terms of licensing etc, and is simple to imbed and read. It is also very simple to remove. Removing this information creates a so-called ‘orphan work’ – a digital file with no indication of ownership. The Hargreaves review proposes no sanctions for removing this copyright information, making it effectively legal to strip copyright protection from creators of digital images (photographers, illustrators etc).

4. The lack of any proposed sanction for removing this copyright information leads to my next point. The review suggests that orphan works should be allowed to be used for commercial purposes. If a company wants to use an image but can legally claim not to know who created the image, it can use it for free. Therefore all a company needs to do to steal an image with impunity is remove the copyright information, which takes a few seconds.

Images often cost tens of thousands of pounds to create, because of model fees, travel expenses, set-building, location hire etc, so there is a strong incentive for companies to steal IP in the form of images rather than commission photographers or license existing images. The recommendations of the Hargreaves review are in effect that UK legislation should encourage and facilitate theft of IP by allowing removal of copyright information and use of orphan works with impunity. This is morally wrong and goes against UK and International Human Rights legislation, as I will explain in my next point.

5. The UN 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 ." This means that the creator of a work has the right to protection of his moral rights and also to the material interests, i.e. the commercial exploitation of his work by licensing it for use.

A UK court ruling (20thC Fox vs ‘Newsbin2’) has also found that "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";

that "piracy of copyright work is a breach of the copyright holder's human rights";

that "the copyright holder is therefore entitled to legal redress";

and, that "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".

Despite these explicit statements that artists’ rights are human rights, the Hargreaves review does not recognise them as such, and does not offer artists and creators of digital IP the protection to which they are entitled.

To conclude, commercial photographers’ clients tend to be national and multinational corporations: advertising agencies, news organisations etc. We are in a similar position to that of small-scale farmers selling to supermarket chains: our clients dictate prices and terms, and if we don’t accept those terms, they refuse to work with us. We need our rights to be acknowledged in law in order to be able to work and make a living, as we are not given equal legal status to the commissioners of photography.

In deciding how to implement the recommendations of the Hargreaves Review, the government has been given an opportunity to protect the IP rights, a basic human right, of authors of all sorts. Implementing the recommendations as they stand would infringe the human rights of creators and immeasurably damage the financial productivity of the UK’s creative industries. The UK is renowned as a creative hotbed, and this excellence needs to be protected. Instead of facilitating IP theft by allowing orphan works (unattributed works) to be used for commercial purposes, the government should take the opportunity to prevent orphan works being created, by implementing sanctions against those who strip the copyright information (metadata) from digital works.

Thank you for taking the time to read my response.