Written evidence submitted by Gordon C. Harrison

 

1. Pro Imaging is a not for profit organisation founded originally to be a self-support group for its members. Our members are located throughout the world, are all imaging professionals, primarily in the field of photography but we also have other imaging disciplines within the range of skills we represent.

2. In our submission therefore we take a broad view of copyright issues, not constrained to the interests of photographers only. Copyright and the moral rights invested in the work of our members are of fundamental importance to their businesses. In this submission we will ask the committee to consider the following issues;

· Moral rights are not automatically granted to citizens in the UK as in other countries, such as in France, in the UK they require to be asserted with the publication of every image.

· Moral rights are not unwaivable in the UK, as in other countries, such as in France.

· There are no sanctions for the removal of digital copyright information from images or other works, unless it can be proved that it is done with the intent to infringe. This weak law results in vast quantities of images and other works having the copyright data removed resulting in the creation of an equally vast quantity of orphan works.

· The damage to creative businesses by enabling the commercial use of orphan works and the absence of any credible evidence that supports the argument that there is a wider public benefit to be gained through commercial use orphan works.

· Independent creatives are not given a level playing field with industry through the use of unfair contract terms requiring creators to relinquish their copyright and/or waive their moral rights.

· The state education system at primary and secondary level, while teaching our future wealth creators the various skills they need in the various creative disciplines, fails to impart the importance of their creative rights and the knowledge of intellectual property rights they need to protect and commercially exploit their creativity.

· That the proposed digital copyright exchange, in itself an idea to be welcomed, needs to be global as opposed to national. Copyright does not stop at national borders and national registration systems will result in more problems being created than are solved.

The remainder of this submission provides further detail on each of the above issues.

Moral rights should be automatically granted by UK law

3. Moral rights for photographers and other creatives include the following rights;

· The right to be credited as the author of a work. This is of fundamental importance to all creators. It is in fact their ‘brand’, and like all brands is a key factor in identifying one creators’ product as distinct from those of other sellers.

· The right to object to a derogatory treatment of a work in a manner deemed to be prejudicial to the creator’s honour and reputation.

There are other rights associated with moral rights but these are the key ones, particularly the right to be credited, that we wish to highlight to the committee. Current copyright law requires these rights to be 'asserted’ in order to benefit from their provisions. Currently, through the new opportunities offered by the internet, we have an ever growing section of a global public generating creative content, ‘citizen creators’, who, through no fault of their own, have little or no understanding of IP law concerning their works. They are creating a vast amount of content in which the author has not ‘asserted’ their moral rights, but they have attached their name to their work.

4. As a result, the majority of on-line works do not have moral rights asserted as required by the current UK legislation. This leaves such works open to abuse whereby they can be reproduced without the author of the work being credited, thus separating the work and its author, resulting in the creation of an orphan work.

5. The law should recognise that when a creator has added their name to a work that in doing so they are in fact asserting their moral right to be identified as the author of the work, and that they are, in a moral sense, entitled to benefit from all the moral rights provisions. This system works well in other countries and no evidence has ever been presented to justify the need for the UK’s current ‘assertion’ requirement. ‘Assertion’ is an outdated concept overtaken by the opportunities offered by the digital age whereby everyone is able to participate in generating creative content under their own name.

6. The current copyright legislation lists a number of exceptions to moral rights in that newspapers, magazines and some books are exempted from the otherwise legal requirement to respect authors moral rights. These exceptions are yet another mechanism whereby an author’s name becomes separated from their work and in consequence adding to the proliferation of orphan works. These are completely unjustifiable exceptions, when an author’s name is known it should always be published with the work.

7. I urge the committee to recommend that the assertion requirement be excluded from any new or updated copyright legislation and that the current exceptions to exempting newspapers, magazines, etc., from respecting authors’ moral rights should be repealed. Doing so will support the creative sector of the UK economy and form one part of the solution concerning orphan works.

Moral rights should be un-waivable under UK law

8. Under current UK law creators can be required by another person or organisation to waive their moral rights. That is, amongst other rights, they give up the right to be identified as the author of the work(s) concerned whenever that person or organisation uses them. The result of such a provision is that we have yet another mechanism to create orphan works which separates the work from the author’s name.

9. In other countries moral rights are not only automatic without the need to assert them, such as in France, they are inalienable, perpetual and inviolable. No evidence has ever been presented to show why this should not be the case in the UK. Without strong moral rights UK creators will face an economic disadvantage in trying to exploit their work, for example pressure can be exerted on them to waive their moral rights or lose a commission, and they are also at a disadvantage compared to creators in other countries where moral rights are inviolable.

10. Given that the inquiry is also going to consider Professor Hargreaves recommendation for the use of orphan works, we would hope the committee will recognise the logical necessity of un-waivable moral rights to ensure that the orphan works problem is constrained.

Removal of copyright information from digital works should be an offence

11. Digital works such as photographs have a provision for embedded metadata, which amongst other things, identifies the copyright owner of the work, its copyright status, such as ‘All Rights Reserved’, and contact details for the copyright owner.

12. The committee will appreciate the importance of this digital copyright metadata to the creator of the work. It is a public statement of ownership, it can set terms for use, and it provides a means whereby the copyright owner of the work can be contacted. For example, using any one of a number of programs, any image in an internet browser can be easily accessed and made to display its embedded metadata, making it easy to contact the copyright owner in order to acquire a license to use the image.

13. Removal of copyright metadata from digital works should be an offence. Unfortunately under existing UK law it is only an offence if it can be shown that the person or organisation that removed the copyright information did so with the intent to infringe the copyright in the work.

14. Digital copyright metadata is removed daily on a vast industrial scale on the internet by organisations seeking submissions of digital works, such as social media to give but one such example. Some social media actually employ technical devices to overcome certain copyright protections which have been designed to make it difficult to copy such works. Yet, social media are now used as a significant part of promoting a company’s business, a process which unfortunately undermines the businesses copyright protections. This issue not only affects professional creators, the public is invited to submit their own digital works to an endless appeal for creative content and when they do the copyright metadata is also stripped from their works.

15. It is virtually impossible to show that companies stripping out copyright data do so with the intent to infringe. They strip out copyright metadata simply as a matter of routine and in so doing create orphan works on a colossal global scale. There is no practical need to strip copyright metadata from digital works, such data is an insignificant percentage of the size of a digital work, and no organisation has ever published valid evidence to legitimise its actions. Stripping copyright metadata requires an organisation to take steps to remove it, retaining it requires no effort at all. Stripping out digital copyright data is unethical; it should be illegal under any circumstances.

16. We would strongly urge the committee to consider making the removal of copyright data from digital works an offence regardless of the intent behind the act. This will place no burden on the economy or the organisations who participate in this abuse. Organisations will simply ‘switch-off’ the stripping mechanism and in an instant a major contributor to the orphan works problem is eliminated. Of course there will always be ‘rogues’, but the passing of such a law, giving the creator legal rights to pursue offenders, will eliminate copyright metadata stripping by otherwise reputable companies.

Orphan works should not be used for commercial purposes

17. Professor Hargreaves has recommended that orphan works be used for commercial purposes, yet presented no statistical evidence to show why business is disadvantaged by being unable to use orphan works. There is certainly a case to be made for cultural use of orphan works, whereby they are accessible to the public via academic and cultural institutions.

18. In his Digital Opportunity review Professor Hargreaves said that the release of "a vast treasure trove" of orphan works is "a move with no economic downside". Providing the release is for cultural use only this is true, but is quite wrong when commercial use is considered.

19. Professor Hargreaves stated that in most cases the fee for the use of orphan works would be nominal, then went on to say this would cause concern from rights holders of a resource of "almost free to use works" but countered that fear by stating that the "wider economic interest" should prevail over their fears. Professor Hargreaves put forward no evidence to support such an assertion and we believe he is mistaken on this point. We have set out our arguments that led to our conclusion below.

20. The creative industries are a major driver of the UK economy; they survive by being able to market and license their creativity. That market is extremely competitive demanding innovation and business acumen to compete effectively. I have already mentioned that globally, every day, a vast quantity of digital works are being orphaned, and I agree with the Professor when he rightly calls this "a vast treasure trove".

21. Such a quantity of creative works becoming commercially available as "almost free to use works" will have permanent and significant effects on the viability of the creative economy. It will tilt the market in favour of industries that consume creativity and severely disadvantage the market sector that generates creative content. It is clear that if you suddenly make available a vast, continually renewable, almost free to use resource of creative works, those who previously had a viable business model creating such works will find their business severely, possibly fatally, compromised.

22. Damaging the creative industries in this way will not serve the wider economic interest. It will serve well those industries which are consumers of creative content. Thus the commercialisation of orphan works will work strongly to the advantage of those segments of the economy which play no part in the UK’s most vital and key economic activity, creativity. Should commercial use of orphan works be passed, within a very short time commercial aggregators would be launched where anyone can browse through hundreds of thousands of ‘diligently searched’ orphan works that are almost free to use. Commercialisation of orphan works will create a huge imbalance in the market, to the advantage of one sector, and to the great disadvantage of the other sector. Legislation at all times should seek to be neutral in its effect on markets, allowing the market itself to determine winners and losers by innovation and competition. We are sure the committee will recognise the validity of this position and we urge them to reject the recommendation for commercialisation of orphan works.

23. What will serve the wider economic interest is to make orphan works available via cultural institutions. The vast treasure trove Professor Hargreaves refers to then becomes available to the public at large, preserving cultural works that otherwise could become permanently lost. Such access to cultural works will also serve as inspirational material for today’s creators, and therefore will be a major factor in the generation of new creative content. In this way the wider economic interest is served, orphan works become a catalyst for the generation of new works instead of simply being a resource for "almost free" recycled creativity, to be copied without innovation, and the imbalance that commercialisation of orphan works would cause in the creative market is avoided.

Creators are not given a level playing field with industry

24. Creative businesses suffer from a number of issues which damage their economic viability. At present when bidding for business, and winning the commission, they are frequently presented with a contract which can require them to –

Waive their moral rights, and/or

Assign the copyright to the commissioner

- and failing to do so will result in the contract not being awarded.

We have already mentioned the problems caused by waiving of moral rights, both in its impact on the original creator (paras 3-10) and its contribution to the creation of orphan works.

25. With regard to copyright, while not prohibiting the assignment of copyright from the owner to another person or organisation, it should not be a mandatory requirement of a contract that the creator must assign their copyright to another person or organisation on penalty of not being awarded the contract. These are unfair contract terms which undermine the creators’ economic viability. A transfer of copyright may be done voluntarily, bequeathing to a family member for example, but in contract law copyright should be inalienable, as in Germany. Given the dynamism of the Germany economy compared to the UK’s it is clear that inalienable copyright has no deleterious effect on its vitality.

26. I would urge the committee to implement inalienable copyright with regard to contract law in the new copyright legislation to level the economic playing field between creators and those who wish to exploit the creators’ rights.

The education system is failing to educate pupils concerning IP

27. Within the primary and secondary education system there is a mandatory requirement to teach pupils the skills they will need to become a citizen that can contribute to the social and economic well being of the United Kingdom. Thus skills in numeracy, science and literacy are taught, along with skills in the various arts and creative processes.

28. However, students are not taught a basic understanding of intellectual property rights they are granted by the law as soon as they create any kind of art work, a story, poem, photograph, etc. This has significant repercussions within the UK economy. One of which is that the greater part of the public have little or no understanding of copyright. This has been highlighted and lamented in various government reports, such as in the "Copyright; The Way Ahead in a Digital Age" by David Lammy MP for the previous government. However no action has ever been proposed by the state to deal with this problem.

29. Apart from the lack of understanding of copyright, a section of the public has developed a culture which equates copyright with exploitation of the public’s rights to free content, that it inhibits their rights to freedom of expression, and so piracy of copyrighted content has grown to become a significant issue.

30. It is too easy to blame the rise of the internet for such public attitudes, that technology has made it easier to copy. Technology is neutral; it is public understanding and the use of technology that is at the heart of this issue. It would help if throughout their time in primary and secondary education, in lessons concerning creativity, pupils were introduced to the intellectual property rights the law gives them in order that they can benefit from their creativity. That copyright is a universal benefit granted to everyone.

31. Such a program would result in pupils leaving the education system with an entirely different understanding of the purpose of copyright. They would no longer exclusively see it as a ‘device’ by which they can be exploited by global corporations, but as a benefit to them and their creativity. We don’t pretend such a program would be a panacea to all the ills currently arrayed against the creative sector by piracy, but over time it would have a significant beneficial effect. While the education system is not a part of the remit of the committee, intellectual property and how to have a copyright system fit for the digital age certainly is, and that has to include how it is perceived by the public.

32. We therefore urge the committee to recommend that the primary and secondary education system include compulsory education on intellectual property law as part of the various subjects to which these laws apply.

The Digital Copyright Exchange should be global, not national

33. Professor Hargreaves is to be congratulated for introducing the concept of a Digital Copyright Exchange to provide a common platform for licensing transactions. While much of the detail needs work to bring such a concept to reality there is no doubt that a universal Digital Copyright Exchange would confer a considerable number of benefits to creators and consumers of creativity.

34. Professor Hargreaves has envisioned the Digital Copyright Exchange as a UK initiative, serving UK interests, with IPO or Ofcom oversight, with the aim of giving the UK an advantage over competitor nations by providing the means whereby licensing can become simpler, more efficient and at least partly if not wholly automated. These also are laudable aims.

35. However, the market in which creators operate is not national, it is global; copyright does not stop at national borders. There is a fundamental problem with national copyright databases, and it is this, if other nations introduce such national schemes, as the US already has done with its own national registration system, there will be a proliferation of national copyright schemes, each with their particular form of bureaucracy, charges, and legal implications.

36. Given that creators work in a global market, they are then faced with the difficulty and cost of registering their works on a variety of different national copyright registrations systems to afford protection in that country. We are sure the committee will recognise that this is a most unsatisfactory outcome. Instead of achieving a more efficient licensing market place, it would be creating an even more burdensome one.

37. National registrations systems, such as the proposed UK Digital Copyright Exchange would not resolve the orphan works problem either. A diligent search of the proposed UK Digital Copyright Exchange may not find the rightful owner of a work, but a further diligent search of, for example, the US Copyright Registration system could disclose all the contact and other details necessary to proceed with seeking usage permission from the author.

38. Thus national copyright databases will neither help the creator protect their work globally, nor assist the consumer of creativity to discover the owner of an apparent orphan work without searching all the national copyright databases. Thus national solutions add further complexity to the copyright licensing procedures instead of making them more efficient.

39. A global solution is needed. Copyright is largely determined by various global treaties, such as the Berne Convention, that limit what national governments can impose within their own copyright regimes. It follows that if there has to be a Digital Copyright Exchange, and we agree there should be, the way forward is to implement such a system globally. There is no reason why the UK should not take the lead in initiating such a program, working with the UN World Intellectual Property Organisation (WIPO), supported by our partners in the EU, in order to establish a Global Copyright Exchange, a single database open to creators of all nations.

40. A global licensing system has already been developed by the PLUS Coalition.1 PLUS; Picture Licensing Universal System, is an international non-profit organisation, its aim is to simplify and facilitate the communication and management of image rights. It is organized by respected associations, leading companies, standards bodies, scholars and industry experts. Given that such a well developed global system already exists it seems like an obvious candidate as the foundation for any further development to achieve all of Professor Hargreaves aims and also to benefit from the experience already accrued by the PLUS Coalition.

41. Therefore, we strongly urge the committee to accept the recommendation for a Digital Copyright Exchange, but to be developed as a global exchange in association with our international partners, such as the EU, through the United Nations World Intellectual Property Organisation.