Written evidence submitted by Jonathan Knowles

Main Points

1. Commercial use of Orphan Works removes my human right to control my property

2. Commercial use of Orphan Works risks making me breach my contracts with my clients and suppliers

3. Lack of discussion on Moral Rights

4. Concern over what constitutes a diligent search

5. Concern where liability will fall if a revenant author appears (especially from abroad)

6. Concern over Extended Collective Licencing

7. Lack of punitive damages for copyright infringement

Brief introduction about Jonathan Knowles

Jonathan Knowles is a commercial photographer operating in the advertising field. He is also a member of Stop 43.

He is known Worldwide for his very striking liquid and still life photography and has received numerous awards across the globe. He has been listed in the Top 200 Advertising Photographers in the World for the last eight years and has recently had work published in the ‘100 Best in Photography’ book. He is now one of the 10 most awarded winners of all time at the New York based Graphis Awards.

The business has three full time employees, and uses several freelancers as required. It has a turnover of around £1million per year. On average 40-45% of that turnover comes from clients outside the UK, though the majority of the work shot for UK clients will also run in other parts of the World.

In the UK, Jonathan is probably best known for his creation of the O2 bubbles. He has also photographed a number of well-known faces that include the current Prime Minister, Jonny Wilkinson and Dawn French.

Explanation of Main Points

1. Commercial use of Orphan Works removes my human right to control my property

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.

This fact was reaffirmed in the ruling in the 20C Fox vs. BT case on 28 July 2011. Any exception to this would neither be proportionate, nor in the public interest.

My work can very easily become orphaned, either deliberately or not, removing any identifying marks showing that I own it. As an example, no photograph leaves my studio without full metadata attached to it (Copyright information, owner's address, website etc), yet there are thousands of my own images on the internet that have had this metadata stripped by whoever, creating Orphans.

Currently there are no proper sanctions to punish someone for doing removing metadata, thereby orphaning my work, as it needs to be proved that the removal was intentional. This is almost impossible, and whilst this situation exists many of my images would be found and used without my knowledge, and could well be used to endorse causes to which I would not supply imagery at any price, if commercial use of Orphans is permitted. This brings with the risk that somebody who wants to use one of my images will intentionally orphan it, and then buy a licence from the proposed UK licencing body for a nominal fee, rather than negotiating a proper commercial fee with me for the licence they want.

Cultural use v. Commercial use

Cultural Use encompasses viewing and enjoyment as well as cultural enrichment, including research and education. It also allows museums and cultural institutions to use whatever means necessary preserve their archives. Archive preservation has been raised as a problem in the report under current rules; as long as it does not include consequential commercial exploitation, no sensible artist has a problem with archive preservation. At our meeting with the IPO last week, their representatives freely admitted that non-commercial use of Orphan Works can stimulate growth.

However, the allowance of Commercial Use of Orphan Works amounts to the largest enforced transfer of wealth from ordinary people to the powerful since the enclosures.

Control of private individuals’ intellectual property will be removed from them, and it will be aggregated and exploited at minimal cost by larger and more powerful institutions. Commercial Use of orphan works will give private and state enterprise access to intellectual property that has largely been stolen, or misappropriated. For example, any image uploaded to the BBC has its metadata stripped in direct contravention of the Copyrights, Designs and Patents Act 1988, as does any image uploaded to Facebook. These images therefore have been automatically orphaned, and the organisations in possession of them aim to exploit them. Twitter’s new photo service is quite open about its metadata stripping, and by uploading users agree to give Twitter a licence to exploit the work.

Commercial Use of Orphan Works undoubtedly breach Artists’ Human Rights to control their property, and will legitimise commercial theft.

2. Commercial use of Orphan Works risks making me breach my contracts with my clients and suppliers

Almost all of my commissioned work involves granting exclusive 'licences to use' to my clients in specific territories, specific media, and for a limited duration. The permitting of Commercial use of Orphan Works would mean that someone could find one of these, and if it were a conceptual rather than a product specific image, use it commercially. I cannot imagine that O2 would be happy to see one of their bubbles being used commercially by any other organization, whether in the telecoms sector or not; and there are literally millions of copies of the bubbles that I shot for O2, on the internet, that have been orphaned.

On a human level, this is even more serious where models are concerned. When I use a model in a photograph, I pay a fee, and secure a signed model release with specific permitted uses listed. The fee reflects the extent of the usage purchased. A model’s face is his/her livelihood, and sudden over-exposure without proper remuneration will kill a career. The licencing of Orphan Works for commercial purposes is a real problem for these people.

If I cannot guarantee exclusivity to my clients, through protection given by copyright law, then there is every chance that international clients will go and shoot work in a country where protection is more certain, such as the US, where registration with the USCO will guarantee punitive damages against infringers, and deter infringement.

3. Lack of discussion on Moral rights

The Hargreaves Review was expressly told to avoid Moral Rights, but these are inextricably intertwined with any discussion on copyright, and bring in the human rights aspect.

Moral rights are not automatically granted in the UK as they are in other European countries. Moral rights can be asserted, and I have done that to object to reworking of my images with which I do not agree, but I had to assert them to do so. If Moral rights were automatic, and unwaivable as they are in other European countries, the creation of orphans would be reduced, as initial users of an image would have to credit the creator.

4. Concern over what constitutes a diligent search

At a recent meeting I attended on behalf of Stop 43 with representatives of the IPO and others, we were told by the IPO that the Digital Copyright Exchange proposed by Professor Hargreaves would not be in the consultation, as they do not propose to put it in the legislation.

If the commercial use of orphan works is to be permitted, one of the key criteria in granting a licence is to show that a diligent search for the author has been done. The definition of what constitutes a diligent search is crucial to this, as is the question whether it is EVEN POSSIBLE to do a diligent search in the modern World. There are already approximately six billion images on Flickr alone, many libraries with several million images each, aside from all the billions of unaggregated pictures from professionals and amateurs alike. The DCE proposed by Professor Hargreaves (based on the National Cultural Archive, originally put forward by Stop 43) is supposed to serve as a registry where we can register our work to give it additional protection, without removing the automatic right of copyright at the point of creation. This is intended as a place where, primarily, professionals might register all their work, to make it visually searchable. Use of the registry would undoubtedly be a compulsory element in a diligent search, if it exists. If commercial use of orphan works is to be permitted, there has to be a registry or series of registries in some form that are visually searchable.

The real downside of the DCE, which is probably why the IPO do not back it, is that it would create a two-tier system of copyright in clear contravention of the Berne Convention (which the UK signed as far back as 1887), and TRIPS (Uruguay GATT 1994), as registered works will be more protected than those which are not. Berne Article 5 clearly states that ‘the rights’ must not be subject to ‘formality’; registration is obviously a ‘formality’.

The proposed National Cultural Archive avoided this situation by allowing viewing only of orphan works, but allowing commercial use of registered works of known parentage, once a licence had been negotiated with the creator directly. It did not breach Berne, as it offered no additional copyright protection. That was not necessary, as no commercial use of orphan works was permissible under the Stop 43 scheme.

5. Concern where liability will fall if a revenant author appears (especially from abroad)

Without a doubt, much of the intellectual property likely to be licenced by the proposed, but yet to be defined, UK licencing body, for a nominal fee, is likely to be of foreign parentage. Different jurisdictions have different protections for their citizens’ IP. For example, the US still has a registry, having been allowed to keep it in return for its signature to the Berne Convention as late as 1988. A photograph registered with the US Copyright Office attracts a penalty of $150 000 for the first infringement of copyright. The USCO is not a visually searchable database, and almost all the images registered there will never be registered with a UK body, so how will the UK body know if it is granting a licence for an image registered with the USCO? If the subsequent licencee is sued for $150 000 for each infringement, will that bill (and legal costs) be picked up by the UK licencing body? The Daily Mail is currently being sued for very large sums for infringing copyrights registered at the USCO; the same licences that would perhaps have been bought at the UK licencing body for a few pounds under the proposed system, but without any protection from US law.

Is it the UK Licencing body / the government or the Licencee that will be liable? If it is the latter, a licence is not worth the paper it’s written on.

6. Concern over Extended Collective Licencing

Extended Collective Licencing is not applicable to a medium such as photography where the majority of licences are primary licences, between photographers and their clients. Most of these licences are exclusive, covering a number of territories, and some are for considerable durations. In the advertising sector, many of my licences last in perpetuity. Under the terms of these agreements, I am not allowed to sell the images covered to others. If Extended Collective Licencing were introduced, a collecting agency would take it within its powers to sell images for nominal fees without taking into account any exclusive contractual obligations a photographer (or artist / model featured) has with a client. It effectively makes it impossible to carry on a world-class commercial photography business in this country. Clients do not buy time from us, but licences to use our intellectual property, in this case photographs. In return for their money, they expect exclusivity, control and confidentiality, all of which will be breached by an ECL proposal.

Additionally, if this system is introduced, I am concerned that there is no sensible way of setting a generic ‘Market Price’ for a photograph. The price will always reflect who took it, and other aspects of its provenance. In the case of Orphans, these simple facts are unknown. In the case of non-orphan works, which, if not opted-out, Professor Hargreaves presumes will be available for Extended Collective Licencing, whether the owner is traceable or not, how will the body know what someone would be prepared to sell an image for? I may want to take into account what it cost to produce, whether I have any models to pay a royalty to, any other costs to defray, and whether I want to sell at all, sell for the money offered or try to negotiate a better price.

Not being allowed to decide whether to sell my work or not (I obviously would not sell if there was an exclusive licence in place to a client, for example), nor to set a price, even if I am known as the author, breaches my Human Right to control my property.

7. Lack of punitive damages for copyright infringement

I had hoped the Hargreaves Review might introduce punitive damages for infringing copyright. Instead, as an incentive to register with the Digital Copyright Exchange, he came up with a suggestion of enhanced damages, for registered images.

This falls far short of a remedy that is ‘effective, proportionate and dissuasive’ as required by the EU, though obviously much better than the current situation where an infringer only has to pay what they would have paid anyway had they bought a licence. The current situation makes it worth trying to get away with everything, and only paying and saying ‘sorry’ whenever caught.

The only solution to this is to introduce stiff and automatic penalties for infringement that make it worth it for any organisation to be honest about what they are using.

5 September 2011