Written evidence submitted by Tom Miles

I have been a professional photographer for the past 14 years, working first as a photographer's assistant, and later as a photographer in my own right. I currently work regualrly for a range of national magazines (Men's Health, Runner's World, Golf Monthly...) several book publishers (Penguin, Octopus, Hodder) as well as countless PR and commercial clients. I am very concerned by some of the recommendations made by the Hargreaves review, as I feel if enacted they will worsen a situation that already favours the larger players over self-employed creatives such as myself.

I have to sign contracts with the people who commission my work, and am very careful to only sign contracts which allow me to retain both my copyright and Moral rights. In most circumstances I have to request these contracts specifically, as the companies that commission me initially only offer a standard "rights grabbing" contract, which in a nutshell would mean that for one single payment I would cease to own my work, they could reproduce it in any form they choose, as widely as they like, and for as long as they like, with no extra payment to me. In the case of both copyright assignment and a waiver of moral rights, I would even have to ask their permission to use an image I had created in my own self-promotional material, such as a website or portfolio, and the work could be credited to someone else, used in a defamatory way, or altered way beyond recognition and I would have no recourse.

From my own business experience, retaining my copyright brings in around 20% of my income annually, in respect of work that is relicensed and reused. As for negotiating fees in the first instance, an awareness of how copyright and licensing works is worth a huge amount to me each year, as I'm able to calculate a fee based accurately on the usage a client intends to put my work to, rather than simply accepting the first figure I'm offered.

As things currently stand, pursuing a copyright infringement, either in print or online, is a very costly and time-consuming business, and current proposals look like making it even more so. Needless to say, many creatives like myself will often abandon such battles, and try and concentrate on our core business activity. The potential loss of revenue to the SME sector is huge.

The following are my main concerns, in line with the artists bill of rights (http://artists-bill-of-rights.org):

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

Moral rights have still not been made unwaivable as in other EU countries. 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. It is illogical to bring forth legislation for the licensing of orphan works when the law as it stands has no provisions which will prevent or significantly reduce the creation of orphan works

No sanctions are proposed for the removal of digital copyright information from digital works. 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 morally wrong, it is the equivalent of physically removing a signature from a painting, an act that all would agree was reprehensible. Yet Professor Hargreaves, knowing this, has recommended the commercial exploitation of orphan works. This will only make it more difficult than ever for creators to make a successful business when there is huge rersource of orphan works to exploit, a situation which will only get worse as time passes.

The review proposes allowing orphan works to be used for commercial purposes. There is no proven need for orphan works to be commercially exploited, and Professor Hargreaves said that copyright law should be evidence driven. There is no published evidence that shows that UK industries are disadvantaged through being unable to commercially exploit orphan works. There is no doubt a desire with many sectors of the UK industry, such as publishing, to have commercial access to orphan works at a price and on terms below what the rightful owner would require. This is robbing Peter to pay Paul, where Peter is the creator. This is unjust and unfair. There is a case to permit orphan works to be used for cultural purposes, such as in libraries or museums, providing that a precise definition of cultural use can be defined and agreed.

That remedies for unauthorised use are restricted for those who have not registered their works. 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 a 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.1

Creators are not given a level playing field with industry. Industry at present can strip digital copyright data from creators work, not credit them, require creators to waive their moral rights or risk losing a contract, assign their copyright or lose a contract, all of which impose grossly unfair terms on the creator.

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

United Nations Universal Declaration of Human Rights Article 27 (2) states:

1 Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2 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.

Note also that a recent UK court ruling (20thC Fox vs 'Newsbin2')2 established that -

Copyrights are property rights protected by Article 1 of the First Protocol of the European Convention on Human Rights,3 as also expressed in Article 1 of the First Protocol of the Human Rights Act 1998;4

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

the copyright holder is therefore entitled to legal redress;

and, 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 19985 must also be read and given effect in a way which is compatible with human rights.

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[1] http://www.useplus.com/index.asp

[2] http://bbc.in/pLaZZR

[3] http://bit.ly/nwH26q

[4] http://bit.ly/pAGzcO

[5] http://bit.ly/mTYKdZ