Written evidence submitted by Skyscan

I take the opportunity to place before you facts about the real world of photographers in the UK and about the fears many of us share for our livelihood and futures with respect to the erosion of the Intellectual Property rights in our artistic works. Photography has changed out of all recognition in the last decade with the introduction of digital imaging and with it has come the need to address problems which are happening NOW in our industry.

I give a brief history of our company as a background to our concerns.

1.0 Skyscan Aerial Photography & Photolibrary

1.1 Skyscan is a husband and wife partnership offering aerial photographic services since the early 1980’s.

1.2 One of those services is an aerial photographic library representing the work of 40+ international aerial photographers in addition to ourselves.

1.3 Our own Skyscan photographs are captured from a remotely controlled camera platform suspended beneath a tethered barrage balloon. We developed this system to capture an unusual birds-eye viewpoint which is higher than mast borne cameras and much lower than aircraft are usually permitted to operate.

1.4 We also distribute the mapping aerial imagery found on Google Earth and Bing.com/maps.

2.0 Concerns : Orphan Works

2.1 In common with most other UK photographers, we are monitoring with growing alarm, the passage of legislation at home and abroad which affect not only photographers and photo-users local to the country but all such interested parties all over the World. The world is now a global Internet village and it is no longer possible to restrict legislated use to the borders of individual countries when the internet gives instant access to the intellectual content and property of those inhabiting a particular country…..to anyone else in the World.

2.2 Therefore, those involved in making legislation about IP matters MUST be aware that the consequences will also affect those outside their borders who may be unable to appeal or influence their decision. This realisation does not appear to have been appreciated in the US in particular.

2.3 The movement of digital images around the world and the ease of manipulation of the images make it extremely easy to lose track of the identity of the original creator; and therefore lose the route to the proper payment of reproduction fees and copyright credit to the artist. I have had a Skyscan image used in an amusing advertising campaign where the final image was sent to me twelve months later by a Canadian friend. He in turn had received it through a chain of international friends and at no stage was there mention of the original image creators ….. nor even of the product it advertised.

2.4 There are large internet image specific search engines which garner photographs from all over the internet world and which facilitate the loss of accreditation of IP. Sometimes the embedded copyright information is stripped out as part of the collection process providing an immediate detaching of the image from it’s Creator. This produces what is known as ‘Orphan Works’.

2.5 Once a Work is orphaned from it’s Creator on the internet it is often innocently ‘stolen’ for use by those naïve in the ways of commercial photographic copyright and who do not appreciate the effect on the photographer’s livelihood. In my experience, those in the academic world both young and old are particularly prone to this failing… and are often those most likely to search for and use a copyright protected image. The following example was used in a ‘spoiler’ after an illegal download of the image (courtesy www.Stop43.org.uk)1

3.0 Suggested Actions : Orphan Works

3.1 There should be global harmonisation on copyright laws including consideration for the interests of those IP holders outside the national borders. There should be discussions with legislators in other countries at early stages in reviews of laws to assess the impact on IP providers in other countries and legal frameworks created on a global basis to ensure the corporations applying these methods (which are usually large and multinational) are forced to work in a fair and proper manner to the rights of Creators..

3.2 Research studies (and finance) should be provided into watermarking technologies, image tracking systems and image recognition technologies for digital imagery so that information containing the name of the creator can be embedded into a piece of copyright work or digital file, similar to an artist signing a painted canvas. This can then stay within the file and provide easy identification of the IP owner. Such systems exists but many users .... and legislators .... are unaware of them. One example is the technology available on www.TinEye.com which claims to trace where an image comes from and how it is being used. This system and others like it could surely be the basis for a global image database linking Creators with images lacking copyright accreditation.

3.3 The US has a copyright system requiring every image to be lodged with the Department; this is so cumbersome that inevitably many photographers and many images fail to be registered. As an owner of a photolibrary, for our company the time and beauracracy involved frankly would put us out of business.

3.4 However, the creation of an international register of copyright owners where such identification marks can be lodged by the copyright owner and which can be researched by those picture users seeking to locate an artist for permission to reproduce his image would be much more workable. A similar system exists with internet domain names and should not be difficult to instigate; this provides for single place of enquiry for those seeking to locate a Creator.

3.5 Similarly, the UK legal system should support the right of the Artist to set a value on his work and receive what he decides is proper reward for his own creativity, with appropriate penalty where such breaches of his copyright are found. Some misguided proposed legislation in the US has suggested the user to decide what he considers a reasonable fee and also to decide what he thinks constitutes "reasonable effort" to find the Artist. This goes against all natural justice and undermines the value of IP. Lack of legislation to punish blatant misuse diminishes the rights of Creators.

4.0 Concerns : Rights of Creators

4.1 As enshrined in the United Nations Universal Declaration of Human Rights Article 27(2) There should be an immediate, absolute and inalienable right to be identified as the Creator of a Work from the moment of it’s creation. Furthermore for that right to persist in moral and property terms for a stated – long – period. The Creator may waive such rights, for example under terms of a commission or contract of service, but that would then be governed by commercial law.

4.2 My husband and I have a family and would wish to leave an inheritance to them of the rewards from the artistic work which we have created over the years. That being the case, we feel the minimum term for copyright should be "life of the artist plus 50 years". If a person’s talent can create an artistic collection of value then it is only proper that their heirs should benefit from that legacy and this allows a just and sufficient time for that to occur. The photographers we represent and many other artists feel the same.

Summary

 

I represent over 40 aerial and aviation photographers all of whom are greatly concerned by any erosion of their IP rights as creators of artistic works which ultimately must provide them with a livelihood.

However just as the misuse of photographs is not restricted by international borders neither is it restricted to photographic professionals as the example in Appendix One makes clear. Put yourself in the same situation as that family; would you like your young children displayed in that way without permission?

I earnestly ask you to consider ways in which the intellectual property rights in photographs and other Artistic Works can be protected and valued so that the creators themselves have the legal authority to set the value, compensation and penalties which should be applied where those rights have been flouted whether innocently or by design.

It is difficult and daunting for individuals such as myself to make an impression on legislators by submissions like this but I know from discussions on several professional email forum how great is the concern throughout the photographic industry that decisions you are taking now could erode IP values and further destroy the livelihoods of photographers in a difficult economic time when half the world has a camera and most of the world wants to use digital images for free.

I therefore ask that any reviewers of legislation have representatives from our trade associations1 on their review panel. The associations are actively concerned in the day to day fears and concerns of their members and, more than most, they can give well considered opinions as to what would be good legislation for the protection of IP in the photographic industry.

I have previously been involved in workshops run by the IPO and have for many years collected a series of web links, examples and stories about the horrors for photographers which can arise from copyright infringement.2

I would be happy to provide further details or clarification on any of the above points if required

Mrs Brenda L Marks

Partner, Skyscan

4th September 2011

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[1] http://www.stop43.org.uk/pages/pages/viralimages/illegal_ads.html

[1] Trade organisations : British Association of Picture Libraries & Agencies; Association of Photographers: Pro-Imaging.org; National Union of Journalists.

[1]

[2] http://photobusinessforum.blogspot.com/2008/05/orphan-works-and-licensing-exclusivity.html and

[2] http://news.bbc.co.uk/1/hi/8094420.stm