18. It is in this form, and for this purpose, that Authors' Moral Rights and Copyright are established as universal, fundamental human rights and intellectual property rights by the treaties mentioned above, and which oblige their signatories to implement their provisions in domestic law.

MORAL RIGHTS

19. The Authors’ Moral Rights consist as a minimum of the right to assert authorship of work and the right to object to derogatory treatment of work 23 .

20. In the Copyright, Designs and Patents Act 1988 four distinct Moral Rights are recognised 24 :

• The Right to be identified as author or director;

• The Right to object to derogatory treatment of work;

• The Right to object to false attribution of work;

• The Right to privacy of certain photographs and films.

21. The Moral Rights are not automatic but must actively be asserted by the author 25 . Not only is this a breach of the author’s human rights but it also allows for the assumption that without evidence to the contrary, the Moral Rights have not been asserted for any particular work. This assumption facilitates misuse of the work.

22. The Copyright, Designs and Patents Act 1988 lists specific exceptions to Moral Rights 26 , 27 . In particular, these exempt newspapers, magazines and periodicals, and some books from the legal requirement to respect photographers’ Moral Rights. These exceptions clearly breach creators' human rights, are an important factor in the orphaning of photographs, therefore do not operate in the 'general interest', and in the modern digital world are obsolete and should be repealed. Hargreaves ignores this.

ORPHAN WORKS

23. "Orphan work" is a misleading, emotive and ill-defined term which implies that an artistic work has no author and has been "abandoned". It is of course absurd to assert that an artistic work ‘has no author’: someone, somewhere, created it. Deliberate abandonment of work is rare, especially for ‘born-digital’ orphan photographs.

24. There is no reliable permanent definition of an orphan work. Its definition is slippery and varies according to the definer, ranging from being an absolutely anonymous work about which nothing at all is known, to a work of which absolutely everything is known except how to contact the revenant rights-holder, after a ‘diligent search’ has been carried out for that rights-holder.

25. An orphan work only remains so while the rights owner cannot be located by a specific intending user at a specific point in time. Therefore:

26. An orphan work is classified as such by the quality of the search systems that exist at the point the ‘diligent search’ is made.

27. It follows that any attempt by the Government to create a commercial orphan works scheme that does not incorporate adequate search facilities to prevent the deliberate orphaning of works by pirates, or for creators to claim their lost property, would be a deliberate attempt to divorce rights-holders from their property and therefore illegal under the Human Rights Act 1988.

28. A digital orphan work is not a physical object. It can be copied infinitely, and so it is the rights to the work that are traded, not a physical item that can be sold only once. With no statutory register to record the sale of those rights they may end up being sold multiple times. An orphan works scheme with no concomitant register will generate multiple and conflicting rights holders, creating a minefield of legal claims in the market place.

29. Nonetheless, the IPO proposes to make a new definition of the term and has stated its intention to include this in its consultations on implementing Hargreaves’ recommendations 28 .

30. In practice the term ‘orphan work’ actually means ‘an in-copyright work for which the revenant rights-holder cannot at present be found or contacted for permission to use the work by its custodian or potential user’. In most cases the work’s rights-holder knows exactly who he is and where his work is. Most so-called ‘orphan works’ are nothing of the kind: there is simply no extant link between rights-holder, custodian and potential user.

PRESERVATION OF DIGITAL FILE METADATA

31. Digital files can contain ‘metadata’, literally ‘data about data’ in which information such as the author’s name, rights-holder’s contact details, licence terms, caption, and other information can be stored. This metadata is widely used in professional processes such as newspaper, magazine and book publishing, stock image licensing, and so on 29 . It is the primary means by which a rights-holder of a digital file may be traced and licence terms established.

32. It is trivially easy to strip this metadata from all digital image file formats in widespread use.

33. Such metadata stripping is illegal under the Copyright, Designs and Patents Act 1988 Section 296ZG 30 . However, to mount a successful prosecution it is necessary to prove that the data was removed ‘knowingly and without authority’. In practice it is almost impossible to prove this and Stop43 know of no cases brought to court under this Section.

34. Given that metadata stripping is extremely widespread, is carried out as part of the process of posting images to websites run by the BBC 31 and Facebook, among many others, and is acknowledged to be a primary means by which born-digital files become orphaned, it must be concluded that CDPA1988 Section 296ZD is neither effective, proportionate nor dissuasive; but that in fact it is entirely ineffectual.

35. To introduce commercial use of orphan works without effective sanctions against their deliberate orphaning would be like introducing a law allowing you to take any car without a number plate but no balancing law preventing number plate removal. Hargreaves ignored this.

EXTENDED COLLECTIVE LICENSING (ECL)

36. Collective Licensing is the process by which a 'collecting society' negotiates and grants usage rights for the intellectual property of its members. An example is PRS 32 , which sells Licences to play music in public to bars, restaurants and shops, and divides the licence fee equally between its members. It is a system which works well for 'secondary licensing' in circumstances in which it is impractical for a rights-holder to negotiate individual Licences to Use with users.

37. Extended Collective Licensing allows collecting societies to license works belonging to rights-holders who are not members of those societies, have not granted permission for such licensing, may not have heard of the societies’ existence, and do not receive payment of any licence fees.

38. Any collective licensing scheme that extends the licensing of works beyond those of authors who have voluntarily placed their work under the control of a collecting society breaches international copyright 33 and human rights law.

39. WIPO 34 , which is responsible for administering the Berne Convention, TRIPS and other international IP treaties, appears to turn a blind eye to existing extended collective licensing schemes such as DACS' photocopying licence 35 and the Nordic Kopinor 36 ECL scheme in which the vast majority of authors can be expected to be professional, aware of the existence and function of the relevant collecting society, be members of that society, and properly receive remuneration from it for secondary uses such as photocopying that cannot practically be licensed in the normal way.

40. The British Screen Advisory Council's Orphan Works and Orphan Rights paper's Annexe D 37 provides a clear and succinct description of Kopinor ECL, from which it can readily be concluded that the ‘collateral damage’ of illegal orphan works licensing is small, and in practice acceptable in relation to the benefit enjoyed by the vast majority of properly registered authors, as is the ‘collateral damage’ similarly caused by DACS’ schemes.

41. Hargreaves' ECL proposal is the diametric opposite of Kopinor: the vast majority of works will be orphan, not registered with the Digital Copyright Exchange (should it exist), and collecting society members will be reimbursed disproportionately at the expense of the absent orphan authors. No matter how you try to finesse the argument, this is clearly in breach of both the spirit and the letter of the Berne Convention and of authors’ human rights.

42. Hargreaves’ clear intention in his ECL recommendation is for it to supplant primary licensing carried out in the normal way between rights-holder and intending user, in order brutally to enable ‘mass digitisation projects’ by the Cultural Heritage Sector, and ‘innovative Internet startup companies’ to offer ‘new services’ to consumers 38 .

43. ECL attempts to redefine copyright from being the right of the creator to control the making of copies to a right to be paid something for the use of that copy, if he or she is lucky. Creators do not want this: they wish to retain the rights Berne confers upon them, to manage their own copyrights, or negotiate with agents of their choice to do it for them. They do not want the whole process taken out of their hands. It disempowers them, and it will undermine what they get paid, and kill this country's cultural industries.

44. The British Screen Advisory Council's Orphan Works and Orphan Rights paper's Annexe C 39 describes eight possible means by which the commercial use of orphaned works might be legislatively enabled. Of these eight, six definitely breach international law, EU law, or both; one probably breaches Berne; and the remainder only avoids breaking these laws by removing any practical legal remedies against infringement, inviting massive piracy, destroying creators’ and rights-holders’ livelihoods, and of course breaching their human rights.

45. Hargreaves says that ECL:

4.51 …should not be imposed on a sector as a compulsory measure where there is no call for it, and individual creators should always retain the ability to opt out of ECL arrangements 40 .