Written evidence submitted by John Walmsley

I have been a freelance photographer my whole working life, since 1968, and my income derives almost entirely from licencing my own images.  Because I’ve always worked in education, my income has never been above the national average and last year was just £16k.  In recent years I’ve seen the number of IP infringements increase and my income decrease.  They are connected events in my view.

1.  No effective recourse against IP infringers.

A shoplifter is caught with the stolen goods.  He gives them back and that’s the end of the matter.  I don’t think parliament would ever pass laws which would allow this outcome.  But they have.  This is exactly how the law applies to IP infringers.  If someone infringes my IP, which is theft, all I can claim is the original fee. 

An EU Directive requires UK law to be "...effective, proportionate and dissuasive...".   The bad news is, at present, our laws do not meet this requirement.  The good news is we do now have an opportunity to put it right.  If someone infringes my IP by using my photos without permission or payment, the law allows me to charge only the fee they would have paid if they’d asked in the beginning.  So, from the infringers point of view, they really have nothing to lose.  It is to their clear benefit and my clear loss.  Hardly dissuasive.  Newspapers now adopt this approach en masse.  In previous times they would tell you when they’d used a photo so you could invoice.  Now nearly all of them don’t tell you.  The photographer is left to find about it.  If you don’t notice the use, you can’t invoice.  They’ve been told by the courts this is illegal but they quietly ignore it. 

The result is what so many IP holders face today, an avalanche of IP infringements.  I spend at least half a day a week chasing infringers, a complete waste of my time.  This week I’m chasing seven cases, one may be someone who just didn’t think but the others are all commercial companies who I think would have known what they’re doing.  Two have stolen the image from another website (which has permission) and have used it on theirs.  The image contains my visible copyright information (Education Photos     (c) John Walmsley) within the image area and they have both displayed the image with this information clearly visible so they do know it’s copyrighted material.  It’s a flagrant IP infringement.  They know what they’re doing and know there’s no dissuasive sanction I can take under the present laws.  They’re laughing at all of us, photographers and politicians.

In many other countries, the States and Germany to name just two, there are substantive laws which allow the IP holders to chase infringers for proportionate and dissuasive redress.  The EU requires we also have that in the UK so we must do it.

2.  Orphan Works for non-commercial use only.

Orphan works is fine for non-commercial use when applied to university libraries’ collections of old manuscripts and images etc..  It is wholely inappropriate to even think of applying it to modern day photographs all of which are within copyright (death plus 70 years).  Modern day photos are all owned by someone.  They are certainly not orphans.

First, we need a law which makes it a clear criminal offence to strip metadata.  Metadata is necessary to identify who owns the IP.  If metadata is present in all photos, OW would not apply to them.  So, retaining metadata is absolutely and fundamentally crucial.  Outlawing metadata stripping is the rock on which all other provisions rest.  Unless parliament produces a law to guarantee this, we would continue with the present thieves’ charter.  Not parliament’s finest hour.  Three of my present cases come from people stripping metadata, using the photo on their site and then others copying it.  Those who have copied it could easily claim they had no idea who owned the photo as there’s no metadata.  It’s a ridiculous situation.

The other reason, as I see it, that OW must never be applied to modern day photos is for the sake of the people in the pictures especially if they’re minors (under 18 years of age).  I take lots of photos of young people usually in schools and colleges.  They are taken with the young people’s and their parents’ permissions.  They go in my library and are used in school textbooks, government departments publications and on websites to do with education.  Each use is OKed by me personally.  If I don’t like the context, the photo is not used.  This helps guarantee the wellbeing of those young people in that they’re not embarrassed or ridiculed by an inappropriate use.  If someone strips the metadata and passes one of these photos around, the next person has no idea who owns it and cannot contact me for permission.  Under OW proposed legislation, they would be free to use those images as they wish.  The outcome for the people in the photos could be dreadful.  You cannot seriously consider allowing this sort of legislation.  Imagine if your young son or daughter were in those photos.  How would you explain why you voted for it?