Written evidence submitted by Andrew Wiard

I am a freelance photographer. In the days of the 1956 Copyright Act I sat on the British Copyright Council, helping to plan essential photographic reforms. I am now a founder member of the campaigning group Stop 43.

The main points I wish to make, as a photographer, are as follows:

· The economics of Intellectual Property cannot be dealt with in isolation from moral and human rights, or contract law.

· Moral rights should now be implemented in full

· Cultural use of orphan works, and digitisation for archival purposes, should be permitted

· Commercial use of orphans, and the Extended Collective Licensing of works without the author's permission should not be permitted

· A Digital Copyright Exchange should be established to facilitate the identification of creators, and the licensing of IP by creators and rights holders

· A Digital Copyright Exchange should not establish two-tier justice

· An IP Small Claims fast-track should be introduced, and the anomaly whereby Intellectual Property is excluded from fair contract law should be removed.

· Copyright should be an inalienable right

1) Professor Hargreaves was asked to focus on the economics, but it is neither right nor practical to ignore moral and human rights, and contract law. Copyright and moral rights are artists' human rights, guaranteed by the Universal Declaration of Human Rights ( " 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 " ), and it is right that they should be respected. Anyway all IP legislation in the UK now has to be compatible with the UK Human Rights Act. The practical point is that the IP economy is unworkable if IP creators cannot be identified. Or as Hargreaves put it in connection with the proposal for a Digital Copyright Exchange, " ownership information is clearly a prerequisite for the marketplace ". It is also difficult to see how the market can function properly if IP transactions are not subject to fair contract law.

2) The crucial moral right here is the right of paternity - the right for the creator of a copyright work to be identified. This together with the other moral rights was first introduced into statute law by way of the Copyright, Designs and Patent Act 1988. However what one hand gave, the other in large part took away. According to the CDPA moral rights are not automatic but have to be asserted, and are altogether excluded from newspapers, magazines and periodicals. Furthermore moral rights are not un waivable , as they are in other E uropean countries. Until authors of copyright works have the absolute, and enforceable, right to be identified the licensing of these works cannot be straightforward and may even prove impossible. The seemingly intractable problem of orphans makes the point. Full moral rights would go a long way to prevent the future creation of orphans, reducing them to a historical problem. Prevention is better than any conceivable cure.

3) There can be no objection to the copying of works of unknown origin for archival and preservation purposes. Cultural use of such works - non commercial display - should in my opinion also be permitted, even though there are clearly circumstances in which the unidentified author might strongly object to any publication at all.

4) However commercial use without the author's permission of a copyright work, whether declared an orphan, or by way of extended collective licensing, should not be permitted. Not only is it difficult to see how this would be compatible with our international obligations under the Convention of Berne. It is also a direct contravention of the author's human rights. Millions of UK citizens own cameras and/or smart phones. We are all photographers now. While exceptions to human rights may be permitted in the general interest, it cannot possibly be in the interest of the public to strip the public of their human rights. Moreover the thousands of so-called orphans being created daily are only orphans to the one who cannot readily trace the creator. In the case of photography, they are copies of originals still held by the creator who, especially if a professional, will still be marketing other copies. The authorship, in other words, is only unknown to the holder of a copy which - for whatever reason - does not carry the author's name. The most obvious way of avoiding this problem is, as stated above, legislating full moral rights onto the UK statute book.

5) There are other ways. The most important of which would be a Digital Copyright Exchange, and/or other registries which connect copyright works to their authors, as well as making them available for licensing. It is regrettable that it is now being proposed to proceed with legislation for the commercial use of orphans - in any case in breach of our human rights - without ensuring that the protection of a Digital Copyright Exchange is available first. Properly implemented, it should anyway obviate the need for commercial orphan works legislation.

6) Provided, that is, it does not instead become a walled garden within which works there registered receive higher legal protection than those outside. Two tier justice would be wrong in itself and there are better incentives for creators to take part, identification as the author, and commercial opportunities. The government made clear in its reply to Hargreaves that the DCE should be free at the point of use, running costs to be met by a charge on transactions. This is greatly to be welcomed, and essential if the idea, which has such great potential, is to take off.

7) The other steps in my view essential to the smooth running of a market in Intellectual Property are an IP Small Claims fast-track, as recommended by Hargreaves, and fair contract law - available to all, it seems, except IP creators. This clause of the Unfair Contract Terms Act 1977:

" Sections 2 to 4 of this Act do not extend to-(c) any contract so far as it relates to the creation or transfer of a right or interest in any patent, trade mark, copyright [or design right], registered design, technical or commercial information or other intellectual property, or relates to the termination of any such right or interest;"

- must be repealed.

8) Finally, the copyright of the creator should be inalienable. Fair contract law, which does not yet apply to IP, would not in itself be sufficient protection against the demands of corporate clients for individual creators to surrender their copyright. Which is, I repeat, a human right. The only sound equitable basis for creators to trade in their intellectual property is as owners of inalienable copyright, licensing their IP according to fair contract law. Such a system already exists, works, and can be seen to work in Germany today. It is time to introduce this system here.

Recommendations:

1) Implementation of automatic full unwaivable moral rights without exceptions in UK law.

2) Legalising digitisation for archival purposes and the cultural use of orphan works.

3) Rejection of commercial use of orphan works, and extended collective licensing of authors' works without their permission.

4) Establishing a Digital Copyright Exchange, with equal rights for creators both in and outside the DCE.

5) Introducing an IP Small Claims fast-track procedure.

6) Repeal of Schedule 1, clause 1c of the Unfair Contract Terms Act 1977

7) Making copyright the inalienable right of the creator.

5 September 2011