Hargreaves Review of Intellectual Property

Written evidence submitted by Pete Jenkins

Summary

· Creators moral rights are a pre-requisite to underpin copyright

· Digital Copyright Exchange requires extensive research

· Extended Collected Licensing not for commercial publishing use

Pete Jenkins is a photojournalist with more than thirty years experience. ‘Fleet Street’ newspapers, magazines, books, Public Relations and New Media. From black and white dunk tanks to tethered digital shooting.

Formerly a sports specialist working in London, Pete is now based in Nottingham, East Midlands. His clients include the UK photographic press (amateur and professional); ‘East Midlands’ based businesses (local and international), unions, magazines, newspapers, and anyone else who requires his unique specialist skills.

When not photographing Pete is usually editing, but does find time to give seminars on a wide range of photo related subjects including stock photography and copyright.

Pete Jenkins is a campaigner for photographer/creator rights and want to see Moral Rights underwriting Copyright in the UK, Europe and the world. Photographic Imaging has taken a beating since 1985, and we need to stem the tide of attrition of rates, and the low respect, which so many now have for creators. Re establishing copyright as a basic human right will help us achieve this.

1. The Hargreaves Review, and the official response made to it has Ignored creators moral rights, including the right to be recognised as the author of ones work, and the right to be credited on reproduction of that work largely because this is not seen as financially important.

2. Unfortunately the right to be recognised as the author of ones own work, and for ones work to be credited when shown or published is the bedrock upon which creators base their business. Creators such as authors, photographers, and musicians (and many others) do not sell outright their work but licence it so that it might be used for a specific purpose. It is the licensing system that allows many people to enjoy a work, rather than just one or two, and also allows the creator to earn from his or her work.

3. In the UK at the moment one has to specifically state that one wishes to be recognised as the author of ones own work, and even if one does this, for certain publishing areas – newspapers, magazines and books, outside of the internet the largest pushing areas in which most creatives will be involved, there is still no legal obligation for the author to be credited. This means many thousands of created works published ‘professionally’ are released into the world without the details of their creator.

4. This blatant (and unnecessary) orphaning of work, which means many millions of desirable works are published every year has contributed to what has been described by the library and academic sector as the ‘orphan works’ problem [1] .

5. As the report and response both look at orphan works, and the government proposes brining in an orphan works ‘scheme’, it now highlights the blatant flaw in current UK legislation that requires not only creators to assert their right to be recognised as the authors of their own work, but even when they do this, still allows so many publishers to ignore this basic human right.

6. Orphan works legislation cannot realistically be considered until this absurd situation has been remedied.

7. With regard to copyright licensing the government talks of publishing minimum standards for voluntary codes to be put in place. It also talks of using collecting societies with regard to copyright licensing. These are both causes of alarm amongst creatives.

8. Minimum voluntary standards for publishing? Any standard that is voluntary is immediately a standard that does not have to be recognised, and sets itself up as something that can be ignored. The publishing industry needs much higher standards that need to be enforced. This would be for the benefit of both the consumer, who has seen publishing standards drop so low that very public legal action has been taken (phone tapping scandal), and the creator, who by the nature of being largely small business people with a low turnover and profit are frequently the victim of unscrupulous publishers who attempt to control the rates paid to the their suppliers, and who have been reducing rates in recent years [2] .

9. It has been made clear that self-regulation does not work, most especially in the publishing industry; the overwhelming failure of the Press Complaints Commission is an excellent example [3] .

10. Collecting societies are excellent in assisting creators obtain secondary and tertiary rights for the reproduction and other use of created works, where it is a financial impossibility for the creator to collect rights payments individually. They work well for both the creator and the user. However, whilst collecting societies would be perfect for collecting the payments from say libraries and academia for permissions to digitise work, on no account could Collecting Societies be regarded as suitable for dealing with first use scenarios. Individual creators have terms and conditions, as do individual pieces of work. Some created works will have cost many thousands of pounds to create, whereas others might only have required minimal funding and time. These two individual pieces will inevitably be licensed at different rates, and there is no way of establishing this without recourse to the creator.

11. The orphan works problem as introduced to the publishing sector by libraries and academic institutions is this: "Although national copyright laws in Europe often allow archives and libraries to engage in acts of digital archiving without the consent of the rights holders concerned, permission is usually required if the digitised content is to be disseminated or otherwise made available to the public [4] ."

12. Yet despite this quite clear and non-commercial description of the problem, the government is proposing bringing in a scheme for the commercial licensing of orphan works. Libraries and academic institutions do not require the commercialisation of orphan works according to their own definition.

13. In the United Kingdom today every citizen has the opportunity to be both a publisher and creator, and many millions take advantage of the facilities offered by social networking via the Internet to do both these things.

14. When members of the public publish their thoughts and photographs on sites such as Facebook, Twitter, BEBO, Flickr, MySpace etc, they do not do so expecting publishers to take advantage of their work. Yet according to the many definitions of orphan works used in relation to the Hargreaves report, and work not registered with the Digital Copyright Exchange for example will be regarded as ‘orphan works’ and therefore useable in and extended collected licensing scheme for orphan works.

15. Not only will ordinary members of the public not expect their work to be exploited, but they won’t even be able to benefit from such exploitation as realistically they will not be part of any E.C.L. scheme (nor should they be). In addition no member of the public will be registering his or her work on the DCE database, which immediately creates a two-level copyright structure in the UK. The first and largely professional level, of those works registered in the DCE – what professional would not take up such an offer, and the second non-professional level which comprises most work published on the internet in social networking pages, yet which is easily trawled for material.

16. Newspapers and even the BBC already do trawl social networking sites for material that they believe is both free of copyright and the need to pay, even though this is clearly in contradiction of current copyright laws [5]

Recommendations

1. Moral rights in the UK need to be seriously bolstered and brought up at least to the standard of Germany. All creators should have the automatic right to be recognised as the author of their work, and all creators should have the right to a credit when work is published or displayed.

2. Moral rights should be endorsed and supported in law

3. Commercial use of orphan works is not necessary in order to digitise libraries of work.

4. All use of created works must be referred to the creator.

5. Extended Collected Licensing is not an acceptable option for creators, when it is being used to avoid contact with creators by would be publishers, or simply as an option to obtain ‘low cost’ material.

6. Members of the public produce created works everyday, no copyright solution should ignore their needs, requirements, moral, and human rights.

4 September 2011

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[1] http://www.ivir.nl/publications/vangompel/the_orphan_works_problem.pdf

[1]

[2] http://www.epuk.org/News/891/herald-times-face-more-industrial-action

[2] http://www.epuk.org/News/919/bpc-survey

[2]

[3] http://www.independent.co.uk/news/media/press/pm-signals-end-of-press-complaints-commission-2309210.html

[3]

[4] http://www.ivir.nl/publications/vangompel/the_orphan_works_problem.pdf

[4]

[5] http://pigsonthewing.org.uk/bbc-fundamental-misunderstanding-copyright/

[5] http://www.bjp-online.com/british-journal-of-photography/news/1938870/photographer-accuses-daily-mail-copyright-infringement

[5] http://www.jeremynicholl.com/blog/2010/12/13/uk-daily-mail-faces-million-dollar-us-copyright-suit-from-mavrix-photo/

[5]