Hargreaves Review of Intellectual Property

Written evidence submitted by Darrin Jenkins

I am a professional photographer who makes a living from creating and licensing images. My images have been used for poster campaigns as well as other advertising, online and in marketing material worldwide.

I have had many photographs been used without my permission (or licence given), some of which I have had some success in retrieving a fee for but most of the time it is not commercially viable to chase each offender (thief) as there are no punitive damages awarded by the UK courts, in fact it is often that the thief would end up paying less for the image throughout the courts than the licence fee that I would have charged in the first place.

We need a fast track court system as suggested by Sir Rupert Jackson in his report on improving court costs. If the photographer is not awarded some element of damages court costs can currently far exceed the settled sum.

We need:

A system of Punitive Damages similar to the USA

Strong protection of photographers right to be named as authors of their work, and strong protection of Metadata (copyright names / contact details embedded in the digital files)

Concerning Orphan Works: Laurence Lessing wrote : "In my view, photographers and other existing copyright holders are right to be outraged at the proposal."

The copyright law needs to be clear and unambiguous, one of the frequent failures and costs in simple copyright cases in the USA are caused by lawyers’ arguments over their complex and broad Fair Use clauses. If companies are allowed to 'declare' found images as Orphaned then this will make it a lot harder to contest a breach of moral and copyrights in a UK court. This will have an impact on the photography business as a whole an damaging to the economy as there will less revenue created, not a recipe for recovery. This will just make big businesses easier to get free images when they are perfectly capable of paying a reasonable licence fee to the photographer.

A few more points:

The moral rights of authors are not automatically granted as in other EU countries. (Moral rights are a basic human right and are part of the law of copyright to ensure that you are, amongst other provisions, rightfully acknowledged as the creator of your works.)

Moral rights have still not been made un-waivable as in other EU countries. The right to be identified as the creator of a work should be absolute, the law should prohibit any person or organisation from requiring that the creator waive their moral rights. It is illogical to bring forth legislation for the licensing of orphan works when the law as it stands has no provisions which will prevent or significantly reduce the creation of orphan works

No sanctions are proposed for the removal of digital copyright information from digital works. At present it is necessary to show that removal of digital copyright information has been done with intent to infringe before it can be recognised by the courts as an offence under current UK legislation. Yet worldwide, every day, millions of digital works are having their digital copyright information stripped rendering these works as orphans.

This is morally wrong, it is the equivalent of physically removing a signature from a painting, an act that all would agree was reprehensible. Yet Professor Hargreaves, knowing this, has recommended the commercial exploitation of orphan works. This will only make it more difficult than ever for creators to make a successful business when there is huge resource of orphan works to exploit, a situation which will only get worse as time passes.

The review proposes allowing orphan works to be used for commercial purposes. There is no proven need for orphan works to be commercially exploited, and Professor Hargreaves said that copyright law should be evidence driven. There is no published evidence that shows that UK industries are disadvantaged through being unable to commercially exploit orphan works. There is no doubt a desire with many sectors of the UK industry, such as publishing, to have commercial access to orphan works at a price and on terms below what the rightful owner would require. This is robbing Peter to pay Pay, where Peter is the creator. This is unjust and unfair. There may be a case to permit orphan works to be used for cultural purposes, such as in libraries or museums, providing that a precise definition of cultural use can be defined and agreed.

That remedies for unauthorised use are restricted for those who have not registered their works. Registering creative works at a national level is completely impractical in a global market. It will lead to anomalies of the type already exposed by the US system of copyright registration where a creators remedies for infringement are compromised if they have not registered that work in the USA. If every country were to go down that road, as could happen, creators would be in an impossible situation, needing to register their work in every country, but unable to afford the time and expense of doing so. If registration has to come into the equation it should be a global system

Creators are not given a level playing field with industry. Industry at present can strip digital copyright data from creators work, not credit them, require creators to waive their moral rights or risk losing a contract, assign their copyright or lose a contract, all of which impose grossly unfair terms on the creator.

Moral Rights legislation should be strengthened to make those rights automatic; to remove all exclusions; and to render the rights unwaivable in addition to them being inalienable as they currently are

Effective sanctions are needed against the alteration, stripping or removal of metadata (specifically for ownership and rights information)

A simple and affordable system to be established for pursuing smaller infringement claims and punitive damages for copyright infringements to be introduced into legislation

Artists rights have not been recognised as human rights by Hargreaves IP review. Both the UN and EU Human Rights act have declared that artists rights are also human rights.

6 September 2011