Hargreaves Review of Intellectual Property

Written evidence submitted by Gavin Kemp

1. Summary:

2. This document gives:

· An outline to my photographic business, it details the sectors I work in.

· It gives a details of how the Hargreaves Review will affect my business at a practical level, both in areas of my day to day work where it will add cost and reduce the protection afforded to my clients images.

· There are other details of my personal work that will create an archive and which will contribute to my own pension provision, and how the reduced protection given to me and to other photographers will affect my/our pension incomes.

· The latter part of the document provides a two part solutions to the problem of Orphan works. The first part solution being licensing all those who wish to reclaim works previously considered to be orphan works.

· A second part of this solution is the identification of work by the legal requirement for metadata to be present in all images intended for commercial exploitation.

3. Details about my business.

4. I am a freelance photographer working in the fashion industry, based in the Midlands and London, my was company started in 2004 and became my photographic business in 2006, in 2009 following the completion of an MA in Fashion Photography at London College the business has grown. I also possess an MSc in Marketing Management from previous employment. I have worked in or have had first hand involvement in the creative industries for approximately 25 years.

5. My Current Practice and the Implications for me and my clients of the new Hargreaves Review proposals.

6. My work falls into 2 categories, firstly commissioned work for clients, secondly my personal body of work. My client work is for fashion designers, brands, on-line sellers and other clients. My personal work and archive is the work I produce for my own personal exploitation that is for exhibition and publication, it also that provides a vehicle for my own creative enquiry and expression. My business has 2 clear strands to it, my client work and my personal work.

7. The seasonal nature of designers collections, and commercial collections produced by clients means that the longevity of the revenue streams from client work is dependent on new seasons and replacement collections for new work to being generated. That in my commercial activity is the expected route for my new business to be generated.

8. As the proposals in the Hargreaves Review stand to protect my clients images, rather than add value, it adds cost as the business will need to charge clients to put their work on databases to register owner ship, if for no other reason than the time taken to register work. This process rather than adding value will adds cost, this is not adding profit eligible for taxation but creating a tax neutral position, if these costs were not to be passed on they would be costs set against tax and come out of profit and therefore taxable revenue available to the government will fall.

9. There is already considerable deliberate orphaning of work produced by fashion photographers. This usually takes the form of the routine and systematic scanning the pages of the main high street fashion magazines, these scans being made available on-line. In some cases the creation of the original work can run into tens of thousands of pounds (and in a few exceptional cases potentially more). As my business grows and my work continues I expect this to be a problem I will need to deal with within 3 years.

10. The nature of my personal work is very different from my commercial work, this is artistic work, intended for exhibition, publication through books, on line, and for private sale. This growing body of work and the archive generated will increase over the next 15 years. It is expected to provide me with income that can contribute to my pension and upon retirement provide further revenues from sales. The proposals in the Hargreaves report provide others with access to my work that will not allow me to protect my pension. Every photographers archive is their pension, weakening this revenue potentially provides a liability to the state through the benefits system.

11. With no protection of my moral rights to my work, no penalty on those who remove the metadata in my work, and no protection of my property rights in my work (in the from of copyright) that is clearly in breach of Article 1 of the First Protocol of the Human Rights Act 1988 as defined and identified in the case of 20C Fox vs. BT this year, I can’t protect my work and revenue.

12. As a working professional photographer I am aware that as defined by the copyright, designs and Patent Act 1988 copyright is a property right. This right is protected through the Human Rights Act. The importance of this has been shown in of 20C Fox vs. BT where The Hon. Mr. Justice Arnold made the clear link between Copyright and the Human Rights Act. To ignore this simply provokes legal challenge.

13. The Human Right Act in protecting copyright is protecting people who are seeking to generate business in the UK, who are seeking to exploit and grow their businesses. These businesses are taxable, paying corporation tax, VAT, and the individuals within them paying tax on their income. To threaten this has the potential to reduce taxation payable to the government.

14. It is very clear that through the Hargreaves Review and the weakening or removal of the protection that I am currently afforded through existing legislation, it will reduce my own ability to make provision for my old age through work currently being produced. There are also potential losses to The Exchequer that will need to be mitigated before the changes in legislation may be deemed a commercial success for the Government.

15. Solutions

16. Solving the Orphan Works Problem whilst also creating new businesses and new technology for exploitation.

17. There is a clear need to enable a large number of archives of Orphan Works to be exploited where the creator of original work can't be found. For many organisations (museums, educational establishments etc) these are already held as physical items, not having access to these digitally is clearly a nonsense.

18. An manageable route, that is already proven in many areas is to licence certain groups or organisations to digitise what are currently orphan works to bring them back into commercial use.

19. Other areas where licensing works well and is controlled at one extreme 'Super Complaints' where only designated organisation can a super Complaint. In a mass market to the licensing of sellers of alcohol is mass solution for a large number of providers. There are many existing licensing models that can be quickly and readily applied.

20. A licensing system for prescribed groups or organisations to digitise orphan works will provide a controlled and managed solution to this problem. This approach will if the UK were first to implement it ahead of EU proposals in 2014 create a specialist body of knowledge, technology, services and new businesses that can be sold into Europe as EU copyright changes come into force over the coming 10 years.

21. Depending on how a licensing system was designed and managed it would create new specialist businesses solely or the digitisation of large and small archives and other collections.

22. An in many other environments licences are provided at a price, the price of a licence can be determined by a number of factors, these could include: the size of the organisation, if it’s a private commercial organisation, a public body, a charity, a museum. It could also be determined as a single or multiple licence based the type material to be digitised and reclaimed (still photographs, film, paintings or other items), A further determinant could be the expected commercial value of that licence to an organisation whose business is the digitisation of material and the expected commercial reward gained.

23. A licensing process will have the additional benefits of providing codes of practice, direction and leadership from the body providing licenses, industry regulation, plus the most important benefit of all it could be made to be entirely self funding.

24. Solutions - Metadata and Deliberate Orphaning of images.

25. Valuable items open to be stolen such as cars are required to be identified in a number of ways, Number plates, VIN numbers and identifiers, similar technologies are applied to other items of plant and equipment and other items of property. It is easy to steal images and with the low technical demands of the internet easy and relatively risk free to exploit them once stolen.

26. Metadata can be directly compared to an images VIN number, number plates and other serial numbers carried on the vehicle.

27. Stripping the meta data from an image is simple process, this process quickly and deliberately ‘orphans’ images.

28. A better approach would be to require all images intended for commercial exploitation to be required by law to carry meta data, and for it's removal to be made a criminal offence. It is easy to add metadata. Information to be carried by law could include the details such as creator, contact details and serial number of the camera used for the creation of the image and date to be found in each image for commercial exploitation.

29. This would then allow for a legal requirement for every image that is used in the UK for commercial exploitation can only be used if contains the original creators metadata. Without this data it would be a criminal offence to use the image. This would put any user of an image in any in breach of the law if the image was used. This will protect the artist and simplify the search process users of image, and users of images would be able to do so with certainty.

30. Adding meta data is a simple process and can be done by the artist. For this to be required as of say January 1st 2015 it would by default identify all images available for commercial use or exploitation. This approach would create new images, new work and additional stock will need to be built up.

31. This approach will also protect large numbers of people creating new images every year that lack meta data – including unknowing members of the general public and members of the amateur photography community who do not routinely add meta data from having their images stolen and used. It will also protect images never intended for commercial use. This is the easy solution that protects the greatest number of people, and make the safe and legitimate exploitation of images intended for commercial use very easy.

32. Communication of the message that if an image has no metadata as of a certain date it is not available for commercial use is a simple message with no areas for interpretation. This is both a simple and practical solution that in one go allows for the protection of the artists moral rights, and also sits neatly with Article 1 of the Human Rights Act.

33. Together these two solutions will: allow access to vast numbers of works and archives not currently available, do not require the costly creation of data bases of vast numbers of works that may never get resold. It also avoids the creation of mass libraries of original works that may never be used or reproduced. That is in effect creating a library where there is an exponential growth and unrestricted growth in the numbers of 'books' turning up at the doors.

34. This solution neatly sidesteps any implications of the Human Rights Act that has already been demonstrated as relevant in this area as copyright is a property right as defined by the Act.

35. Using this approach will stimulate the creation of new services and technologies that can be sold into Europe as the intellectual property legislation changes in the EU, giving the UK a competitive advantage having had opportunity to test and develop it first.

36. This provides new streams of revenue for the government, thorough licensing, new businesses and new streams of revenue to existing business that will be subject to taxation. These new streams of revenue will be a clearly identifiable as a measure of the success of the changes in the legislation that ministers could rightly claim the credit for.

37. On a bigger scale it also provides a model that could be suitable for consideration at a European level that follow in the years after implication of the changes to legislation in the UK.

38. The power of the simplicity of these two solutions.

39. These two solutions provide considerable benefits with careful consideration, (that is both hidden and easily overlooked by the simplicity of the two individual elements), together solve all the problems of Orphan Works, and associated difficulties faced by photographers as the proposals currently stand. They also directly brings revenue to the government, whilst also allowing for other streams of taxation.

4 September 2011