Hargreaves Review of Intellectual Property

Written evidence submitted by Nick Dunmur

Summary

· An effective and affordable legal remedy with easy access be made available in the format of a copyright small claims court

· Moral Rights legislation needs to be strengthened to remove (i) the formal assertion requirement for the Attribution Right; (ii) exclusions for the Attribution and Integrity Rights; and (iii) the contractual ability of a waiver in order to prevent future ‘orphan works’

· The introduction of effective sanctions against those who purposefully and knowingly strip metadata (identifying data within the work) from photographs

· Fewer exceptions to copyright legislation to ensure a better understanding of what is a legitimate use of copyright work

Introduction

1. I am a professional photographer and image-maker working primarily in the fields of advertising and commercial work but with interests and activity in selling my own work in addition. I have always worked for myself and have done so for 23 years. I have in general made a reasonable living as a professional photographer but that position is becoming more and more untenable as the worlds of the internet and digital photography meet, collide, develop and business models change beyond recognition. I work for a range of clients ranging from small design companies to large manufacturers like Triumph Motorcycles, Paul Smith (fashion designer) and Sandtoft Roof Tiles. I make my business work by licensing the work I am commissioned to make for a fee or from selling limited edition art prints of my own pictures. I need to be able to protect my work from unauthorised uses, abuses and mis-uses in order to safeguard the economic viability of my business and to ensure I can offer my clients exclusivity for the work they commission from me. Intellectual property rights are vital to the success of my business. Digital photography and the internet have resulted in a ‘commiditization’ of photography where buyers and commissioners of work are encouraged to buy by ‘unit’, not by ‘use’. One does not have to be in business to understand how that model can only ever benefit the large corporates which can enjoy economies of scale that are simply out of reach to SMEs and individuals working in the creative industries and actively contributing to the UK’s economy and revenues.

Information

2. The Government has already responded to the Hargreaves Report on Intellectual Property and Growth and my comments here also address the Government’s response.

3. I am pleased that the Government has made a commitment to the establishing of a fast-track small claims route for intellectual property (IP) rights infringements via the County Court system. I am, however, deeply concerned that this now appears to have the caveat of being ‘value for money’ attached to it. As creators, we need this small claims route to combat increasing infringement of our IP rights.

4a. Although the issues of Moral Rights and Orphan Works (copyrighted works for which the copyright-owner cannot be identified) were not part of the remit of the Hargreaves Review, Professor Hargreaves and his team saw fit to comment on both. In the UK we as creators/artists do not have the same benefit from moral rights as other EU countries; I have to assert my moral rights. This is wrong – they should be automatic. Granted, they are un-assignable, but they can be waived. Again, this is wrong – they should be un-waivable and beyond the ability of current Contract Law to remove them. As stated in Schedule 1, Clause 1 (c) of the Unfair Contract Terms Act 1977, any rights given under copyright law can be superseded by contract law, making any copyright reforms futile as large corporations will continue to include clauses in their commissioning contracts to over-ride them.

Moral Rights are artists’ rights and also, I believe, enshrined as Human Rights. Both the Declaration of Human Rights and the Covenant on Economic, Social & Cultural Rights refer to "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."

4b. The Hargreaves Review proposes that commercial as well as non-commercial, cultural use of Orphan Works be allowed. This is unacceptable. There is no defence in the argument that just because the rights-holder or copyright-owner of a work cannot be found that that should allow that work to be used for commercial gain by a third-party. There is NO published evidence to show that UK companies are disadvantaged by not being allowed to commercially exploit someone else’s work without their permission. Given that Professor Hargreaves has stated publicly on a number of occasions that he wanted the Review to be evidence-based, this flies in the face of that completely. If you really want to see growth in the creative industries, then commission an original work from a creator. It is no surprise that those pushing for commercial use of Orphan Works and arguing that current copyright and IP legislation ‘stifles’ innovation are those large corporate entities (Google, the British Library, the BBC) who would benefit massively from exploitation of Orphan Works. The Hargreaves Review uses the word ‘innovation’ without really ever understanding what is meant by that. Being ‘innovative’ is NOT about taking someone else’s work and re-hashing it, copying it, breaking it up and ultimately passing it off as something new – that is simply laziness at best and deceitful, sometimes criminal at worst. Creators and artists innovate all the time – that is part of being a creative person or running a creative business and it is the creative industries, the artists, the creators – the makers, that need support and legislation that protects our work and allows us to grow and make sustainable businesses.

5. There are no sanctions proposed for the unauthorised removal of metadata (data contained within a digital file which describes that file and which can contain copyright information, creator’s details and much, much more) therefore allowing the further creation of Orphan Works to continue. Presently, it has to be shown that any metadata removed from a file was done so with intent to infringe the IP rights in that file before it can be recognised as an offence in the UK courts. A ten-year old could wriggle their way out of that. It is a nonsense. Removing metadata creates Orphan Works. Metadata is incredibly useful in providing a wealth of information about an image, a book, a text, a piece of music and is of benefit to both the creator and the consumer. We need legislation to enshrine that and make it far more robust that it is at present.

6. If an exception to copyright law is made for private copying, then it needs to be made very clear what is allowable under such a change. I agree that here, there is a need for change in some sectors and that this step would instantly de-criminalise a large sector of the population and bring the law up to date.

Conclusion

There is not a great deal wrong with current copyright law. It needs a little modernising but there a few simple changes that can and should be made to ensure that creators (and after all, that includes everyone, not just those who might earn a living from what they create) are afforded proper respect and protection from the law. Here’s a simple list of what can and should be done;

· Equal bargaining power between commissioners/users and suppliers be facilitated by a change in Unfair Contract Terms legislation to now include IP

· The UK Government, and the bodies it wholly or partly funds, set an example by accepting licenses and end the current widespread practice of seeking copyright assignments and moral rights waivers

· Moral Rights legislation needs to be strengthened to remove (i) the formal assertion requirement for the Attribution Right; (ii) exclusions for the Attribution and Integrity Rights; and (iii) the contractual ability of a waiver in order to prevent future ‘orphan works’

· The introduction of effective sanctions against those who purposefully and knowingly strip metadata (identifying data within the work) from photographs

· Funding to be made available to aid research into stronger, universal software to input and maintain robust metadata into all types of digital image formats

· Fewer exceptions to copyright legislation to ensure a better understanding of what is a legitimate use of copyright work

· A punitive element be introduced into copyright legislation to deter infringements, particularly in the digital domain

· An effective and affordable legal remedy with easy access be made available in the format of a copyright small claims court

· Mandatory copyright education in schools and Further Education/Higher Education establishments

· A Government-led public-facing copyright and IP rights education campaign

4 September 2011