Business, Innovation & SkillsWritten evidence submitted by Stop43

Executive Summary

This submission consists of:

A description of the human rights obstacles to the commercial use of orphan works and Extended Collective Licensing of works.

Brief introductions to copyright, moral rights, orphan works, digital file metadata, and Extended Collective Licensing (ECL).

New evidence of the scale of the piracy problem for photographs.

Observations on nature of those pressing for commercial use of orphan works and ECL and their reasons for doing so; that legalised piracy is theft; the problems of commercial use of orphan photographs; parody; format shifting; fair contract law; and the Intellectual Property Office.

It concludes with a list of Recommendations.

About Stop43

Stop43 is composed of members of Artists’ Bill of Rights, The Association of Illustrators, The Association of Photographers, The British Institute of Professional Photography, The British Press Photographers’ Association, Copyright Action, EPUK, The National Union of Journalists, and Pro-Imaging: professionals who were sufficiently concerned and motivated by the threat that Digital Economy Bill Clause 43 posed to our livelihoods that we took direct action. We had the support of the 16,000 members of the ten organisations listed on our website, and that of thousands of photographers, as proven by their direct lobbying action that resulted in Clause 43 being removed from the Digital Economy Bill. Since then we have been joined by professional illustrators and members of the cultural heritage sector who understand and support our position and have contributed to this submission. Stop43 have a mandate to lobby for our 8 tenets from the 2,100+ members of our Facebook Group.

Human Rights

1. Authors’ Moral Rights and Copyright are human rights, guaranteed by and enshrined in international, EU and UK laws including:

The Universal Declaration of Human Rights, Article 27;1

The International Covenant on Economic, Social and Cultural Rights, Article 15;2

The Charter of Fundamental Rights of the European Union, Article 17;3

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 1;4

The European Convention on Human Rights, Article 1 of the First Protocol;5 and

Article 1 of the First Protocol of the Human Rights Act 1998.6

2. The Human Rights Act 19987 restrains the Government from introducing legislation that is not compliant with human rights legislation, and indeed reading Section 68 it may be unlawful for civil servants even to draw up such legislation.

3. When asked at a pre-consultation meeting on 23 August 2011 attended by Stop43, among others, Matthew Cope of the Intellectual Property Office confirmed that new UK legislation must be compliant with the Human Rights Act 1998.

4. Any exception to a human right must be limited, in the “general interest”,9 and proportionate.10

5. For an exception to be proportionate it must be demonstrated that the means used to impair the right or freedom are no more than is necessary to accomplish the objective.11

6. All UK legislation must comply with human rights legislation.

7. Any legislation which would breach human rights disproportionately would be illegal under the Human Rights Act 1998.

8. Commercial use of so-called “orphan works”, and blanket Extended Collective Licensing of works, would breach authors’ human rights unless an exception is made “in the general interest”. It would also breach international and EU copyright law.

9. In the Facebook and Twitter era in which anyone with a smartphone is an author and rights-holder of copyright works the majority of the population will be negatively affected, therefore it is not in the “general interest” to create exceptions to human rights to facilitate such use and such licensing. Rather;

10. The “general interest” can be served by strengthening authors’ Moral Rights and Copyright; introducing “effective, proportionate and dissuasive” remedies for copyright infringement as required by EU Directive 2004/48/EC;12 legalising the digitisation of all works for preservation and cultural access (non-commercial use of orphan works can stimulate economic growth);13 and the legislative creation of a Digital Rights Registry which can also serve as the basis for new markets for digital rights, and thereby stimulate economic growth, by:

being a free, online machine-searchable metadata registry to facilitate Diligent Search for rights-holders that by way of a revokable statutory licence also makes cultural digital Intellectual Property including so-called “orphan works” freely available to the public for their Cultural Use;

enabling rights-holders to find and readopt their “orphan works” and make them commercially licensable;

educating the public about Intellectual Property Rights and enforcing digital copyright law;

streamlining the licensing process; and

acting as a market-making infrastructure strengthening the entire cultural Intellectual Property sector, self-funded by levies on licensing transactions that it facilitates.

11. Stop43 described such a registry in our submission to Hargreaves,14 which we called the National Cultural Archive. Hargreaves took this proposal and used some of it as the basis of his Digital Copyright Exchange recommendation. In its Response the Government accepted this recommendation, with crucial caveats.

12. However, the Intellectual Property Office has stated that the Government does not intend to legislate for the creation of a Digital Rights Registry/Digital Copyright Exchange.15 In so doing it will not include vital facilities and structure including “diligent search” facilities necessary in the networked digital era to protect the Moral Rights and Copyright of rights-holders, and therefore their human rights, in forthcoming legislation.

13. In light of the above, any proposed legislation to enable the commercial use of Orphan Works, and blanket Extended Collective Licensing of works, would fail the legal three-stage test of proportionality, breach authors’ human rights disproportionately, and therefore be illegal under the Human Rights Act 1998.

Copyright

14. Copyright consists of human rights, moral rights, property rights and economic rights.

15. As well as being conferred by the human rights laws, charters and treaties mentioned above, Copyright and Moral Rights are granted automatically and without formality to authors by international, EU and UK laws including:

The Berne Convention for the Protection of Literary and Artistic Works.16

WTO TRIPS.17

The EU Copyright Directive 2001/29/EC.18

The Copyright, Designs and Patents Act 1988.19

16. Any exceptions to copyright must pass the Three-Step Test20 incorporated into the Berne Convention and WTO TRIPS.

17. The fundamental purpose of copyright is not, as some assert,21 to incentivise the creator for the public good, or to “promote innovation”. It is to protect the creator’s human, moral, property and economic rights.22

18. It is in this form, and for this purpose, that Authors’ Moral Rights and Copyright are established as universal, fundamental human rights and intellectual property rights by the treaties mentioned above, and which oblige their signatories to implement their provisions in domestic law.

Moral Rights

19. The Authors’ Moral Rights consist as a minimum of the right to assert authorship of work and the right to object to derogatory treatment of work.23

20. In the Copyright, Designs and Patents Act 1988 four distinct Moral Rights are recognised:24

The Right to be identified as author or director;

The Right to object to derogatory treatment of work;

The Right to object to false attribution of work;

The Right to privacy of certain photographs and films.

21. The Moral Rights are not automatic but must actively be asserted by the author.25 Not only is this a breach of the author’s human rights but it also allows for the assumption that without evidence to the contrary, the Moral Rights have not been asserted for any particular work. This assumption facilitates misuse of the work.

22. The Copyright, Designs and Patents Act 1988 lists specific exceptions to Moral Rights.26 , 27 In particular, these exempt newspapers, magazines and periodicals, and some books from the legal requirement to respect photographers’ Moral Rights. These exceptions clearly breach creators’ human rights, are an important factor in the orphaning of photographs, therefore do not operate in the “general interest”, and in the modern digital world are obsolete and should be repealed. Hargreaves ignores this.

Orphan Works

23. “Orphan work” is a misleading, emotive and ill-defined term which implies that an artistic work has no author and has been “abandoned”. It is of course absurd to assert that an artistic work “has no author”: someone, somewhere, created it. Deliberate abandonment of work is rare, especially for “born-digital” orphan photographs.

24. There is no reliable permanent definition of an orphan work. Its definition is slippery and varies according to the definer, ranging from being an absolutely anonymous work about which nothing at all is known, to a work of which absolutely everything is known except how to contact the revenant rights-holder, after a “diligent search” has been carried out for that rights-holder.

25. An orphan work only remains so while the rights owner cannot be located by a specific intending user at a specific point in time. Therefore:

26. An orphan work is classified as such by the quality of the search systems that exist at the point the “diligent search” is made.

27. It follows that any attempt by the Government to create a commercial orphan works scheme that does not incorporate adequate search facilities to prevent the deliberate orphaning of works by pirates, or for creators to claim their lost property, would be a deliberate attempt to divorce rights-holders from their property and therefore illegal under the Human Rights Act 1988.

28. A digital orphan work is not a physical object. It can be copied infinitely, and so it is the rights to the work that are traded, not a physical item that can be sold only once. With no statutory register to record the sale of those rights they may end up being sold multiple times. An orphan works scheme with no concomitant register will generate multiple and conflicting rights holders, creating a minefield of legal claims in the market place.

29. Nonetheless, the IPO proposes to make a new definition of the term and has stated its intention to include this in its consultations on implementing Hargreaves’ recommendations.28

30. In practice the term “orphan work” actually means “an in-copyright work for which the revenant rights-holder cannot at present be found or contacted for permission to use the work by its custodian or potential user”. In most cases the work’s rights-holder knows exactly who he is and where his work is. Most so-called “orphan works” are nothing of the kind: there is simply no extant link between rights-holder, custodian and potential user.

Preservation of Digital File Metadata

31. Digital files can contain “metadata”, literally “data about data” in which information such as the author’s name, rights-holder’s contact details, licence terms, caption, and other information can be stored. This metadata is widely used in professional processes such as newspaper, magazine and book publishing, stock image licensing, and so on.29 It is the primary means by which a rights-holder of a digital file may be traced and licence terms established.

32. It is trivially easy to strip this metadata from all digital image file formats in widespread use.

33. Such metadata stripping is illegal under the Copyright, Designs and Patents Act 1988 Section 296ZG.30 However, to mount a successful prosecution it is necessary to prove that the data was removed “knowingly and without authority”. In practice it is almost impossible to prove this and Stop43 know of no cases brought to court under this Section.

34. Given that metadata stripping is extremely widespread, is carried out as part of the process of posting images to websites run by the BBC31 and Facebook, among many others, and is acknowledged to be a primary means by which born-digital files become orphaned, it must be concluded that CDPA1988 Section 296ZD is neither effective, proportionate nor dissuasive; but that in fact it is entirely ineffectual.

35. To introduce commercial use of orphan works without effective sanctions against their deliberate orphaning would be like introducing a law allowing you to take any car without a number plate but no balancing law preventing number plate removal. Hargreaves ignored this.

Extended Collective Licensing (ECL)

36. Collective Licensing is the process by which a “collecting society” negotiates and grants usage rights for the intellectual property of its members. An example is PRS,32 which sells Licences to play music in public to bars, restaurants and shops, and divides the licence fee equally between its members. It is a system which works well for “secondary licensing” in circumstances in which it is impractical for a rights-holder to negotiate individual Licences to Use with users.

37. Extended Collective Licensing allows collecting societies to license works belonging to rights-holders who are not members of those societies, have not granted permission for such licensing, may not have heard of the societies’ existence, and do not receive payment of any licence fees.

38. Any collective licensing scheme that extends the licensing of works beyond those of authors who have voluntarily placed their work under the control of a collecting society breaches international copyright33 and human rights law.

39. WIPO,34 which is responsible for administering the Berne Convention, TRIPS and other international IP treaties, appears to turn a blind eye to existing extended collective licensing schemes such as DACS’ photocopying licence35 and the Nordic Kopinor36 ECL scheme in which the vast majority of authors can be expected to be professional, aware of the existence and function of the relevant collecting society, be members of that society, and properly receive remuneration from it for secondary uses such as photocopying that cannot practically be licensed in the normal way.

40. The British Screen Advisory Council’s Orphan Works and Orphan Rights paper’s Annexe D37 provides a clear and succinct description of Kopinor ECL, from which it can readily be concluded that the “collateral damage” of illegal orphan works licensing is small, and in practice acceptable in relation to the benefit enjoyed by the vast majority of properly registered authors, as is the “collateral damage” similarly caused by DACS’ schemes.

41. Hargreaves’ ECL proposal is the diametric opposite of Kopinor: the vast majority of works will be orphan, not registered with the Digital Copyright Exchange (should it exist), and collecting society members will be reimbursed disproportionately at the expense of the absent orphan authors. No matter how you try to finesse the argument, this is clearly in breach of both the spirit and the letter of the Berne Convention and of authors’ human rights.

42. Hargreaves’ clear intention in his ECL recommendation is for it to supplant primary licensing carried out in the normal way between rights-holder and intending user, in order brutally to enable “mass digitisation projects” by the Cultural Heritage Sector, and “innovative Internet startup companies” to offer “new services” to consumers.38

43. ECL attempts to redefine copyright from being the right of the creator to control the making of copies to a right to be paid something for the use of that copy, if he or she is lucky. Creators do not want this: they wish to retain the rights Berne confers upon them, to manage their own copyrights, or negotiate with agents of their choice to do it for them. They do not want the whole process taken out of their hands. It disempowers them, and it will undermine what they get paid, and kill this country’s cultural industries.

44. The British Screen Advisory Council’s Orphan Works and Orphan Rights paper’s Annexe C39 describes eight possible means by which the commercial use of orphaned works might be legislatively enabled. Of these eight, six definitely breach international law, EU law, or both; one probably breaches Berne; and the remainder only avoids breaking these laws by removing any practical legal remedies against infringement, inviting massive piracy, destroying creators’ and rights-holders’ livelihoods, and of course breaching their human rights.

45. Hargreaves says that ECL:

4.51 …should not be imposed on a sector as a compulsory measure where there is no call for it, and individual creators should always retain the ability to opt out of ECL arrangements.40

46. Who constitutes a “sector”? Who will make the call? How will it be made? What happens if aggregators and marketers “call” for it, but creators and rights-holders do not? Must the call be unanimous, or will large vested interests prevail?

Piracy of Photographs: New Evidence of the Scale of the Problem

47. The recent introduction of Google Image Search, by which a photograph can be uploaded to Google, analysed by image recognition software, and online uses of that image displayed in search results, finally allows photographers to get a proper understanding of the scale of piracy to which they are subject. This facility was not available for public use when Hargreaves conducted his review. The results are shocking and entirely contradict Hargreaves’ assertions. Hargreaves says:

8.19 Another way of looking at economic impact of copyright infringement is to calculate it with regard to the creative industries, rather than to the whole economy, in order to assess the sectoral point of view. A study conducted for Business Action to Stop Counterfeiting and Piracy (BASCAP) puts a value on losses from piracy equivalent to 1.24% of the contribution that the core copyright industries make to the UK economy. We have examined this frequently cited study and found a number of methodological limitations, which together indicate likely overstatement of the extent and impact of piracy. This suggests that the 1.24% figure is also at the upper end of probability.

8.23 What conclusions can we draw from these wildly differing perspectives? Certainly that many creative businesses are experiencing turbulence, which translates into fears about the further, future impact of copyright infringement on sales, profitability and sources of investment. However, at the level of the whole economy or even at the level of whole creative business sectors, the measured impacts to date are not as stark as is sometimes suggested by the language used to describe them.

48. In just one day, photographers posted this evidence to EPUK,41 a professional photographers’ email list:

“I have just done a quick Google Image search on my ‘most popular’ image and got 173 hits. I reckon out of all of these only a couple are properly licensed. This image was a problem from day one. As soon as it was published in the Sun and then on the Daily Mail website, it was stolen immediately. The agency tried to follow up the usages but it just got out of control very quickly. The agency is no more so I do follow up on the odd infringement where I can trace the website. If I could trace down all of the usages and get paid for them, then I would be a very rich man”.42

“I have dropped about 20 images into GIS. Four of those images have thrown up numerous unauthorised web uses. For example, I dropped an image into GIS and got 103 uses, probably 80% blogs (?) 10% foreign language russian, japanese, anyway stuff I couldn’t understand and at least five commercial websites of which four were small UK websites and one London travel booking agency Another image produced 30 + uses, everything ranging from newspapers websites that have forgotten to pay Alamy to UK, US on line magazines, Doctors healthcare websites. Some online game website.”43

“Just done the same for one of my Two Fat Ladies pics.....70 GIS hits. Some [photo agency] REX and [photo stock library] Alamy sales which have been paid for but MOST are from Greek and Turkish web sites....from looking at the pics used it looks like someone has scanned a newspaper repro, you can see back to front print text showing through the image, and then just bunged it up and now everyone is using the pics.....do I spend time chasing the southern european blaggers for tuppence, ignore and only go for the thieves most likely to pay, such as The Irish Medical Times.....as well as Greek-Turkish there seems to be Hungarian ( I think ) and mis use in the far east as well.”44

“Well, do you remember the stolen picture on the University crime fighting page45 ... I’ve just done a search for images like it and there are 153 results. I’m not sure if that’s 153 users or 153 pages of users, all I know is its almost all the same image, its my image and few or none of them have paid for it. There are hundreds of them.”

“I have just run my calculator across those 153 stolen images from the image results. If they had bought through my shopping cart at my standard price that would be 300 pounds each...... 153 x300 is £45,900! That’s absolutely staggering .... £45,900 just for one image and the results from just one image search!”

“I have clearly had more stolen than ever paid for and I am owed much more than I have ever earned, certainly 100s of thousands and maybe millions if it were possible to trace every stolen image. It explains how I have 1.3 million visitors to my main website in a year but only sell one or two images a week! Since my nightmare experience of actually taking somebody to court I have pretty much ignored theft and only contacted less than half a dozen infringers who have particularly hacked me off. I knew the problem was widespread but not this widespread. Its no wonder I live in poverty despite being reasonably successful in my field.”46

49. It is clear from this evidence that piracy of photographs, including commercial piracy, is a much larger problem resulting in far greater loss of earnings for photographic rights-holders than Hargreaves asserts. To paraphrase Hargreaves, the measured impacts to date are far more stark than is sometimes suggested by the language previously used to describe them.

50. Furthermore, this is a loss for the UK economy as a whole, as a significant proportion of unauthorised uses are non-UK. Just look at the search results.

Who is Pressing for Commercial Use of Orphan Works and ECL?

51. In the private sector, many “Web 2.0” companies are predicated upon the assumption of free commercial use of other people’s property without payment to them:

Colbert: “[laughing] The hybrid economy is where everybody else does the work and Flickr makes the money!”

Lessig: “Don’t tell anyone!”—Creative Commons47 founder, Harvard academic and outspoken critic of copyright Lester Lawrence Lessig III,48 interviewed on the Colbert Report, 8 January 2009.49

52. The basic principle of the “hybrid” economy is that the general public (lawfully or unlawfully) creates content and posts it [to the website of a Web 2.0 company], or gives up its privacy to enrich the Web 2.0 company. The company gets rich and the users who create the content do not.

Who would do this? Maybe those who [Facebook founder] Mark Zuckerberg apocryphally50 referred to “Dumb F***s”? Let’s call them “Zucks”. So maybe it is about the Zucks. Lessig pretty much says this to Colbert’s great amusement...

What does free content mean to Web 2.0 companies? Profit. Imagine the board room conversation: “So if we could just find a way to get these Zucks to create the content for free and then we sell it!”

...there isn’t enough advertising money to pay arms-length licensing fees for all that content—and then, of course, you’d have to take the time to negotiate the licenses.51

53. The Cultural Heritage Sector (CHS) is intent on undertaking “mass digitisation projects” of traditional works in its custody. It does not wish to bear the cost and disruption of locating and contacting rights-holders to obtain their permission for this. It also does not wish to bear the costs of digitisation; rather it wants to be able to contract the private sector to do this work on its behalf.52 , 53 Naturally the private sector wishes to make a return on its activities; to do so the CHS must be able to offer commercial exploitation of the resultant digital facsimiles. It also wishes to exploit them commercially itself.54

54. In essence the CHS, largely funded from the public purse, cannot be bothered to seek permission from property-owners to use their work or pay them for such use. Instead, it seeks broad exceptions to human rights and copyright so that it no longer has to. It justifies this stance in “independent” reports55 that overstate its case via selective and partial use of statistics, many of them wildly exaggerated, extrapolated as they are from notional and questionable starting points.

55. However, its legal needs as public guardians of the Nation’s cultural heritage can be met simply by amendment of Section 42 of the Copyright, Designs and Patents Act 1988:56

“Section 42 of the act restricts use of a preservation copy to preserve a fragile item or to replace a lost item. If Section 42 were extended to cover all types of work, whether orphan or not and in any medium, but these use restrictions continued, libraries and archives should be content.”—Professor Charles Oppenheim,57 member of JISC Working Group on Intellectual Property Rights,58 commenting on “Will Gompertz” blog, 16 May 201159

56. The CHS knows that its demands are controversial:

We have received the following report from Tim Padfield of The National Archives and Sarah Fahmy of JISC regarding a meeting they and a representative from the British Library, Ben White, had with staff from the UK Intellectual Property Office: [They were] at pains to ensure we understood that nothing has yet been decided on what orphan works legislation will finally look like nor how it will work. They also said that there was a serious risk that the clause on the subject in the Digital Economy Bill would be removed if there was any suggestion that it was controversial. We were asked not to make a lot of noise about the issue.60

57. The IPO grossly overstates the case for commercial use of orphan works and ECL. The Economic Impact of Recommendations supporting document to Hargreaves’ report61 is largely a work of fiction, little better than schoolboy economics. “The ‘economic justification’ is full of such dubious calculations—many numbers have been plucked out of the air at random—and loaded statements.”62 Despite Hargreaves’ call for IP policy to be “evidence-driven” the IPO’s economic case remains entirely unproven, and it is upon this case that any “general interest” exception to human rights must be based.

58. Notably, the EU is much more circumspect in its proposed Orphan Works Directive, limiting use to non-commercial use by the Cultural Heritage Sector, with few, tightly-defined exceptions.63 The EU approach is not without its problems but is largely acceptable to authors and rights-holders, and does not appear to require the wholesale breach of human rights to achieve its ends.

Legalised Piracy is Theft

59. The Theft Act 1968 Section 364 and Section 665 make it clear that copyright infringement (a.k.a. “piracy”) is appropriation, and therefore theft.

60. The recent ruling in 20C Fox vs. BT66 has established in UK case law that:

copyrights are property rights protected by Article 1 of the First Protocol of the European Convention on Human Rights, as also expressed in Article 1 of the First Protocol of the Human Rights Act 1998;

piracy of copyright work is a breach of the copyright holder’s human rights;

the copyright holder is therefore entitled to legal redress;

and, because “so far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights”, legislation drafted and enacted subsequent to the enactment of the Human Rights Act 1998 must also be read and given effect in a way which is compatible with human rights.

61. It follows that any proposed legislation to enable the commercial use of orphan works or the extended collective licensing of copyright works, which is intended to result in a copyright holder in practice being “deprived of his possessions” without his knowledge or consent (which Mr. Justice Arnold has judged to be the consequence for rights-holders of piracy of their copyright work) would breach Article 1 of the First Protocol of the Human Rights Act 1998.

Problems of Commercial Use of Orphan Photographs

62. The Privacy and Exclusivity Problems: Can a photograph legally be published or used commercially? In many cases it cannot:67

63. The “Market Rate” Myth: What is an appropriate licence fee for commercial use? For an orphan work there is no way to tell. There is certainly no such thing as a “market rate” for an orphan work:68

64. “Diligent Search”: There is no reliable automated search system available to carry out a “diligent search” for graphic works such as photographs.69

65. Consequently, what can be deemed an orphan work is a subjective judgement. As search systems refine, what may today be classed as a derivative work may not be tomorrow, or classed as a derivative work using one set of search criteria, will not be when using another. The reverse may be true when the same is done with a different work. Therefore, using automated systems, there can be no definitive method to establish whether one work is a derivative of another, and so they cannot be used consistently and reliably to define what is an orphan work. Currently such judgements are made by the human eye, and in some cases settled by a court judgment.

66. Foreign Rights-holders: By definition, any commercial orphan works scheme will end up licensing works belonging to foreign authors and rights-holders.

67. If such a work is licensed to a user with US assets and that work is registered with the US Copyright Office (whose registry is not machine-searchable), that user will be liable under US law to pay statutory damages of up to $150,000 per infringement to the rights-holder.70

68. In the case of works involving multiple secondary rights to models, models’ agents and so on, the potential liability becomes huge. Hargreaves is silent on this problem.

69. Misrepresentation: What if the proposed use misrepresents people depicted in the image and breaches their rights, including their contractual rights to exclusive use if the image was commercially produced?71

70. Lack of Legal Certainty: for all of the reasons described above there can be no legal certainty to the use of an orphan work. This despite the fact that along with free use of content, legal certainty is the overriding priority of commercial orphan works enthusiasts including the Cultural Heritage Sector and “entrepreneurial” Internet companies such as Google.

71. By not breaching human rights or copyright law, Stop43’s proposals for cultural preservation and use of orphan works avoid this problem whilst meeting the Cultural Heritage Sector’s needs, and also stimulating economic growth.72

72. Under the auspices of the British Copyright Council the community of photographic creators has produced a list of six caveats prerequisite to any orphan works licensing scheme.73 Stop43 are signatory to it.

Parody

73. A parody is not the same thing as a “mash-up”: it must be an original work throughout. Taking a copyright photograph and changing it slightly is not parody.

74. Neither Hargreaves’ Report nor the Government’s Response have explicitly considered the interaction between fair dealing for parody and the Moral Right to object to derogatory treatment of work,74 one of the IP rights guaranteed as a minimum75 by our membership of the Berne Union.76

75. Authors must retain the right to object when “parodic” use becomes derogatory.

76. The recommendation for fair dealing in parody does not discriminate between different media, dealing with each appropriately. Altering a photograph without permission for the purposes of parody infringes the copyright holder’s moral right of integrity. This is particularly important as authenticity is the very essence of a photograph, especially a documentary or news photograph, and it is fundamental to an author’s reputation.

77. Hargreaves instances the Newport State of Mind case. He neglects to mention the crucial legal mistake those parodists made: to use the original meolody (or something very close to it) without applying for a Licence to Use it. Parodying the words to a song does not confer an automatic right to use the same tune, little-changed.

78. A photograph incorporated unaltered into a work of parody should command a reproduction fee in the normal way.

Format Shifting

79. The Cultural Heritage Sector somewhat disingenuously likes to plead that current law prevents it from digitising cultural artefacts rotting in its basements, and that they will be lost forever.77 In fact they won’t; the CDPA 1988 already allows copying for preservation purposes of most kinds of media.78 As we have said earlier on the subject of Orphan Works, and as JISC advisor Professor Charles Oppenheim79 advocates,80 Stop43 recommend that CDPA 1988 Section 42 be extended as a matter of urgency to allow the digitisation of any work strictly to preserve it, and where appropriate make it publicly available for cultural use.

80. Many social and wedding photographers and portrait houses base their businesses on print and album sales. In doing so they guarantee quality products for their clients and maintain their professional reputations. A general Home Copying exception would not only endanger a major income stream, but also catastrophically undermine reputations for quality. While Stop43 are careful to avoid special pleading, any proposed Home Copying Exception must take particular note of these consequences and include appropriate and effective safeguards.

Fair Contract Law

81. Hargreaves’ remit and the the Government’s intention is to boost economic growth by increasing the value of the IP sector, and yet IP is specifically excluded from UK fair contract law by Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977 (UCTA):81

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;

82. Sections 2 to 4 of the Act deal with Negligence Liability, Liability arising in Contract and Unreasonable Indemnity Clauses. These subjects are the real financial killers for creators. Schedule 1, clause 1(c) effectively deprives creators of protection under UCTA and leaves us prey to oligopsonistic market bullies.

83. The Cultural Heritage Sector and academia both complain that they are subject to onerous licence terms and conditions by corporate rights-holders. Stop43 have described how several of the photographic markets have failed as a consequence of endemic predatory contract terms and rights-grabs.82

84. This situation can only be improved, and proper, tax-yielding growth stimulated in these markets, by the repeal of Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977 and the introduction into contract law of inalienable copyright, so that contract terms demanding the assignment of copyright become unfair under the Unfair Contract Terms Act 1977. Inalienable copyright must still allow for voluntary assignment.

The Intellectual Property Office

85. The IPO is an Executive Agency run as a self-supporting business charged with achieving a return on capital employed of 4%, which at some indeterminate point was made responsible for developing UK copyright law but makes no money from copyright, has offered the use of its £55 million surplus as seed capital for the establishment of the DCE (and presumably requires a 4% return on it), and according to Hargreaves’ report wishes to be the source of “statutory opinion” on copyright matters.83 It appears to want to be the prosecutor, judge, jury and financial beneficiary of all things copyright.

86. Such an entity cannot by any stretch of the imagination be considered disinterested or impartial. It is evidently riven with conflict of interest and Stop43 has little faith in it.

87. Given the nature of copyright, encompassing as it does human, moral, property and economic rights, and given that copyright artefacts are almost all primarily cultural artefacts, responsibility for developing UK copyright law and policy should be removed from the IPO and placed with the DCMS, which can be expected to have a better understanding of the interplay of these rights.

88. Hargreaves’ proposed DCE Champion must be entirely detached from the IPO or he will utterly lack credibility with creators.

Recommendations

89. Incorporate into UK law automatic and unwaivable Authors’ Moral Rights, as the UK is obliged to under the international human rights treaties and EU Charters referred to earlier, in a way that also allows an author voluntarily and without coercion to remain anonymous;

90. Repeal the Moral Rights Exceptions in Chapter IV of the Copyright, Designs and Patents Act 1988;

91. Extend Section 42 of the Copyright, Designs and Patents Act 1988 to cover all types of work, whether orphan or not and in any medium;

92. Legislate for the creation of a Digital Rights Registry/Digital Copyright Exchange;

93. Legislate for the creation of a revokable Statutory Licence enabling the Digital Rights Registry/Digital Copyright Exchange to make available orphan works to the general public for their Cultural Use;

94. Introduce properly effective, proportionate and dissuasive legal remedies for copyright infringement, deliberate metadata stripping and deliberate orphaning, as the UK is required to do by EU Directive 2004/48/EC;

95. Introduce the IP Small Claims track in the Patents County Court as initially recommended by Lord Justice Sir Rupert Jackson and endorsed by Hargreaves;

96. Repeal Schedule 1, clause 1(c) of The Unfair Contract Terms Act 1977;

97. Make copyright inalienable in contract law, so that contract terms demanding the assignment of copyright become unfair under the Unfair Contract Terms Act 1977, but allow for voluntary assignment;

98. Appoint an IP Ombudsman to arbitrate unfair contract disputes involving IP;

99. Do not introduce any scheme legalising the commercial use of orphan works beyond those defined in the EU proposed Orphan Works Directive, or any Extended Collective Licensing scheme that would in practice supplant primary licensing by rights-holders to users;

100. Do not introduce a two-tier copyright system into the UK as a result of any copyright registration scheme.

5 September 2011

1 http://www.un.org/en/documents/udhr/index.shtml#a27

2 http://www2.ohchr.org/english/law/cescr.htm#art15

3 http://www.europarl.europa.eu/charter/pdf/text_en.pdf

4 http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm

5 http://www.hri.org/docs/ECHR50.html#P1

6 http://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/II/chapter/1

7 http://www.legislation.gov.uk/ukpga/1998/42/contents

8 http://www.legislation.gov.uk/ukpga/1998/42/section/6

9 http://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/II/chapter/1

10 http://regulatorylaw.co.uk/Proportionality.html

11 http://regulatorylaw.co.uk/Proportionality.html

12 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:195:0016:0025:en:PDF

13 Stated by Matthew Cope of the Intellectual Property Office at a pre-consultation meeting held on 23 August 20011 and attended by Stop43, amongst others

14 http://www.stop43.org.uk/proposals/ipreview/ipreview/nca.html

15 Stated by Matthew Cope of the Intellectual Property Office at a pre-consultation meeting held on 23 August 20011 and attended by Stop43, amongst others

16 http://www.wipo.int/treaties/en/ip/berne/

17 http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

18 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

19 http://www.legislation.gov.uk/ukpga/1988/48/contents

20 http://en.wikipedia.org/wiki/Three-step_test

21 http://www.ipo.gov.uk/ipresponse-international.pdf

22 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

23 http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

24 http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/IV

25 http://www.legislation.gov.uk/ukpga/1988/48/section/78

26 http://www.legislation.gov.uk/ukpga/1988/48/section/79

27 http://www.legislation.gov.uk/ukpga/1988/48/section/81

28 Stated by Matthew Cope of the Intellectual Property Office at a pre-consultation meeting held on 23 August 20011 and attended by Stop43, amongst others

29 http://en.wikipedia.org/wiki/IPTC_Information_Interchange_Model

30 http://www.legislation.gov.uk/ukpga/1988/48/section/296ZG

31 http://www.stop43.org.uk/proposals/ipreview/ipreview/ipreview/evidence.html#Metadata_Stripping_by_the_BBC_W

32 http://www.prsformusic.com/Pages/default.aspx

33 http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350 Article 9 (1) states: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

34 http://www.wipo.int/about-wipo/en/core_tasks.html

35 http://www.dacs.org.uk/index.php?m=2&s=2&c=12

36 http://www.kopinor.no/en/home

37 http://www.bsac.uk.com/files/orphan%20works%20paper%20-%20june%202011%20_2_.pdf

38 http://www.ipo.gov.uk/ipreview-doc-ee.pdf

39 http://www.bsac.uk.com/files/orphan%20works%20paper%20-%20june%202011%20_2_.pdf

40 http://www.ipo.gov.uk/ipreview-finalreport.pdf

41 http://www.epuk.org/

42 Photographer contact details available on request. Google Image Search results page: http://bit.ly/p7ztkV

43 Photographer contact details available on request. Google Image Search results pages: http://bit.ly/mTEQbq, http://bit.ly/qsOtpm, http://bit.ly/pUpX2s, http://bit.ly/qJj4zh

44 Photographer contact details available on request. Google Image Search results page: http://bit.ly/pS9zXQ

45 http://www.research.salford.ac.uk/page/crime_security Unlicensed use of image in academic report on human rights; will probably be removed shortly

46 Photographer’s website http://www.webbaviation.co.uk/. Google Image Search results page: http://bit.ly/oTb7VK

47 http://creativecommons.org/

48 http://en.wikipedia.org/wiki/Lawrence_Lessig

49 http://www.colbertnation.com/the-colbert-report-videos/215454/january-08-2009/lawrence-lessig

50 http://gawker.com/5538216/facebook-ceo-slammed-dumb-users-who-trusted-him-in-college

51 http://musictechpolicy.wordpress.com/2011/08/22/creative-commons-corporation-because-it-sure-seems-to-cost-a-lot-of-money-to-give-things-away-for-free/

52 http://pressandpolicy.bl.uk/Press-Releases/The-British-Library-and-Google-to-make-250-000-books-available-to-all-4fc.aspx

53 http://pressandpolicy.bl.uk/Press-Releases/British-Library-and-brightsolid-partnership-to-digitise-up-to-40-million-pages-of-historic-newspapers-271.aspx

54 http://www.stop43.org.uk/proposals/ipreview/ipreview/ipreview/bl_scenarios.html

55 http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf

56 http://www.legislation.gov.uk/ukpga/1988/48/section/42

57 http://www.naomikorn.com/about.htm

58 http://www.jisc.ac.uk/aboutus/howjiscworks/committees/workinggroups.aspx

59 http://www.bbc.co.uk/news/entertainment-arts-13388167?postId=108826263#comment_108826263

60 http://www.jisc.ac.uk/media/documents/projects/ipr%20newsletter%2041.doc

61 http://www.ipo.gov.uk/ipreview-doc-ee.pdf

62 http://www.theregister.co.uk/2011/08/24/ipo_economic_justification_of_hargreaves_wtf/

63 http://ec.europa.eu/internal_market/copyright/docs/orphan-works/proposal_en.pdf

64 http://www.legislation.gov.uk/ukpga/1968/60/section/3

65 http://www.legislation.gov.uk/ukpga/1968/60/section/6

66 http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/28_07_11_bt_newzbin_ruling.pdf

67 http://www.stop43.org.uk/pages/pages/news_files/2c56f3d59e0e31a68845f7c210854973-28.php

68 http://www.stop43.org.uk/pages/pages/news_files/86e0a3ac8f8b3c99299bdf258a183ca5-27.php

69 http://www.stop43.org.uk/pages/pages/news_files/877a6f69aa6b2c1cf86e30d508cdbe2c-26.php

70 http://en.safecreative.net/faqs/the-u-s-copyright-office-registration/

71 http://www.stop43.org.uk/pages/pages/news_files/30e7c6ca8c5a3b56e38e0454f11eb7f0-44.php

72 http://www.stop43.org.uk/proposals/ipreview/ipreview/nca.html

73 http://www.ipo.gov.uk/ipreview-c4e-sub-bcc.pdf

74 http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/IV/crossheading/right-to-object-to-derogatory-treatment-of-work

75 http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

76 http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=15

77 http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf

78 http://www.legislation.gov.uk/ukpga/1988/48/section/42

79 http://www.naomikorn.com/about.htm

80 http://www.bbc.co.uk/news/entertainment-arts-13388167?postId=108826263#comment_108826263

81 http://www.legislation.gov.uk/ukpga/1977/50

82 http://www.stop43.org.uk/proposals/ipreview/ipreview/ipreview/markets.html

83 http://www.stop43.org.uk/pages/news_and_resources_files/fb435cc00dc81a126f89bcd395c8ee2a-104.php

Prepared 26th June 2012