David Bailey weighs in.

David Bailey weighs in.

6 posts
16 April 2013
OldMaster
Photographer
OldMaster
Well, good for him. We don't need any changes to copyright law in this country particularly when it is likely to be of disbenefit to the original author....

Posted 16 April 2013
photomane9
Photographer
photomane9
OldMaster

Well, good for him. We don't need any changes to copyright law in this country particularly when it is likely to be of disbenefit to the original author....

I have to disagree with you on this, although probably not in the way you might imagine.
Currently copyright law (specifically section 296ZA of the Copyright Designs and Patents Act 1988 ) makes it an offence for a person to circumvent any technological measure which has been applied to a work in order to protect the copyright in it. It has been widely argued that this includes metadata embedded in a digital photograph. Therefore any person who removes the metadata from a digital image commits an offence. The problem is that in most cases where metadata stripping occurs, it is done by a computer program or algorithm, not a person, so the law is ineffective. That is why the law needs to be changed. Indeed during the passage of the Enterprise and Regulatory Reform Bill (which is what David Bailey was writing about) through the House of Lords, an amendment was submitted to address this issue, but it was not accepted, on the assurance of the IP Minister that the Technology Strategy Board (part of the Department for Business, Innovation and Skills) was looking into this matter and would make recommendations to Parliament in due course. Unfortunately no timeframe was mentioned.
Personally I support the moves to make true orphan works more accessible. There are millions of works stored in archives and museums which cannot currently be digitised or otherwise made available online despite the fact that most are almost certainly no longer in copyright, but since the identity of the author is unknown, this cannot be proved and so they have to remain in limbo. Once the necessary precautions are in place to protect obviously modern works, such as digital photographs, from inclusion under the heading of orphan works, I believe this change to the law will be beneficial.
 
Posted 16 April 2013
Edited by photomane9 16 April 2013
anthonyh
Photographer
anthonyh
This issue has been debated at length on American forums and also been the subject of a detailed analysis in the BJP.

The universal consensus is that this is basically a ploy to reduce copyright protection and almost certainly any institution in the UK that usurps the rights of any American copyright holder will be be subject to litigation in the American courts. It seems the same will be true if any EU photographers have their rights infringed as they are protected under EU and national laws.

The govt seems to be saying, in effect, that if something is 'lost' it becomes the property of the finder....and, the finder is not obligated to try too hard to find out who the owner is. In fact any institution or business can use any image that is not blatantly copyrighted and claim 'ignorance' of the authorship of the work...knowing that if the author ever discovers the illegal use there will only be a token 'penalty' payable.

Posted 17 April 2013
photomane9
Photographer
photomane9
anthonyh

This issue has been debated at length on American forums and also been the subject of a detailed analysis in the BJP. The universal consensus is that this is basically a ploy to reduce copyright protection and almost certainly any institution in the UK that usurps the rights of any American copyright holder will be be subject to litigation in the American courts. It seems the same will be true if any EU photographers have their rights infringed as they are protected under EU and national laws. The govt seems to be saying, in effect, that if something is 'lost' it becomes the property of the finder....and, the finder is not obligated to try too hard to find out who the owner is. In fact any institution or business can use any image that is not blatantly copyrighted and claim 'ignorance' of the authorship of the work...knowing that if the author ever discovers the illegal use there will only be a token 'penalty' payable.

While I don't doubt the sincerity of your comments, and as a photographer I also oppose anything which weakens our copyright protection, but much of what you say here is simply speculation. As we have not yet had sight of the proposed secondary legislation by which the orphan work regime will be implemented,  it is problematic to make statements that begin "In fact... " when we don't know the facts. What we do know is that the agencies which will administer the orphan works scheme will be independent of 'big business' and they will have a duty to ensure that before anyone obtains a licence to use of a work, they must make a declaration that they have conducted a diligent search for the missing owner, and they will currently* only be issued a licence on payment of a representative fee. In theory we have been told this should reflect the real market value of the work, although quite how this will determined remains to be made clear. However, none of this prevents the owner of the copyright coming forward and reclaiming his work and getting any fee already paid. In reality I suspect the bureaucratic nature of the scheme will make it unattractive to casual poachers of other people's work, and they will continue to do what they do now, that is just use the work and hope not to get caught.  
Incidently, citizens of the EU may have a problem suing in the UK courts as the EU has already issued a Directive on orphan works, which although not quite as far-reaching as the UK proposal, nonethless establishes legal basis for making orphan works available in this way.

*There is a proposal, currently not in the Bill, but possibly under consideration, that large institutions such as the British Library, may not have to pay the fees up front, but hold them in trust in case an owner comes forward at a later stage. However I don't think the British Library poses any significant threat to contemporary photographers when they have millions of items well over a century old which they would like to make available to the public.
Posted 17 April 2013
Edited by photomane9 17 April 2013
anthonyh
Photographer
anthonyh
Try using Google if you need more info.....

Posted 17 April 2013
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