Orphan Works in the Frame

In current copyright debates, smaller creative sectors receive less attention.  These sectors have also undergone significant changes as technology, policy and consumers collide.  Spare a thought today for the photography industry. With the costs of equipment falling rapidly, huge advances in post production software, the demise of film and the rise of, oh horror of horrors, Instagram, the photography market is undergoing massive change.

For professional photographers, margins are squeezed as traditional outlets, such as newspapers and stock agencies, have cut rates for photographers. Like journalists and media relying on advertising revenues, the future is uncertain.  Photographers working directly with consumers, such as portrait and wedding photographers, struggle as consumers expect to "own" digital files.  It ain't easy being a 'tog these days.

Mmm... tasty fisheye.
In IP, photographers are particularly concerned with proposed orphan works changes.  One revenue source for photographers is the licensing of existing work.  Their concern is that the Hargreave's proposed Digital Copyright Exchange (DCE) would create a large, cheap library of orphan works that would unfairly compete with works with identified rights holders.  This is particularly concerning for photographers as it is relatively easy to orphan a digital photo as website uploading may strip it of identifying material (although this is changing) and EXIF data can be edited.  Tracking down images once they have been anonymised is difficult but technology is catching up with services like Tin Eye and advances in steganography.

The argument in favour of changes to orphan works legislation is that allowing the use of orphan works is a cost effective way to free up archives of cultural and creative material.  For example, it would allow museums, libraries and broadcasters to make their archives available for use (particularly online.)  Under current legislation, the required steps to contact the rights holders of these archives are considered too costly for the expected benefits of making the archives available.  The proposed changes should also make it easier for the rights holders of orphaned works, once identified, to claim fees.

To lobby against proposed changes to orphan works legislation, a group of photographers have organised a campaign called Stop 43 (named after Clause 43 of the Digital Economy Act which was removed.) The debate heated up last month with an article in the Register. The Stop 43 campaign has recently focused its attentions on the IPO with a number of posts (here and here) against the inclusion of changes to orphan works in the Enterprise and Regulatory Reform Bill

Stop 43 states that
Do not introduce any copyright exceptions, ECL or orphan works schemes in order to satisfy economic demands or solve ‘access and use problems’ which could be satisfied or solved by services provided by the Digital Rights Registry/Digital Copyright Exchange. Allow transactional markets (including fee-free transactions) and Cultural Use to solve the problems these measures are intended to address. The DCE must be given this chance before the Government resorts to breach of international and EU human rights and copyright law, and the wholesale weakening of the public’s human rights and copyrights.

A source close to the debate states
The Government's orphan works licensing scheme is good news for photographers whose work is being used without their permission and knowledge.  They will not only have a better chance to find out about such uses and end them, but also be paid for the time they're used without having to fight for it in court.

Your Katonomist sees the debate as a classic struggle between the Tyranny of Minority and the Tyranny of the Majority.  Orphan works legislation could benefit a large section of the sector but at the expense of a minority.  Although, even that point is debated as those in favour of changes to orphan works argue it will benefit all and, those against it argue the opposite.  Exactly how we allocate the costs and benefits of changes to IP policy depends on what we want as a society.  Do we prefer no action in the absence of a consensus? Or do we follow utilitarianism and seek to maximise overall utility?  The debate continues.

Edited 10/08/12 to add this disclosure: Your Katonomist was an fellow at the UK IPO for the academic year 2010-2011.
Orphan Works in the Frame Orphan Works in the Frame Reviewed by Nicola Searle on Tuesday, August 07, 2012 Rating: 5


  1. Much could be done to improve the definition of an orphan work. Throughout the lobbying of both Gowers and Hargreaves by the likes of the BBC and the British Library, the emphasis was on the enormous stock of old analogue content held in their archives, some of which was quite possibly in the publc domain due to its age, but because the authors were unknown, this could not be assumed. That material is a million miles away from digital images of today which are the concern of Stop43. Simply by restricting the scope of orphan works to just those which are held within reputable archives such as the British Library or the BBC - something the EU initiative on orphan works has considered - any large-scale grabbing of modern photography by the likes of Getty or Corbis through the spurious definition that the rights owner can't be easily identified, would effectively be prevented, or at least not made more prevalent than it currently is.
    Am I the only one who sees the great irony that at a time when the (identifiable) rights owners of movies and music gain greater protection through legislation such as the DEA, and via the courts with Newzbin2, and the EU copyright term extension, the rights of small businesses such as freelance photographers, and of amateurs, which should equal those of the big beasts of the jungle (who let's face usually only own neighbouring rights), just get weaker.

  2. The Government is being disingenuous in stressing the archiving and library uses of orphan works when the proposals from the IPO explicitly create a commercial collection for exploitation by a quango. The assertion that an orphan rate is somehow 'good news' for photographers, who lose the ability either to negotiate or to offer exclusives or windows, is insulting and laughable.

    Our Katonomist does not serve us well in framing this as a choice of tyrannies. The Minority Tyrants have done an excellent job in providing the world with large numbers of excellent photographs on very competitive terms. There's no problem to solve here for commercial exploitation, and the cultural access and archiving can be taken care of by a simple exception or two.

  3. The source 'close to the debate' is almost certainly Ed Quilty. Those are almost the exact words he used to me when I asked him a question at last year's AOP event.

    His stance seems to be one of naive assumption that someone who may have otherwise 'stolen' an image may be inclined to go and get an Orphan Works licence. All my work leaves my studio with a full set of metadata embedded. As we know this is very easily stripped. If the stripping of metadata was treated with the gravity it deserves, then ECL an OW legislation would become totally unnecessary for contemporary work.

    Orphan Works and ECL legislation breaches human rights law and runs the risk of tearing up contract law as we know it. It is all very well saying that in the digital era digital businesses need easily to be able to get the licences that they need. It is quite easy to get a licence from me. Pick up the phone or email, and we'll sort out a price:

    (a) if the image is available for licensing, and not under another exclusive licence to a client, or covered by a restrictive model release
    (b) if I want to sell a licence to the organisation / individual that wants to buy it
    (c) the price and contract terms are acceptable to both parties

    On point (a), there is no way an OW licencing body or collecting society will know what my contractual obligations to my clients, models appearing in the image or other suppliers are. The possible commercial use of work which has been orphaned destroys my right to sell it exclusively at a high price, and destroys the confidence of my clients that I will honour my contract and protect their investment.
    I have chosen not to licence certain images on the basis of point (b); for example, I would be very upset if the BNP were to use one of my images whatever price they were prepared to pay. But it is point (c) that becomes the sticking point in many cases, and on numerous occasions I have chosen NOT to licence a use because the client was not prepared to pay the price the image was worth. From the way I understand these things operate, collecting societies will not be so discerning.

    With regard to point (c), another recent example has been that Coldplay and Adele have chosen not to allow their recent music to be played on Spotify. Spotify may say that it 'needs' these licences in a digital world, but the truth is that they are not prepared to pay the proper licence fee expected by these artists. Coldplay and Adele are exercising their human right to refuse as they have the right to control their property; a right most creators feel is crucial to the running of a civilised society.

  4. It seems Stop43 have answered this piece here
    although it has not been posted here.

  5. Thank you for posting the reply, Andre R. Unlike the IPKat, the Stop43 post doesn't allow comments, so I shall respond to their post here.

    "Nicola Searle is a paid consultant to the IPO. Not to have disclosed this in her article is poor journalistic practice."

    Stop43 rightly points out that I should have disclosed my previous association with IPO as I have done in earlier posts focusing on the IPO (e.g. http://ipkitten.blogspot.co.uk/2012/07/role-of-ipo.html) I was an ESRC/AHRC/IPO funded fellow at the IPO from 2010-2011 but would
    not describe myself as a current "paid consultant."

    The rest of Stop43's response is all part of the healthy debate surrounding orphan works and similar legislation. I do not intend to reveal my source as it would not enhance this debate.


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