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.