Orphan Works bill in the UK

Is there anything about how much work has been done before its reasonable to call it orphaned?

As in is 'no metadata' enough to call it orphaned, or is there an expectation of reasonable search procedures? Eg if there is an image on Flickr and marked as copyrighted, does 'there was no metadata on the image _I_ got' count as a reasonable defense?

Otara

Is there anything about how much work has been done before its reasonable to call it orphaned?

The section of the Bill related to Orphans is littered with "we will decide later, just agree to what we want in principle". Knowing how competent governments are, this is exceedingly dangerous.

Without going into how our parliament (mal)functions, what the government is doing is asking for major changes to copyright law with primary legislation before deciding how the changes will work and implementing those with secondary legislation. Primary legislation means a full debate and scrutiny in parliament. Secondary does not.

It is being argued that these changes - changes that are as wide-ranging as these - require primary legislation.

If the Bill passes into law as it stands, the government can pretty much decide how images would be considered orphans. They have good intentions (and I quote) "It is not indended that the definition [of an orphan] will cover work such as yours...." but there is nothing in primary legislation to that effect.

So it may not be their intention to screw every photographer on the planet, but the road to hell is paved with good intentions.

Just about anyone on the planet with a PC can create their own orphan image (strip the metadata, crop the ©) so can only guess at what our government would consider orphaned at this stage.

If you want to write raising objections then the email addresses are on page 1 of this thread.

I've just sent an email to my MP via the website writetothem.com. Copy of the text below. Bit of a rant but please feel free to cut and paste. (I'm releasing it under creative commons ). It's really easy to do (just pop in your postcode and detail) so please take the time to send something.

Dear Nick Raynsford,

I'm writing to you to ask you to support the amendment proposed to the Digital Economy Bill that is currently supported in the upper house by Lord Clement-Jones, Lord Razzall, Viscount Bridgeman and Baroness Buscombe. Specifically their intention to oppose that Clause 42 stand part of the Bill. Specifically removing the Orphan Works and Extended Collective Licensing in their entirety.

I'm particularly concerned about this bill with respect of photography as a keen amateur photographer. The Orphan Works proposals are badly thought out and show a lack of understanding and thought as to how 'Orphan works' are be created on the internet. Photos are commonly ‘taken’ from sharing sites, personal websites etc and used on other websites without permission after stripping out any copyright information. Under this bill that would then be classed as an Orphan Work and fair game for commercial use. To say that this happens all the time would be an understatement. Image theft on the internet is rife and this bill aims to provide some kind of legality to secondary use of stolen images.

Furthermore many issues are not addressed and I don’t believe they have been properly considered. Photographers are often required to gain model releases for commercial works. What would happen should an Orphan work be found and used in a way that is against the terms of the model release? Who would be responsible for the breach of contract and subsequent damages? The photographer, the user of the photo? It's not clear and in practice could never work. This goes double for photo's involving minors.

Lastly, I find it most bizarre that, in a bill where the rights of corporate copyright holders are judged so important that the government is proposing to do away with the due process of law to prevent copyright 'theft' and piracy, that at the same time seeks to specifically undermine the existing rights of individual professional and amateur photographers and copyright holders. A cynic might suggest that this bill has been drafted explicitly to benefit corporations at the expense of the indivuals existing rights.

In summary - I feel that just because you can't trace the owner of a copyrighted item does not give you the right to use that item. I believe it's quite explicitly the reverse - if you can't find the owner then you do not have the right to use that item. Certainly I give nobody permission to use my photo’s and my rights as the creator and copyright holders should be respected over the rights of all would be users whether they can track me down or not.

I hope that you feel the same way as me and will see fit to vote against the bill as it stands unless the offending Clause 42 is removed.

I've just sent an email to my MP via the website writetothem.com..............

Many thanks Wizbowes. The more who write, the better......MPs are listening - there is an election looming.

There are hundreds of cars in my street. Just because I don't know who they belong to does not mean I should steal one - right?

What if there is a car parked in front of your house and it has been there for 17 years ... but the law says to tow it, you need permission of the owner.

At what point would you tow the car without the owner's permission? Would you ever seek to change that law?

What if there is a car parked in front of your house and it has been there for 17 years ... but the law says to tow it, you need permission of the owner.

 

At what point would you tow the car without the owner's permission? Would you ever seek to change that law?

But you've extended the analogy without defining your terms. The original was about people stealing cars when you don't know the owners. You're talking about the government towing cars.

Given that:

'Stealing a car' = 'Using an orphan work'

in the original analogy, can you explain what 'Towing a car' means in the context of this analogy. It makes no sense to me,

What if there is a car parked in front of your house and it has been there for 17 years ... but the law says to tow it, you need permission of the owner.

 

At what point would you tow the car without the owner's permission? Would you ever seek to change that law?

It can be a mistake to draw comparisons between copyright protected works and tangible items like cars. If someone steals my car, they deny me the use of said object but if someone copies one of my images then they are not directly depriving me of said image, just the income from a legitimate license - I still have the copy of my image.

On reflection I would not have used the car thief analogy in this case.

Bad news - Last night the House of Lords debated the Digital Economy Bill and orphan works were not removed. The government seems hell-bent in pushing through this Bill in face of opposition from photographers.

I will update more once I have fully digested the ramifications.

Having read the details of the debate, I conclude that HMG do not care about photography or the impact an orphan works Bill will have on it. This is irrespective of a professional or amateur perspective. They want to hand control of every unidentified image on the web to an as-yet-to-be-decided-by-civil-servants body that will, in short, f**k copyright as we know it.

It is imperative that as many photographers as possible write to their MP and Lord Mandelson to voice their opposition to this Bill. To find your MP, use They Work for You. If every member of Digigreen writes, then we have more than 200 emails hitting the inbox protesting at these changes. Here's a sample that everyone is free to use and amend as they see fit. I did not write it, but credit must go to Tony Sleep (see his website, if you don't know his work) for his succinct summary of the problems we face:-

"Re Digital Economy Bill.

The end game is now in sight. The Digital Economy Bill introduces orphan works rights, which - unless amended, which HMG says it will not - will allow the commercial use of any photograph whose author cannot be identified through a suitably negligent search. That is about 90% of the photos on the internet.

Copyright in photos is essentially going to cease to exist, since there is no ineradicable way of associating ownership details short of plastering your name right across the image. We've pressed for mandatory attribution to deter orphans being made in the first place, but nobody is listening.

Many publishers hate that idea, because it costs them money. Besides they are major creators of orphans by stripping metadata, and fully intend to take advantage of not knowing who made the photos they have anonymised. But they are Industry of great weight and value to the economy, so their lobbying is listened to and ours isn't.

So Flickr, Google Images, personal websites, all of it will become commercial publishers' free photolibrary. A small fee - to be decided by Peter Mandelson's office - will have to be deposited with a collecting society in case the owner spots the usage. The author who discovers his work has been used as an orphan can then make a claim and receive a percentage of the peanuts, after the collecting society has had its share.

This is a slight improvement over earlier proposals, whereby HMG simply planned to keep all the fees instead.

Essentially, if photos were cars, so long as the numberplate is missing (or you can get rid of it and claim it was), you'll be able to legally TWOC and use it.

The quaint notion that the author has prime and inalienable rights over his/her own work, must be able to restrict usage, negotiate a fee, prevent usage they consider immoral or distasteful, or assert their moral right to attribution, is about to pass into history.

I urge you to amend the Act and remove Clause 42 (Orphan works) from the Digital Economy Bill in its entirety."

I cannot achieve much on my own.....but collective will have an effect and get this amended. Write, and write now

Thanks in advance.

Done as mentioned before but with no response.

There's a BSOUP meeting next wednesday. Perhaps somebody could try to rally some support there.

Done as mentioned before but with no response.

 

There's a BSOUP meeting next wednesday. Perhaps somebody could try to rally some support there.

I did mention it at the Dec BSOUP but will do so again this Wednesday....and drop the Chairman an email suggesting a good idea to circulate to the member list via email too....

Wizbowes, thanks for emailing. Can I suggest you call the MP's office and ask why there has been no response? When I rang my MP's secretary after the most generic and bland response she suggested "...we could hope someone reads it..." I nearly blew a bloody fuse. Since when has "hope" been a strategy for success?

If you care who uses your images and want to stop the UK government making money out of your creative endeavors, now is the time to stand up, take action and be counted.

Pressure on our elected representatives is now the only way to stop the Bill, and time is short.

Tony Sleep has put together an excellent template letter and it can be downloaded here:-

Template letter to your MP

It’s a template letter that every photographer can use, but it is far better if everyone can write their own, unique response. Campaign-style template letters receive less attention than the personal letter, so adapt it, change it - but do write.

Email is good - An actual paper-based letter is even better. And if you want to really get their attention, use Recorded Delivery....they might think the Fees Office are getting in touch.

If you are UK based and do not know the address for your MP or even their name, it is easy to find at They Work For You using nothing more than your postcode.

Collectively we can achieve more than mere individuals. Next time you see an underwater photographer, stop and ask them "What did you do to stop Orphan Works?"

If you live abroad, please send all objections to both Lord Mandelson and the Digital Bill Assistant Manager, using the template letter if needed but at least reminding them of the worldwide reach of the web:-

Digital Economy Assistant Bill Manager

Email:- laisze.lai@bis.gsi.gov.uk

Lord Mandelson:-

mpst.mandelson@bis.gsi.gov.uk

If you don't think it won't affect you think again. The web works here in the UK and any images posted anywhere else on the planet can be orphaned and used. The UK government has a record level of debt and would just love to use any revenue they can to repay the loans..... but is this right? Does our government deserve this money?

I've written my MP! To be perfectly honest I can't see how any orphan works bill can operate legally if it doesn't have international agreement. Using a foreign national's 'orphaned' image will still be a breach of copyright in many countries and the potential for legal action is enormous. IF this bill gets passed I would suggest that complaining to the EC's legal department (by both UK and EC national's) may result in it being declared illegal under EC law etc., etc.

I've written my MP! To be perfectly honest I can't see how any orphan works bill can operate legally if it doesn't have international agreement. Using a foreign national's 'orphaned' image will still be a breach of copyright in many countries and the potential for legal action is enormous. IF this bill gets passed I would suggest that complaining to the EC's legal department (by both UK and EC national's) may result in it being declared illegal under EC law etc., etc.

This is indeed a possible route....there is some information I would like to share on this very matter, but require permission to do so. Watch this space.

Thanks for writing Paul.

For those interested, a Facebook Group has been started to oppose the Digital Economy Bill and Orphan Works

If people are prepared to contact their MPs can I suggest WRITING BY LETTER rather than email, and only providing name and address as this forces a written response. Not that I distrust our glorious leaders, but......

Response (by letter) from my MP:

"I have noted your comments and am making your views known to the Rt Hon Stephen Timms MP. Parliamentary Under-Secretary of State, Minister for Digital Britain, Department for Business, Innovation & Skills who is the Minister responsible for taking the Bill through the Commons. As you may know, the Bill will next be debated in the House of Lords 1st March during its Report Stage."

I do have to say the my MP (Betty Williams, standing down at the election to be) has always responded and has been very helpful whenever contacted (she voted against Iraq despite the Whips - not an easy thing to do apparently). So if nothing else she will have flagged up another letter of opposition.

Looks like a lot of people have been writing. The response is partly here:

http://www.ipo.gov.uk/pro-types/pro-copy/c...works-photo.htm

Looks like a lot of people have been writing. The response is partly here:

 

http://www.ipo.gov.uk/pro-types/pro-copy/c...works-photo.htm

Thanks Paul. The page is riddled with lots of kind, gentle soothing words encouraging us to trust our government.....but it short on reasoning and a connection with reality. From their assertion of moral rights preventing publishers "from carrying out legitimate editing activities and add unacceptable overheads" (Germany and France have publishing industries, with full moral rights for authors - why is the UK different?) to "licensing of orphan works would be at the market rate" (Market rate on art? Is my unmade bed worth the same as Tracy Emin's? I don't think so....) the page is littered with reasoning and argument that fails to stack up on the real, live voting planet.

Nice words from HMG are intended to reassure; "If it proves impossible to devise a scheme for a particular area that does not unfairly disadvantage rights holders interests, then the Government will have the flexibility to not authorise any schemes to be set up in that areas." And they are at liberty to ignore any reasoning and reality of the rights holders and carry on as they, or their BBC Worldwide/British Library lobbying, see fit.. The record on government consultation with respect to copyright does not fill me with a great deal of faith in their words.

It has been suggested that creatives can search the orphan works register for their images. Nice phrases like "The effectiveness of electronic searching will also increase as image recognition technology improves.". But until then what? Review each one individually? The logic is if such a search technology existed, would it be possible to use that to find the content creator instead of the reverse?

In summary, the document is not a cast-iron commitment or guarantee to do anything in the interests of the creator in mind.

But its not over yet. There are moves afoot to alter the views of all parties as to the suitability of orphans. I will update more when I can.

Looks like a lot of people have been writing. The response is partly here:

 

http://www.ipo.gov.uk/pro-types/pro-copy/c...works-photo.htm

For a longer, detailed analysis of why the Intellectual Property Office link is full of garbage, it's worth having a read of this page:-

Copyright Action - Why IPO is wrong

Actually I suspect that the real problem will be international. Using an 'orphan' image whose owner then turns up and is not a UK national may mean that using the image (especially if its use on a world wide basis) is simply a breach of copyright in another country. I can't see a way around this and the result may be that UK users of 'orphan' works simply find themselves in trouble outside the UK. Overseas photographers take note, your images may be unsafe within the UK!