The Enterprise and Regulatory Reform Bill: How Safe Are Your Online Images?

Posted by: In: Just Chat 02 May 2013 Comments: 0

There has been a flutter of interest on the internet at the release of the government’s Enterprise and Regulatory Reform bill. Mainly this revolves around the concern around the use of orphan images.

The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations

Enterprise & Regulatory Reform Bill

freeimage-5993737-webMy understanding of this is that it allows anyone to make use of (for commercial or non-commercial gain) an “orphan” image as long as they made a “reasonable” search for the owner. Will this mean a rise in images that have watermarks plastered all over them? Perhaps that will be the case, and the wider internet can only suffer because of this.

As usual, accurate information is hard to find, with even sites like the esteemed British Journal of Photography stating that “While publishers seeking to use an orphan work will have to demonstrate they have done a reasonable search for the image’s owner, a large number of online services, such as Facebook, Twitter and Flickr, strip the metadata from uploaded images, creating millions of new orphan works each day.” (Source) Well I know that Flickr doesn’t strip this information unless you tell it to in your account options.

Hysterical media furore isn’t helping the average user dig to the bottom of the facts unfortunately, and I find government bills exceptionally hard to read…

Having a go at this though, I feel that I can see why there are so many uncertainties around the act. To begin with, the Copyright Licensing Factsheet is rather woolly about the advantages, stating:

 This legislation will modernise the UK’s copyright licensing system, putting in place measures that will give our licensing system the competitive edge and helping UK creative industries retain their world beating-status.

UK Government

Without being cynical (ok, maybe I am being cynical) this sounds like someone serving up a plate of horse manure and telling me it’s chocolate cake. I may never be able to convince them it isn’t, but I certainly don’t have to eat it! A description of the benefits in more understandable terms might improve the feedback we’re seeing. Getting back on track though, my main question seems to be the definition of what is an Orphan image? What means is there to prevent someone unscrupulous from copying my photograph, stripping and identifying information from it, then uploading it to an anonymous photo hosting site and then grabbing it back as an “orphaned” work?

Wired managed to get a comment from a spokesman from the Intellectual Property office who stated…

“Nor do the changes mean anyone can use a copyright work without permission or free of charge. If someone copies a photo posted online they still need the permission from the rights holder of the photo to do so. If they don’t have this permission they will have to apply for and buy an orphan works licence.”

Intellectual Property Office Spokesman

Apparently, the monies paid for this license will be held (no doubt the Government will be happy to take the interest) for the original owner should they come forward.

It all sounds a bit fishy to me and whilst I’m not a professional photographer who sells their work, this could have serious implications to Stock photographers and Fine Art photographers. At the time of writing, a current e-Petition to prevent what is being described as “legalised theft of copyrighted works” has almost 18,000 signatures. At least anything over 10,000 means they will have to issue some sort of response.

The crux of the “issues” around this as far as I can see come from understanding what constitutes a “diligent search”. A 2008 memo to the House of Commons refers to the US report on Orphaned Works stating…

 ..it would be useful if the UK could adopt a similar policy and define what should count as `reasonable efforts

British Academy for the Humanities and Social Sciences

Either way – at the time of writing, there is no clear (i.e. “easy to find”) documentation regarding what constitutes a “diligent search” so we’ll have to rely on Daily Mail paranoia, or perhaps just wait & see…

Ian

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