New Act Makes It Legal for Photographs to Get Used Without Payment to Their Authors
Yes, you did read that correctly. I’m in a state of disbelief and utter disgust with our Government. Appalling behaviour. Before I continue, it’s imperative to understand that my post not only applies to professional photographers whose livelihood just got taken away by this Act, but also amateur photographers too. Also, this applies to photographs worldwide; any photographer, from anywhere can be affected by this.
Firstly, by taking a picture (any picture, be it a family snap or an amazing news picture, wedding picture, landscape etc) you create it and have copyright and ownership of that image. This is the law and a human right.
In a nutshell, the new Act (Enterprise and Regulatory Reform Act, which received Royal Assent) that got voted through by government allows all work considered to be an orphan work to get used for free. Orphan works are those works whose creator cannot be found. One could immediately jump to the conclusion that this means purely photographers (this applies to more than photography, and to creatives as a whole) who have died and are uncontactable. It does not just mean this. It means any work. Consider for a moment that the billions of images that get uploaded to various websites, on the whole, have their metadata stripped out. IPTC and metadata is something most enthusiast photographers bother with (you should!) but the majority of photographers, especially those in the editorial markets, always fill in full IPTC which show’s the author of the image, copyright, contact details and so on. Well, the majority of websites, social networks and so on strip out ALL of this data. Your work, even something you shot a minute ago and uploaded, just became an orphan work. As such, it can now be used for free and for whatever purpose the thief of the image wants to use if for.
The corporation or individual stealing your work has to show that they diligently searched for you, the author, before just taking your work and using it for their purpose, often commercially, so making them money from your work, for which you will not see a penny. Well, I guess it’s easy to say I looked but the billions of images online meant I couldn’t find the author. Also the wording is so loose and legally ambiguous that it’s left to interpretations.
Although this Act still has to get made into actual legislation, no Act has been voted down since 1979, so it’s considered a formality. This is happening. The first steps have been taken and the wording is paving way for the legislation to follow. This is extremely worrying and nobody who uploads photographs to the internet can afford to be complacent.
For those who don’t know, a professional photographer’s income also comes from licensing of images. For some, this is the majority of their income. It is our livelihood. The government just took that away. For some, this could well mean bankruptcy and unemployment. Why would a government elected to serve it’s people take away their right to work and make a living? This is beyond me. How can this be considered serving the people? The photographer get’s abused, their rights to their own creations taken away, just so corporations (multi billion pound behemoths in most cases) can save a very small fraction of their costs by getting their photography, for commercial use, for free. Also keep in mind the rights of your subjects being abused.
I’m utterly disgusted.
What To Do?
I suggest anyone (amateur or professional) who uploads pictures to the internet (Facebook, Twitter and so on) immediately learns how to watermark their pictures. Watermarking means putting text and / or a logo onto your pictures to say who they belong to, before uploading the images. It’s easy to do and only takes seconds. For my main photography I use Aperture (and have presets with my logos made up – very simple) and for my iPhone photography I use Marksta (very simple to use and an excellent piece of software). Lightroom, Photoshop and so on can be used for watermarking. There are also apps for Android phones and so on. Spend a few minutes and Google how to do this. Safeguard your work.
A watermark, comprising of a logo graphic file (bottom left) and a text (central) applied using the iPhone Marksta App. Photo: ©Edmond Terakopian
Watermarks should be placed on the image itself. You should also have a creation year, so the central text reads “©Edmond Terakopian 2013”. You can also, like in this case, be subtle but still brand your work. If you look at previous posts on this blog, you will notice that I have a specific blog watermark on the images. Also, by looking through my Flickr, you can see watermarking there too. Facebook friends will also notice how I watermark all images there too. Protect yourself, your work and your subjects too. Take action.
Following on from this, we need to try and get this Act killed off. Lobby your MPs and speak to any photography associations and organisations (BPPA, NUJ, MPA, SWPP etc) you belong to and ask them to campaign against this (some are already doing this, but all the social/wedding associations need to act too).
I also feel, and have done for years, that metadata should not be editable by anyone else but the photographer (or their picture desk). IPTC should have a password protect feature, much like locked PDF files. It should also be illegal and technically impossible for metadata to be changed or erased from an image by websites it is being uploaded to. Perhaps this is an avenue worth exploring?
Sign The Petition
There’s a petition, kindly drawn up by Will Nicholls. Whilst the initiative is great, it is missing some key elements. Regardless, as it’s the only petition out there, I have signed it and would suggest everyone does too:
Stop Legalised Theft Of Copyrighted Works
Hopefully one of the associations will draft up a more comprehensive petition covering all aspects. As soon as this is available, I would urge all to join me in signing that one as well. The more pressure we can bring, the more chance we have of safeguarding our industry. We must stand up for our rights as no one else will.
Summing Up
Regardless of if you’re a proud parent taking pictures of your children or a professional photographer photographing news, weddings, portraits, landscapes and so on, all photographs uploaded to the internet will soon be in danger of getting stolen and used without your permission. Not only are you losing control of your images, but your subjects’ rights are also being violated. All legally. All thanks to the Enterprise and Regulatory Reform Bill (ERRB) which received Royal Assent and is now an Act. This paves way for legislation. The fact that no Act has been stopped from becoming legislation since 1979 makes this extremely dangerous for anyone who takes pictures and puts them on the internet; FaceBook, Twitter and so on.
This will effect EVERYONE so act NOW.
Further Reading:
Photographer David Bailey’s letter to George Osborne in full:
Dear George
I am writing because I am appalled at what the government is doing to our rights in the ERRB (Enterprise and Regulatory Reform Bill). Why the ERRB by the way? Why can’t copyright be dealt with properly in a proper Copyright Bill? I’m told everyone will be able to get their hands on our so-called “orphans” so libraries and museums can publish old photographs whose authors have long been forgotten. But never mind what’s lying around on dusty old shelves, what about the millions of “orphans” that are being created now every day!
Why? Because social media, and everyone else for that matter routinely strip our names and contact details from our digital files. They simply should not be allowed to get away with this. They can because our government refuses to give us the right to our names by our pictures (Moral rights). So now commercial organisations will be allowed to make money from our “orphans”, but not us, the creators.
This legislation should never have been even considered without first giving us our moral rights, and is contrary to our rights under the Berne Convention. Why the rush? A scheme, the Copyright Hub – a scheme backed by the government – is being developed to ensure that those who wish to find our pictures can not only do so quickly online, but also find the contact details of the pictures’ owners. You are about to put the cart before the horse.
I’m told the real reason for speed is that “releasing” orphans will create growth. We all understand the need for growth. But where’s the evidence? The seemingly impressive financial figures presented originally in the Hargreaves Review have mysteriously had to be revised – down by 97%! Which now apparently amount to no more than 80p per taxpayer per year. Given the damage this legislation will now cause to taxpaying creators, damage no-one has so far taken into account, the effect of this legislation on economic growth will in fact be negative.
It’s not too late to think again!
Best,
David Bailey
Photo This & That 
Great article Edmond. It’s easy to protect images you upload to flickr or Facebook but how do you deal with Licenced images? Once an image is used by someone else online it can easily become orphaned and then can easily become unidentifiable and easily become used without payment.
Thanks Brett. With licensed images it’s another story. I think one avenue will be registering any licensed images in the database for protection. Naturally this is unfeasible for every image uploaded to the net, but is more achievable for images which are licensed to clients. It’s still not right and the entire copyright and orphan works aspect of the Act needs to be deleted.
I also feel that technology has a part to play in making metadata permanent and locked so it can’t be striped out or modified.
Great stuff, Ed. May I share it on FB?
Yes, most definitely share the link far and wide. People need to know.
Brilliant article. Thank you for taking the time to write and provide such sound advice on watermarking and applying metadata to the image/s. A colleague of mine shared it on facebook here in Ireland. I think lobbying against the MP’s is a vital step. I hope that representatives from the MPA, BIPP, SWPP, RPS etc; AND Camera Clubs up and down the country will at least start a petition. They can’t do it alone and will need full support from their members. I urge all photographers to talk to their peers and get the ball rolling.
Thanks for the kind words of support. We need to all get together and act on this.
A great way to start would be for people to stop randomly uploading whole batches of high rez images to social networks sites and other areas where security is of no, or little, importance. Make the images as small (low rez) and as useless to anyone as possible, unless they are for professional presentation purpose, when you should consider using a more security conscious site. Watermarking is a good move, however we all know that any 4 year old photoshop genius can get round that.
I really dont know what the answer is, but I reckon being a little more careful about where and how you post images is the starting point.
If watermarking is done properly, then it needs a skilled Photoshop operator to remove it. This also then leaves traces and makes it easy for the photographer to take action and sue. We need to get this Act stopped. Uploading tiny images is pointless as it’s us that suffers by not showing our work. Watermarking properly is a good start but lobbying MPs and organisations is the thing to do.
It is unequivocally illegal in the US to knowingly remove a watermark via image editing software of even by simply cropping it out, making such manipulation an automatic qualified theft. I would imagine it is so as well in Europe, wouldn’t you think?
A quick innocent search for legal background I did a minute ago was so disheartening: the google results aims solely at removing watermark from photos…
*sigh*
Excellent article and shared. Awaiting my MPs response as to why previous pleas have been ignored and we are now disadvantaged by this government. My breath I am not holding
Thanks. We all need to keep pushing against this ludicrous Act.
This is only enabling legislation and does not actually mean anything YET. The government, once the act is passed, can then implement any suitable regulations within the Act that they choose. We have now got to make a lot of noise and try to ensure that any regulation does not mean that copyright is open season.
Indeed not; it is however the very worrying first step. The fact that all Acts have gone through and become legislation since 1979 with none since then being voted down, it leads me to say that we cannot be complacent on this.
The lack of specification on the effort needed to be put in to find the author is very alarming. Not everyone is a skilled photo origin hunter, even if they try. It’s like the government agreeing that if somebody can’t work out what their taxes should be then they don’t have to pay them.
Reblogged this on No More Dead Pixels ………..
This will also affect people who want to use Creative Commons in the same way, it’s kind of trampled all over that!
But the act has also breached my terms and conditions, in the which I state no image alteration allowed and has to be used in correct context, payment etc. normally linked in the IPTC data. If these people have their way… then they could alter images or do anything they wish with them, as well as sell them so even my integrity will be destroyed
Thanks for the article Terakopian, I thought it was just me having a nightmare…
BJP have put up their piece http://www.bjp-online.com/british-journal-of-photography/news/2264780/controversial-copyright-framework-receives-royal-assent
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Just to clear this up, Enterprise and Regulatory Reform Bill Part 6 — Miscellaneous and general – 76, 3, 116A – 3 (page 69 line 12) says “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.” which brings the UK in line with most other western countries – most notably the USA.
This does NOT mean works you upload to facebook or other networks are orphans and to say so is to simply scaremonger and it is morally wrong for this blog to say such things.
What it means is that just like any other works art, design etc etc now comes under the same laws as written works. As is said orphaned works happen when no copyright is held due to death, or rights not being passed on to a third party.
What this law does is clarify that an diligent search must happen before a work can be declared orphan. This means that before an image can be used under the idea or orphaned work a reasonable search must happen and if it’s anything like what it is for books (which it will be) this must be documented. If it’s not or if this law is ignored then things won’t work our well, do a search for “google books orphan works” – the law is clear and just taking an image and claiming orphan is against the law.
Please now stop scaremongering.
It’s not a case of scaremongering. The term diligent search (which is mentioned in my post) is so non specific that it leaves room for interpretation. There is no definition of exactly what steps have been taken (and no mention of them being documented). On an internet with billions of images, it’s extremely easy to say one looked but could not find the author, especially as most sites strip out all metadata, automatically making images fir the orphan status. This Act is laying the groundwork for legislation which is going to harm a massive segment of the creative community, and most probably, photographers will be the most prominent.
A diligent search should be open and non specific. They cannot say “Use Google Image Search to find the owner”. Google Image Search could cease to exist and so these steps become void. Expecting any such specific steps in legal document like this is just a bad idea. A diligent search comes down to the interpretation in a court of law, the way it should be. You have TineEye, Google Image Search, at the moment these are the best tools we have.
While it’s easy to say that you looked but couldn’t find the copyright owner, you can show afterwards that it *is* easy to find the Copyright owner. Done.
My view is that the wording in the Act as it stands, is very much in favour of the corporation or individual trying to get away by using images for free. It’s not in any way geared to help author’s protect their work. Reading between the lines, it’s clear to see who this Act is serving.
I’m not suggesting it needs to state use X,Y or Z, but leaving so open to interpretation means that when a multi billion pound company steals an orphan work, the individual has no chance of beating them in a court of law when it comes to lawyers interpreting the definition as it’s so open.
It’s not fairly worded so far and is paving the way for disastrous legislation. Photographers and other creatives have a right to make a living. If this goes through, it will deny many that livelihood.
All (or most) terms in legislation are vague and non-specific by nature to allow for interpretation. If a piece of legislation needed to go through every possible situation and every definition they would need to be about the length of a novel. We have a common law system which allows the courts to make these interpretations. Adam is 100% right, and not only is it bringing the UK in to line with other countries, it’s bringing IP legislation in to line with the rest of English law on theft which already contains such a provision. Moreover it is likely ‘diligently’ will be given the same meaning as the similar concept has under s 2 of the Theft Act 1968, so there is a definition.
Ultimately it will be for the courts to decide how widely or narrowly to apply this act. It may be easy to say ‘I did a diligent search’ but is it easy to convince a court of that?
@ChasetheRabbits “not only is it bringing the UK in to line with other countries, it’s bringing IP legislation in to line with the rest of English law on theft which already contains such a provision.”
Again, I am afraid you are spreading rather bizarre misinformation. First, it does not bring the UK in to line with other countries, as there is only one country in the world which currently has (much more limited) orphan works laws, it on the contrary puts the UK out on a limb. Secondly, in what way do you think it brings copyright theft in line with other theft laws? There is no orphan works provisions for stealing cars off the street.
Simon I’m sorry but you’re mistaken there. Section 2 (1)(c) of the Theft Act 1968 states “A person…is not to be regarded as dishonest [and therefore will not be liable for theft]… if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps”
Furthermore in the case of R v Small [1987] Crim LR 777, the defendant was acquitted of theft of A CAR because he honestly believed it to be abandoned.
We’re talking about copyright theft here, which is a different criminal offence from theft under the Theft Act. Copyright theft occurs under S. 107 (2A) of the Theft Act – there’s no requirement of dishonesty, it’s a fairly strict offence from that point of view.
Sorry, that was a typo, that should have read copyright theft occurs under: S.107 (2A) of the Copyright Act.
You asked “in what way do you think it brings copyright theft in line with other theft laws?” I answered theft under the Theft Act 1968. You can’t deny that in changing the law on ‘orphan works’, parliament have brought this area of IP law in to line with theft, which is what I was stating to begin with. I am not contesting that this specific issue is one of copyright infringement.
I’m not trying to defend the government’s position in making passing this law, nor am I a fan of them snatching away peoples livelihoods. I’m simply stating that from a legal viewpoint, changing the law creates clarity and consistency, which will have a positive effect on justice.
How is it fair, to use your example, that if you take a car honestly believing that the owner cannot be found you will escape criminal liability; but if you use a picture found online in the same circumstances you will not be afforded the same protection?
Andy, sorry to be brutal, but I’m afraid that is just wrong and completely misleading:-
“which brings the UK in line with most other western countries – most notably the USA”
The USA does NOT have orphan works legislation. There was an attempt to introduce it, but it was squashed and for very good reasons.
“What it means is that just like any other works art, design etc etc now comes under the same laws as written works.”
Again, no, this is NOT what it means. Photographs have always come under broadly the same laws as written works. There has up until now been NO orphan works legislation for written works. Now however there is, since the new orphan works law apply both to written works and to photographs – just like most of copyright law.
“As is said orphaned works happen when no copyright is held due to death, or rights not being passed on to a third party.”
Again, no, this is incorrect. Orphan works are simply works where the owner of the work can’t be located. That could typically be photos you have uploaded to your private Facebook page that have somehow been shared outside your page. A third party is extremely unlikely to find you as owner of the image, which means that they will be able to go ahead and use the image for advertising or any other purpose, provided they pay a fee to a government licensing body.
Orphan works have nothing to with copyright ceasing after death – that happens automatically 70 years after the owner’s death.
If you’re going to try to correct someone, probably best to get it at least a little bit right, rather than spreading misinformation.
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I wonder if there are any photo storage sites that do not strip metadata? Facebook and flickr both do, how about 500px, razzi, etc?
Sadly the majority seem to strip off the metadata, as do general websites too. This is also crucial too – we need to put a stop to this practise as well.
Flickr does not strip metadata.
Actually this is quite terrible. As it is a break from what everyone else does. Essentially a corporation in the UK can take my images created in the USA and use them. They just have to remove the metadata and declare the works orphaned. It would be both expedient and profitable for an agency to do this. Thanks.
Indeed it’s most terrible; this will have an effect on every photographer worldwide.
Yes, very alarming, and as already commented – very low res, or heavily watermarked images isn’t exactly the best way of displaying work.
So, what happens if the photo is identified after its use? Like now, if infringement occurs you might bill retrospectively. I take it the new bill removes that compensation explicitly?
As the legislation hasn’t yet been shared, I’d say no idea at this stage. I shouldn’t think an author would be stopped from billing.
Well, there isn’t much practical change then really. Sure companies can say they have searched, but if they get caught using then they’re going to get billed. That seems to be end same end result as we have now when someone uses our images without licencing.
I’m probably missing something here, you don’t normally get worked up like this for nothing! So what have I missed???
“So what have I missed???”
The difference is that at the moment, the company who did that would be breach copyright, would be liable for full damages for copyright breach, as well as quite likely punitive additional damages, and at the same time they would most likely be committing a criminal offence. With the new law, they will be acting perfectly legally, and the copyright owner’s only remedy will be to go and claim whatever fee the government (licensing body) decided to license out your work for.
Ah, I see. That’s unacceptable.
There is no information on that point yet, but who ever uses the orphaned work will pay a licence fee to a Gov representative so you won’t be able to bill the user twice. Which means you have to go to the licensing body for compensation, but then you have no way of negotiating a price? That was the way it was thought to work from the last round of Orphan works that was stopped as far as I can remember
Thanks for the clarification Gary.
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This is a disaster not only for photographers, but for anyone who posts images online, whether through Facebook, Instagram or otherwise. It is the fault of an incompetent and greedy Intellectual Property Office, who don’t understand the digital age, and don’t understand the way the internet works.
Indeed.
Hi Edmond,
In answer to Alan’s question. I’m not sure why most social media sites remove the metadata. In my opinion, FB and Flickr were not/are not designed for professional image storage. I know artists use these sites (including Pinterest) for brand exposure, in this case watermarking is a must!
Further to Andy’s question. Meta data with images uploaded to our site, http://www.Exhibit-it.com (in beta) are carried through (used for keywording and completing a profile). Artist attribution is added to the video at the time of publishing. We believe there is a safer place for exhibiting artwork in HD video because the individual images are embedded.
I think that initially there was nothing sinister about removing all metadata. All websites did this from the start, purely to save space and make page downloads marginally quicker. In the days of dial-up internet these fractions of a kilobyte added up. I think the fact that this is still practiced is bad form. Storage and download speeds mean the extra fractions of a kilobyte extra don’t make any difference. The fact that image sharing websites nowadays do this, I fear does have sinister connotations.
In my opinion it should be illegal for anyone or any service to alter or remove an author’s metadata.
The Copyright Act appears to already contain various creator protections not only against ‘copying’ but also against ‘alteration’ – which one could interpret as the removal of metadata – which basically is an alteration of the file structure: particularly in this following section where “a computer programme” could be construed to apply to a digital image file – which is simply a ‘computer programme’ in so far as it instructs a computer to ‘show/create’ an image:
21 Infringement by making adaptation or act done in relation to adaptation.(1)The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.
For this purpose an adaptation is made when it is recorded, in writing or otherwise.
(2)The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.
For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.
(3)In this Part “adaptation”—
(a)in relation to a literary [F1work, [F2other than a computer program or a database, or in relation to a]] dramatic work, means—
(i)a translation of the work;
(ii)a version of a dramatic work in which it is converted into a non-dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;
(iii)a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;
[F3(ab)in relation to a computer program, means an arrangement or altered version of the program or a translation of it;]
[F4(ac)in relation to a database, means an arrangement or altered version of the database or a translation of it;]
(b)in relation to a musical work, means an arrangement or transcription of the work.
(4)In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code F5. . .
(5)No inference shall be drawn from this section as to what does or does not amount to copying a work.
But I am no expert in any of this so could be completely wrong.
Get over to Tineye and sort things out so that your work is always easily identifiable, sometimes even when amended or cropped.
http://services.tineye.com/TinEyeAPI
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I’m no photographer, just a fumbling beginner, so I wouldn’t know how to word a petition, but there’s this site http://www.38degrees.org.uk/ which has had considerable success tackling some of the plans of our idiotic government; I hope someone will take this problem there!
We’re looking into a petition; it’s important to word it perfectly (legally and so on) and so on, so will probably take a day or two.
No problem with it. All I see is misreading of the act, and scaremongering, which has been going on since this, and the USA bill were first proposed. Any image you upload to any hosting service or social media etc etc, requires an account or ID of some kind. On that basis alone, an image can no longer be classed as “orphaned”, as it clearly has a rights owner. You not replying to a request of use, or not receiving it, does not grant them usage, under this bill. Because by attempting to contact you, they have already ID you, making the image copyrights protected, under current copyright legislation. Even if someone else nicks an image, and puts it up for download, the image thief is ID’d as an owner, even though they are making an unlawful claim to it. So, unless you print images off, scatter them in the cover of dark, where nobody can see you, you delete all original images, and never publish them anywhere else, I don’t see what the problem is?
It has nothing to do with scaremongering. I have no benefit to scaremonger! I am extremely concerned though. Images are taken off the internet constantly, saved and reposted, re-uploaded constantly. Often by people who have no idea about copyright and sometimes by people simply stealing images. I have come across both. When this happens, there is no record of the image. It has a garbled file name and all the metadata (IPTC) is stripped off. This file now fits the orphan category perfectly. The entire wording of the Act as far as the orphaned works is concerned, is extremely in favour of the user and not the creator. We are concerned. This is our livelihood.
You, and thousands of others are caught up in this twisted story, which has been on the net for over a year now, when it was originally hyped up. Doesn’t matter about meta data, or anything like that. If the image has been uploaded by an account holder/site owner/jo blogs on the street (either you, or an image thief), then a work is no longer orphaned. So this legislation no longer applies to it. It ONLY applies to works that are orphaned, and to be orphaned, it has to have no trace of an owner, of any kind (real or not).
I have no doubt you have read some other stories similar to this one, in order to form this opinion of the legislation. But if you read the actual docs in detail, and with an unbiased view, you will see it actually has nothing worth worrying about, in it.I’m not saying you have anything to benefit from scaremongering. But like all these stories, and others like it, they do more harm than good, putting fear in the minds of people, when there is nothing to fear.
People ranted on about facebooks image policies, and how they strip data etc. Every image I upload to facebook, retains and publishes my copyright. So the stories of facebook horror were also hyped up, and twisted to be something they were not.
As a rule, I rarely upload anything bigger than 1000px, which makes it pretty useless for anything I’d be worried about loosing money on 🙂 And if I find anything nicked (I’ve had a few), I simply get them taken down.
Chris,
My colleagues and I have been discussing this in it’s various guises, since it began. It’s not a case of getting caught up in a hype. I’m certainly no lawyer, but I have my understanding of things, as do my colleagues with whom we have been discussing these issues for a long while now. There are clear dangers if legislation passes that is as one sided. Naturally I wish your understanding of these issues around image use and theft to be true, but fear you might be too optimistic.
What FaceBook and Instagram (to name one example) will do remains to be seen. By uploading though, you are handing over full usage rights and if I remember in faceBook’s terms, full copyright. I certainly wish no one gets stung, but legally, in this instance, the law will be on their side. I think even a 1000 pixel image can be stolen and used for web use. It’s not only about magazine quality TIFFs that we should be worried.
I prefer to play it safe by watermarking and opting out of services like Instagram (sadly).
As far as this issue with the ERRB, acting now, raising our concerns and campaigning our MPs will do no harm and it may just help our sliding industry remain upright a little longer.
“Any image you upload to any hosting service or social media etc etc, requires an account or ID of some kind. On that basis alone, an image can no longer be classed as “orphaned”, as it clearly has a rights owner.”
Chris, if for example you were to upload an image to Facebook, and the image is shared away from your page, and ends up in someone else’s hands, there is no way that they can find you through your Facebook account, since that account is private. If the government were to gain the power to search everyone’s Facebook pages for the owner of a particular image, that would create uproar about Government surveillance of private space. So there is no way in the near future that any diligent search is going to be able to trace your Facebook account.
There are billions of images out there which have been posted to the internet which one way or another have become detached from the original account of the person who posted it, whether it was through some forum that may no longer exist, through a social media account, through other photo sharing accounts. Those pictures continue to exist in the internet without any way of tracing them back to the original account that shared them on the internet.
In theory at some point there may have been an original account somewhere on the internet that the photo may have been traced to. It may be private, or it may be long gone. Or the account that seems to be the right one may be a fake one (see the current case of AFP/Getty v. Morel) over images posted from a fake Twitter account). So this idea that all images posted can be ID’ed to a particular social media account that the government and the public probably don’t have access to in the first place is pure fantasy land.
“So this idea that all images posted can be ID’ed to a particular social media account that the government and the public probably don’t have access to in the first place is pure fantasy land.”
.
Go back to my posting, and re-read what I said. That isn’t what I said……..
‘
“If the image has been uploaded by an account holder/site owner/jo blogs on the street (either you, or an image thief), then a work is no longer orphaned. So this legislation no longer applies to it. It ONLY applies to works that are orphaned, and to be orphaned, it has to have no trace of an owner, of any kind (real or not).”
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So basically, if a publisher comes across an upload of an image they wish to use, where the uploader has stolen the image, they would first need to prove that image was not theirs to upload, or that they were not a rights owner (if signed over in a deal with photographer). The only way to do that, is to locate/ID the original photographer. Either way, there is either a real rights owner, or someone claiming to be a rights owner. Therefore the work is no longer orphaned, and the sub sections of this legislation no longer apply to it. Plus the cost, in money or man hours, of doing such searching/tracing, would be more than the cost of commissioning someone to re-shoot or find a similar image.
Sorry, that doesn’t make sense at all. You seem to be assuming that the person who has the account/website where the image was found is pretty much always going to try to claim ownership of the image. That they’re going to want to commit a criminal offence (fraud). And that they are going to be able to prove ownership and that the licensing body is going to believe them.
Take a typical scenario: I post an image to Facebook on my private account – metadata is automatically stripped out. That image is shared and someone posts it to Pinterest without mentioning my name. From there the image makes its way around blogs and other parts of the internet. A publisher comes across the image on Pinterest or a blog and wants to use it. Google Image search comes up with nothing of course except a vast array of blogs. You seem to be arguing that either Pinterest or WordPress, or the account holder of whatever Pinterest account of blog the image happened to be found on is going to risk committing an offence and try to pretend the image was theirs. Or at least, that seems to be what you’re saying.
Of course, the proposals do open up the door to fraud on a massive scale, it’s one of the problems with the proposals. Criminals are likely to start harvesting orphan works (either in using them, or trying to claim ownership of them). But I don’t think that the vast majority of people will be fraudulent. I hope.
You may note one thing. 99% of blogs, hosting and so on, all have a section in their terms and conditions, which state that the uploader MUST be the rights owner of any media or content they upload. So by simply uploading it, they are making a claim to the rights, and there is no need for them to make further claims to the rights.
Check the IPO docs, and you will find things like this:
.
“Risks and assumptions;
Risk of actively “orphaning‟ work by ripping metadata, medium.
There is a justified concern particularly from photographers about the current copyright system, where
their work, once digitised, is appropriated by unscrupulous content sellers, and the identifying information
(metadata) is removed in order that the work can be presented as owned by the unauthorised seller.
The authorising body would not prevent such abuse across the copyright system, but it would make it
more difficult for a seller to explain the presence of work without metadata in a catalogue if they could
show no evidence of having registered it as orphan. This should make it easier for photographers and
others in this situation to pursue unauthorised users who are representing the works in their sale
catalogue as orphan.
The regulations for the authorising body will need to reflect what content should be part of the initial set
of allowable orphan works, and whether there is a need for commercial films and digital photography (as
found in picture libraries and forms the core of most current professional and semi-professional
photography). There is a case for including historical and archival photography, especially those found in
physical formats, and indeed Getty Images suggested that the orphan work authorising body restrict
itself to physical photos [32]”
“You may note one thing. 99% of blogs, hosting and so on, all have a section in their terms and conditions, which state that the uploader MUST be the rights owner of any media or content they upload. So by simply uploading it, they are making a claim to the rights”
I’m afraid again this is getting a little into fantasy land, and I have to go off and do some work, so I’ll be a little brief. Typical T’s & C’s don’t require you to be THE rights holder i.e.. owner of copyright. They merely require that you have the right to upload the image. Typically this means that you have a license to use the work, permission from someone who has the right to give you permission to use the image (which may not be the copyright holder, it is quite likely to be an agency very often).
So merely by pinning a work on Pinterest or wherever, you aren’t claiming to be the copyright owner by any means. You’re just taking responsibility that if the copyright owner shows up, it’s your risk. For a typical image that has been posted all over the internet, with your logic there may be a thousand sites all trying to claim ownership. This simply isn’t the case.
So sorry, this discussion seems to becoming far detached from reality or the way the world works. I agree with you that there will be enormous scope for fraud and that the Government’s proposals are a complete shambles and are a thieves charter, but not that the whole world is a crook.
Sorry, got to go now.
“Typical T’s & C’s don’t require you to be THE rights holder i.e.. owner of copyright. They merely require that you have the right to upload the image. Typically this means that you have a license to use the work, permission from someone who has the right to give you permission to use the image (which may not be the copyright holder, it is quite likely to be an agency very often).”
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And IF the T&C’s were that you only had to have “PERMISSION” to upload, that would once again make the image in question a “PROTECTED” work, and “NOT” and “ORPHAN WORK”. By definition, at some point, someone (lawfully or unlawfully) has either claimed ownership, or claimed permission from a rights owner. So how can a work be granted usage under the proposed legislation, as an orphan, when there is a claim of rights or permission from rights owner, on the image? And I quote from the IPO supporting documents…..
.
.
“Risks and assumptions;
Risk of actively “orphaning‟ work by ripping metadata, medium.
There is a justified concern particularly from photographers about the current copyright system, where
their work, once digitised, is appropriated by unscrupulous content sellers, and the identifying information
(metadata) is removed in order that the work can be presented as owned by the unauthorised seller.
The authorising body would not prevent such abuse across the copyright system, but it would make it
more difficult for a seller to explain the presence of work without metadata in a catalogue if they could
show no evidence of having registered it as orphan. This should make it easier for photographers and
others in this situation to pursue unauthorised users who are representing the works in their sale
catalogue as orphan.
The regulations for the authorising body will need to reflect what content should be part of the initial set
of allowable orphan works, and whether there is a need for commercial films and digital photography (as
found in picture libraries and forms the core of most current professional and semi-professional
photography). There is a case for including historical and archival photography, especially those found in
physical formats, and indeed Getty Images suggested that the orphan work authorising body restrict
itself to physical photos [32]”
Excellent summary. I was shocked to read it. After hearing rumours of this change last year, but surprisingly little coverage online and on my twitter feed, it feels like a wrecking ball through my work!
I must say I have an issue with watermarking for two reasons:
1. I supply product photography to my clients for use on their websites/social media. They don’t want my watermark visible on their work – although they love metadata as I include their info as well to improve SEO.
2. Even if done subtlety, it looks ugly. Show me a watermark that does not detract from the image quality, it’s like when Spotify plays an ad in the middle of your favourite track.
In my option (as the author of this article states), the creator’s info should be hard-coded into the digital file so it cannot be changed or ‘resampled’ by any platform it is uploaded to. Flickr is a good example of how this should done.
Naturally watermarking cannot be done to client’s images. My suggestion, and practice, has been to watermark anything that’s uploaded to social networking sites, my blog and so on. It’s a given that full IPTC should be on all images sent to clients, but it’s so easy to have them stripped off by the web, or by a malicious person, that it doesn’t guarantee any safety for the work. Let’s hope the future can bring a file system with locked metadata.
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Reblogged this on Eremophila's Musings and commented:
This is Orwellian!! A Government gone crazy and no longer working for the people!
I don’t live in the UK myself, but (obviously) this affects everyone, resident or no. I might, however, have an interesting way for those of you who DO live there to protest. Aside from contacting your representatives (or what have you), start taking tons of pictures of the guys trying to pass this thing. Post them all over the internet, identifying who they are and what they’re trying to do. People LOVE captioning things, so I’m sure it won’t take too long… 😉
This does indeed affect everyone who posts pictures on the internet, regardless of geography.
Your statement that the images can be used free/without payment to the author is incorrect (not surprising given that one of your sources is The Register). A fundamental part of the law is that that use of the orphaned work will require payment at fair market rate to a licensing agency which holds the money on the authors behalf. If the author is later identified the money is paid to them.
The real problems with the law are that use of a work in this way will damage the author’s ability to exclusively license the image for a higher fee (unless the licensing agency by default charges for an exclusive license).
Also this law wont work with photographs of people that are used for commercial purposes (advertising), because such use would infringe their image rights, which are completely separate from Copyright.
Whilst your comment is correct, my statement isn’t incorrect. The entire wording is very much in favour of allowing corporations and individuals get away with free usage of imagery as it encourages the widespread use of orphan works, after a “diligent” search for the author. Many will have their work legally stolen as a result. You then carry on quite correctly about rates. There is a market rate, but there are also differing rates within photographers and even for photographs from the same author. Some simply cost more. To be forced to have one’s prices dictated by a Government who couldn’t care less for the industry does not fill any working photographer with confidence. As far as the commercial use aspect, keep in mind that firstly not all images contain people, so those are at risk. Then we come to the fact that there are people who either don’t know, or don’t care about commercial model releases and so on – this happens already, but with the “freebie” the Act is providing, it’s going to be an open market in my opinion. Regardless, we need to take action and get this sorted; it’s not right.
No, your statement isn’t correct. Your claim that it encourages free usage is simply wrong, as I explained in my post. There is no free usage of these works. Before using them you have to pay a licensing fee.
Don’t get me wrong, I’m not in favour of this bill, but I’m also not in favour of factually incorrect reporting.
Thank you for taking the time to write the initial text and for answering the questions and also for the contributions of Simon Crofts. As someone who as experienced a copyright dispute with a global company – you are right to make people aware of the potential for abuse. Good luck.
Thanks for your words of support and sorry to hear you’ve had issues. Hope they are resolved satisfactorily for you.
Since when was copyright a human right?
And since when was the unauthorized copying of any creative work “stealing”?
I’m not a professional photographer, but I take a lot of pictures and do a bit of photo for a small non-commercial magazine.
And when I publish my photos online, I do the right thing and release them under a creative commons lisence.
So in my eyes this law is a step in the right direction of loosening the grip of the copyright monopoly and creatinge a freer culture.
Copyright is indeed a right; a human right. Yes, unauthorised and unpaid use of imagery is stealing, just as unauthorised and unpaid use of a jacket from a shop is stealing. Professional photographers make 100% of their income from their photography; selling image licenses is a huge part of this income. Hope it’s clearer now. Would you work for free at your day job? Then saying the CC license is the right thing to do may apply to you as it’s your hobby and you devalue the photography you do, but it’s not right for professional and semi professional photographers. Also realise that this Act opens up the doors to misuse and abuse of people’s photography and their subjects. Taking away from creatives (photographers, artists, musicians etc) the right to make a living, is quite wrong. What would you have them do? Go on benefits?!
Err, copyright is NOT a human right. It is a contract, first legally documented in the Statute of Anne 1710, between society and the creator to grant the creator limited exclusivity to gain financial or other benefit from their work before said work is made available general use to the public. It’s primary purpose is to encourage / reward creativity and to overall promote social and scientific progress for the general benefit of society as a whole.
Copyright maximalists have sought to push the period of copyright ever outwards to the UK current of life plus 70 years. This from an original position of 14 years in the Statute of Anne. Copyright has gone beyond a measure of recompense for creativity to an entire self-serving industry that works for itself and screws society at every opportunity. This has to change.
“Taking away …the right to make a living” is scaremongering. No one’s right to earn a living is being removed. No one’s suggesting that photographers will have to work for free – no more than musicians are working for free. Your headline is sensationalist and worthy of any red-top.
I do agree that there need to be new mechanisms to deal with the reality of digital publishing and that the landscape / goalposts are moving. And I don’t think that a centrally-run govenrment agency is necessarily the best way either.
If you are a professional photographer, for your own sake, you should take all appropriate means to protect your work – be it watermarks or not posting on unsuitable websites that allow uncontrolled sharing. Not just because it’s the law. Joe Public, on the other hand, will still want the world and their wife to see endless pictures of their best duckface, and won’t care were that picture ends up.
Steve, I guess you don’t acknowledge the Declaration of Human Rights because it’s a just a man-made multilateral contract that’s not set in our DNA. Maybe you’ve got your personal version of what you believe to be human rights, so you dismiss everything else. For all others:
http://www.claiminghumanrights.org/udhr_article_27.html#at29
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
“Err, copyright is NOT a human right. It is a contract”
Steve, I’m afraid that is complete misinformation. Copyright is most definitely NOT a contract. It is a property right. You can have contracts over the property rights, for example to sell them, in the same way that you can have a contract to sell your property rights (ownership) in your house. But copyright is not a contract. This is some kind of misinformed anti-copyright propaganda that you must have come across. But it’s quite simply wrong.
Yawn…..
Typical (ex?) lawyer – you’re still arguing the toss about technicalities a week later, without actually having added anything positive to the debate. I’ve re-read ALL your comments and although I managed to stay awake long enough, I wasn’t able to find anything you’ve said that has moved this debate forward one inch (roughly 2.5 centimetres for our continental friends’ benefit).
Just for the record, I am not “an enemy of copyright” – I’m an amateur photographer so I do have a vested interest in this and am not just stirring it up. I do believe copyright serves a valuable purpose but I also believe that the present copyright system is an enormous contributor to the problem at hand. My initial posts on this debate were in response to what I saw as knee-jerk and doom-mongering comments from Ed and others. I still maintain that there was an element of that but I’ve also learnt a thing or two – so it’s not been a waste of my time.
And as for this act – I’m still mulling over the possible consequences.
You on the other hand, having held up the USA as an example of copyright done right(!), would seem to be at the other end of the spectrum – you never did answer my question about what you think is a reasonable length for copyright. But that would require you to respond to a question with a straight answer.
Sorry Steve, I’m just trying to introduce facts – reality -into the debate, rather than misinformation. If you start with facts – and then move on to describing what you would like the world to be like, you might get more credibility. Rather than just saying that the world is flat because you would like it to be.
Copyright is a property right, not a matter of contract. Fact.
You’re interested in how long I think copyright should last for. I must admit to not having very strong views on the matter, willing to listen to arguments in both directions. But I believe it should be for the life of the author plus a period. Currently in the UK it’s 70 years. There are no doubt arguments for and against whether that’s the correct period, or whether it should be shorter or longer. I’m wiling to listen to arguments one way or the other, but it’s not the most interesting question for me – I’m not so sure why you are so desperate to hear my opinion on that particular matter. If it’s really important to you, I can have a think about it and come up with a number.
It is funny that copyright’s foes – and yes: SteveR clearly is one of them, no matter how often he denies it – do care at all about how long after the author’s death the protection might last.
Let me pose real life against theory:
Even if the existing 70-year period would be cut in half, we’d talk about leaving to the commons copyrighted pictures whose photographers had died in the late 70s. Fortunately, only few of those who took the most relevant pictures of those years really died young. Many are still alive and enjoy collecting their royalties.
That is to say: The immediate impact of such a change would be very limited. To enact a high short-term impact, a change would have to restrict the copyright to a VERY short period after life. Guess who’d be the hardest-hit victims. Just think of a young photographer dying of cancer or a reporter killed on the job during a war, leaving behind minor children. That’s why a reasonable period that society could agree on might rather be 20 than five or ten years after death. Is that an important improvement against today’s 70 years?
Let’s imagine a 30-year old photographer taking a picture today: If you murder him now, you’d get free access to his portfolio in 2033 (if you’re lucky, that’ll be right in time while they release you from jail). If you don’t help him along with leaving the planet, he might pass at a healthy 87 years. And you’ll wait for the booties until 2090. 😉
Oh, Steve, do you know what is really strange? You guys on the island have got a completely different copyright system than we have on the continent. But you and your colleagues over here say exactly the same, and it sounds pretty much like what your american counterparts say with again different laws. Maybe you think you found one-size-fits-all arguments. In fact they are one-size-doesn’t-fit-anything arguments. They are worthless all over the world because they don’t take the authors into account.
So do us a favor, take your pics, give them away, do a bad job, let others fool you by using your pictures in a way you don’t like. But leave us alone. Thanks.
It is NOT stealing.
When I take a jacket from a shop, that shop looses a jacket.
For something to be stolen, it needs to be taken away.
When I make an unauthorized copy of a photo or piece of music or whatever, noting gets stolen.
Using the word “stealing” about it just confuses the issue.
It’s not “stealing”. It’s “copyright infringement”.
Those are two different concepts legally and in principle.
Personally, I don’t believe that copyright should be a human right, and if the law says it is, I think the law should be changed.
What copyright is is a government backed monopoly.
And what I would have them do is to find ways to make money that doesn’t rely on that government backed monopoly. ie. create something that people are willing to pay for.
Musicians do it by creating close relationships with their fans, and by making limited editions and other kind of merchandise.
For artists is easier, since originality is valued, the original will be valuable, while the copies significantly less so.
A society where people are free to use the cultural expressions that surround them, to remix them, to play with them, to copy them, to change them and build on them, is a freer society than a society ruled by the copyright lobby.
Troll.
Absentidei
“And since when was the unauthorized copying of any creative work “stealing”?”
Ever since the law came into force, The Copyright Act.
Quote:
17 Infringement of copyright by copying.(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2)Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
(3)In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.
(4)Copying in relation to a film [F1or broadcast] includes making a photograph of the whole or any substantial part of any image forming part of the film [F1or broadcast].
(5)Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.
(6)Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
If you don’t understand it, which you obviously don’t or you would not have made the statement you made above, simply put (in section 3) it means ‘you may not copy without permission’.
Does this “freer culture” you hanker after include you leaving the keys in your car so anyone can come along and use it? That’s what you seem to be advocating.
By comparing intellectual “property” with actual property, you display a lack of understanding of both concepts.
If my car stood in the street, and someone had created a device that enabled them to make a perfect copy of my car, that would be quite fantastic, and would mean that we had a post-scarcity society.
“Since when was copyright a human right?”
Copyright is a human right under English law – it’s a property right protected by the Human Rights Act 1998 Schedule 1 Part 2 Article 1 (Protection of Property). Bit like ownership of your house.
Fail.
Copyright is nothing like the ownership of a house. It is not a “property right”. It is not a right at all. Which it is not explicitly mentioned in the HR act. If anything, the 2nd paragraph gives the Government permission to enact other legislation (such as this Act) which is “in accordance with the general interest”.
As I’ve responded elsewhere in the comments here, Copyright is a privilege given by society to creatives for a limited monopoly on the works before those works are released to society for it’s general advancement – “the greater good”
But copyrights and property are two very different concepts.
Actually. Copyrights go against the very concept of property.
If I buy a piece of wood, I am free to do with it as I please, to carve it as I please, to build with it as I please etc.
But if I buy a CD, it’s all of a sudden not my property.
Intellectual “property” is NOT property, and should not be treated as such by the law.
Now, whether or not a creative person should have some rights to control how his or her works are used, and to what degree and for how long a period of time, that’s something that should be discussed and regulated by law.
Personally, I think the law should be loosened up a bit, in such a way that making derivative works is ok, and that making copies for personal non commercial use is ok.
But copyright is NOT property and copyright infringement is NOT theft.
Sorry, posting from a mobile and in a hurry, so can only be brief. You could not be more wrong I’m afraid. Intellectual property IS property (the clue’s in the name). By law, rights are divided into two types – rights ‘in rem’ (property), and rights ‘in personam’ (personal rights). Intellectual property rights are very definitely property, it’s a fundamental point of law.
You may wish it otherwise, but wishing means little.
As for copyright theft, ‘theft’ and ‘stealing’ is the correct terminology as a matter of English. I wrote a blog post on exactly this subject not long ago. Don’t have time to access the link from my phone but if you Google my name and copyright theft it’ll no doubt throw it up.
I’ll read your blogpost later.
If intellectual “property” is defined as property in law, then the law is silly and ought to be changed.
I’m Norwegian, and as such I can’t really do much when it comes to changing English law, but here, there’s an election the coming fall, and I do know that my vote will go to the party wich views on intelectual “property” is closest to my own.
I suggest you read this blog post by Richard Stallman:
http://www.gnu.org/philosophy/not-ipr.html
His understanding of the issues is better than mine, as is his grasp of the english language.
“It is not a “property right”. It is not a right at all.”
Sorry Steve, but that is simply wrong, nonsense. It has long been established that IP are property rights in English law. This has been reaffirmed in recent case law. What’s more, it’s also the position in international law. If you have a look at the WIPO (World Intellectual Property Organisation, which is set up by international treaty) they describe intellectual property as:
“Intellectual property rights protect the interests of creators by giving them property rights over their creations.”
IP rights are similarly held on company’s balance sheets as property assets – for the simple reason that that’s what they are. In law they are a class of rights ‘in rem’ – i.e.. property rights. They are classed as what is known in law as ‘intangible property’. See for example wikipedia: http://en.wikipedia.org/wiki/Intangible_property:-
“It generally refers to statutory creations such as copyright, trademarks, or patents. It excludes tangible property like real property (land, buildings, and fixtures) and personal property (ships, automobiles, tools, etc.).”
This is the way that copyright works both in UK law and international law, it is simply a fact – it may be a fact that you don’t like, and wish was otherwise, but simply wishing doesn’t change it. It doesn’t help your argument to try to spread ill-informed misinformation in threads like this.
Maybe the enemies of copyright should imagine living in a world in which there is no intangible property. Not only that there would be no patent protection anymore, brand were also “free”. So anyone might sell “Coca-Cola” and “iPhones” but you would never know if you’re getting the real thing. You couldn’t rely on anything as a consumer.
Absolutely. It’s also generally held to be the case that the industrial revolution happened in Britain ahead of the rest of the world primarily because Britain was the country with the most developed IP-protection laws at the time. Without robust IP laws, the UK would never have had the industrial base that it gained in the 19th century, and we would be living in a much poorer country.
Nowadays, the US is the country with the most stringent IP laws (massive statutory damages for breaching copyright) and it’s no coincidence that IP-intensive industries accounted for 34.8% of the GDP of the US – the world’s largest economy: http://www.uspto.gov/news/pr/2012/12-25.jsp
No wonder the US is much more cautious about devaluing IP than we are over here. They’re not stupid.
Hi Simon
You said it yourself; copyright is a statutory creation. So while it is that copyright enjoys legal status, it is highly questionable to state unreservedly that it is a right. I have an unalienable and moral right not to be killed by my neighbour, but copyright only exists because society has deemed it an appropriate mechanism to both reward the individual and promote the advancement of society. So I would suggest that you need to define “fundamental point of law” more clearly. And calling something a name doesn’t make it so. There is plenty of disagreement as to the appropriateness of the term “Intellectual property” because it
I’ll ask you what you would consider fair terms of copyright, as a length of time for fair reward to be earned (or possibly earned) before that work is put into the public domain?
How does life plus 70 years benefit society for example?
However, as you’ve apparently held the USA up as a paragon of IP protectionism, I could have a good guess at what your answer will be.
“it is highly questionable to state unreservedly that it is a right.”
You can read the definition of ‘rights’ here: http://en.wikipedia.org/wiki/Rights:
“Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.”
S.1(1) of the Copyright Act 1988 states: “Copyright is a property right…”
The etymology of the word “copyright” consists of “copy” and “right”.
Since the Statute of Anne in 1710, copyright has been a core principle of western society. It was one of the crowning results of the Renaissance and the emergence of society from the Dark Ages – the rebirth of knowledge, and the right reward for the fruits (- the property created by) your creativity and ideas.
The Human RiIGHTS Act guarantees enjoyment of your property rights.
Whereabouts does the question of whether copy right is a right seem questionable?
“And when I publish my photos online, I do the right thing and release them under a creative commons lisence.”
In my personal view, this is the wrong thing to do and unethical – because it helps to destroy a thing that I love, high quality photography and the ability to make a living from it. It helps to destroy and important part of human creativity.
However, part of the lovely thing about copyright is that you have the right to do what you want with your property. This is what the Berne Convention says – you have the exclusive right to decide what happens to it, the ‘exclusive right of authorising reproduction’ of it. I will defend your right to act (in my view) unethically to the very last. If you want to give it away and do your bit to undermine the world of human creativity, you have a perfect right to do so, no one else can decide the fate of your baby – the fruits of your creativity, nor can you force me to give up what is mine, what is important to me. Until now of course.
Stripping of metadata is a GOOD and should always be a MANDATORY safety measure, just not good for more serious photographers.
I think the stripping of metadata is a bigger issue than most of us reading this think. The sheer fact we have read this post and commented neatly puts us into a little box of affected people with one important but still minority viewpoint. Yes guys, minority compared to the billions of pictures floating around out there. I am no different. BUT, has anyone asked why metadata is stripped?
I don’t think it is a throwback to saving data space, I think it is these companies are insurance conscious. Imagine your little 17yr old daughter on her FB, Blog with god knows how many followers and friends seeing everything, typically her house layout, what is in it, what she looks like, her neighbourhood, her fave place to eat on a Friday night, The fact she is home alone and bored on a particular night, the list goes on.
Then imagine a bad person having access to this and the metadata from the pictures that contains her address etc, she has no idea it is there like a few hundred million other people. She just put her details in when she purchased her new camera with its nifty install wizard. Metadata, what the heck is metadata?
Now imagine the furore when FB or similar gets sued when little Mary-Sue is axe murdered and the animal admits to how he found his victim. This is not a way out scenario. There is always more than one view to an issue. I don’t have the answers to the main ques in this post, just offering my thoughts on one segment of it. I personally want to keep my Mary-Sue’s safe.
Oh dear…
This is ridiculous. Teenagers don’t even know how get IPTC data into their pics. So there is no danger at all, just outright fear mongering. Those who use them are people who know what they do, and why they do it. There is absolutely no justification for sacrificing the artists’ universal human rights. Stupid teens have to be educated by their parents how to use modern technology. If those don’t, it’s their fault. Why should all photographers pay a very high price for a few users’ ignorance?
So someone reuses your work now. How do you gain recompense? You have to take them to court and prove they’re using your work without permission. This act changes that… not in the slightest as far as I can see. You can still prove ownership and use without permission in the same way.
Move along please. Nothing to see here…
Part of this act says that the Government will dictate how much you should get paid. I for one do not want a Government who clearly has no idea about my industry dictating what rates I should be charging. There is also the rather huge aspect of the entire thing being very much in favour of those who want to get away by using imagery for free. Alas I feel there is much to see here.
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Absolutely appalling!!… I have quite a number of photos on Flickr (most are marked for viewing by family only), and I use the Creative Commons licence on the public photos. How does this legislation (if passed) affect CC images?
It applies to all images which are orphan works.
It doesn’t effect your images at all, or any other CC images, because they are NOT orphan works, and you/others are clearly the owner/photographer. It would be nice if the author of this blog would state that. Instead he chooses to say “It applies to all images which are orphan works”, which isn’t a clear answer to your question, and gives an impression that it may apply to CC images too.
Come on people, don’t feed the speculation, be open and clear in your answers.
Reblogged this on Dodi Heru and commented:
UK Parliament is damn poor now? i mean, really poor in mind or what?
i feel sorry for all street photographers in UK or anyone who live in uk now…
hello. thanks for the blog.
I hope you dont mind that i reblog this. many good information inside this post
Thanks for sharing.
Cheers,
Dodi
Thanks for sharing it; important to raise awareness.
its my pleasure
Cheers.
There is a petition in motion now, please post the link and sign and share!
http://epetitions.direct.gov.uk/petitions/49422
Going viral as we speak.
Aware of the petition, which is a great initiative. Sadly the wording on the petition leaves out a load of key points, including the name of the Act. This should probably be signed anyway though, but hopeful that a better worded petition covering all aspects will be drafted up soon. In which case we should all put our weight behind that one too and get as many signatures as possible.
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#Stop43, This act will kill the Media industry. Photographers, artists, novelist and music industry. STOP IT NOW
This is just not photographers, but any digital media. So songs, Text, Videos etc.
I have an extensive library of music artist images on the Internet. I am extremely concerned that the information may be stripped out of hundreds of my images and used for free. The Enterprise and Regulatory Reform Act in this regard makes no sense at all and is a licence for others (including major corporations) to make money and/or build a reputation based on my work and the work of others. Further, I have to secure record company permission to take these images which are free to view on my site. If it was discovered by the music industry that my images of their artists/acts were being used to make money I could lose all access to concerts. As usual, ministers have dismally failed to recognise the implications of their actions and I suspect they have not sought the advice of photographers. Since discovering this information I have signed up to the various petitions. I hope many more photographers will do the same.
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It seems to me that the UK has effectively thrown out the basis of the Berne Convention, and images currently repinned to Pinterest, and images copied from one area to another in FB, will no matter how diligent the original creator is, be at the mercy of this appallingly badly worded act. The ramifications are simply appalling.
Please go and add your support to this FB page and also check out the link to the e-petition there:
we launched this FB page yesterday and working with other sites in the UK – please go and LIKE, and share this page (where you will also find a link to an epetition, which you should also sign and promote – please):
https://www.facebook.com/StoptheERRA
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Comparing copyrigts to trade marks, as Ulf-Jochen Froitzheim is doing in a comment I can’t reply for some reason to, is just silly.
Is someone who weren’t apple made an iPhone and sold it as an apple phone would be fraud.
When it comes to patents, I feel that as the situation is currently they do more to slow progress down than to further it, since manufacturers of consumer elctronics have to use more money on patent lawyers than on actually developing stuff.
But that’s yet another discussion that’s not really relevant to the topic at hand.
But anyways. There needs to be legislation regarding orphaned works.
It would be a big loss if all the orphaned works that are on the net couldn’t be used in some way by people.
“since manufacturers of consumer elctronics have to use more money on patent lawyers than on actually developing stuff.”
Do you have evidence for that? Statistics? Having worked for one of the law firms with one of the most expensive IP departments around, their fees were of course very high by most people’s standards, but I would have thought, relatively tiny in the context of a project. My feeling, having sent out lots of similar bills, that for a project of a several hundred million pounds in development costs, you would typically be looking at legal fees of perhaps ten thousand pounds in a simple case, perhaps a hundred thousand pounds or even two in a more complex matter – and of that the IP legal fees might typically represent, say, a quarter (usually there are lots of departments involved – tax, corporate, finance, etc.. If you’re talking about developing consumer electronics, that would typically be a tiny proportion of the development costs.
Registering patents etc. is of course trivially cheap – I am talking about more complex situations where there are disputes or other complexities and the expense starts to mount.
So: where is your evidence for this extraordinary claim?
Here you go:
https://www.techdirt.com/blog/innovation/articles/20121008/11413720641/last-year-google-apple-spent-more-patents-than-rd.shtml
Satisfied?
And while that might not be wholly accurate, it’s representative of a trend that’s fairly concering.
Read up a bit on the patent wars.
http://www.geekosystem.com/patent-war-infographic/
But anyways. This is a discussion about copyrights, and patents is a different beast.
Absentidei misses the point. Considering his (her?) remarks on patents, he (or she) doesn’t seem to like the concept of Intellectual Property at all.
Why is it “fraud”, i.e. a criminal offence, to counterfeit (abuse, steal, copy) trademarks if doing litterally the same with photographs, paintings, articles, books or songs isn’t?
Why should brands deserve better legal protection than patents?
The value of a brand, be it emotional, commercial or outright monetary, doesn’t lie in the trademark itself but in what’s behind it and what it stands for: the uniqueness of a product which is being protected by some form of copy-right. In fact, a patent is nothing else but the right to decide who may copy a technical invention (or the Coca-Cola formula and signature) for which amount. So there’s no _real_ difference between infringing the rights of R&D people, designers, graphic artists who create logos like the Apple, composers, writers or photographers.
Either all of their ideas and creations are entitled to legal protection or they aren’t. The details do differ due to different circumstances under which IP is being created. But IP as such is indivisible.
“Why is it “fraud”, i.e. a criminal offence, to counterfeit (abuse, steal, copy) trademarks if doing litterally the same with photographs, paintings, articles, books or songs isn’t?”
But you’re not literally doing the same thing.
If I were to make a copy of the iPhone and sell it as a genuine apple product, that would be fraud, since it wasn’t a genuine apple product.
If I copied a photo, that wouldn’t be fraud, because I at no point said I took it.
You’re making a strawman argument here.
If you got the time and inclination, you should read this essay by Richard Stallman:
http://www.gnu.org/philosophy/not-ipr.html
He has a better understanding of the concept than I do, and a better grasp of the English language.
And there are quite a few differences between patents and copyrights as well.
A patent is a government backed monopoly to benefit from an invention for a limited amount of time.
That’s another reason why patents aren’t property. (In a idealistic sense, not nesccarrily legaly)
It if were property, it wouldn’t be limited to a certain number of years.
Patents ARE Intellectual Property. It like you’re a Lord who owns a forest and are obliged by law to let the public in after the trees are grown up. Copyright is also limited to 70 years in most countries. And sorry, you don’t realize what the missing of IP protection would mean for branded products: If it was legal to copy the trademark and design and all technical details it would be legal to produce and sell such a clone. Doing something legal never may constitute a case of fraud. You could offer these products in a supermarket and let people believe they are authentic. No one would know. And if the quality was fine, no one would mind getting them cheaper.
That just to explain why IP is tremendously important for innovative companies. Unfortunately, we as writers, photographers and other creators of digitizable art have no chance to protect our work in a way they can.
“That’s another reason why patents aren’t property. (In a idealistic sense, not nesccarrily legaly)
It if were property, it wouldn’t be limited to a certain number of years”
In England flats (apartments) are owned on a long leasehold basis, typically 99 years, with a right to extend the period in certain circumstances. It’s not possible as a matter of law to own a flat forever without the land underneath it, so the usual system is to own a long lease, and this is generally regarded as the same thing as owning the flat. So by that logic, apartments are not property either.
By the way, the term of copyright is not 70 years. It’s 70 years from the death of the author – quite a big difference.
“It’s 70 years from the death of the author – quite a big difference.”
Of course you are right, Simon. I’m deeply embarrassed by my fault. I was distracted a little bit when I wrote that.
BTW: I’d be glad if people here in Germany would even understand and accept a 70-year term starting with creation. 70 years post mortem is status quo but under attack from “consumer protection” politicians who’d like to draw the line at maybe 10 years.
“A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.”
“What is granted (for a patent) is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.”
http://www.lawmart.com/forms/difference.htm
A photograph does not conform to this idea. It is considered a form of authorship, and why it attracts copyright; here’s an illustration why.
4 photographers can be standing in (almost as makes no difference) the same position, use the same camera, lens and settings, take a photo at the very same moment. And all will be attributed individual copyright on their own photo. But to the outside viewer, the photos are virtually indistinguishable. Obviously, without restraint, you would also get 4 completely different photos as a result. And copyright, rightly or wrongly, does not gauge artistic merit, only the artistic effort.
So the comparison to, and inclusion of, trademarks and patents doesn’t hold up and is also irrelevant to this discussion. Plus your “definitions” are wrong too – non-artistic products do not have copyright, and patents are about exclusivity – you are turning concepts on their heads and mixing terminology. Which is a prime example of why lumping all together under the banner of Intellectual property does not help the cause of any of them, unless it’s to maintain the status quo in favour of the rights holders, and only serves to muddy the waters; much as this discussion is wandering away from the merits of this act in affecting copyright.
So Ulf, I would contend that you are fundamentally wrong that “IP is indivisible” and that you are missing the point. And in response to your somewhat patronising suggestion that Absentidei doesn’t like the concept of IP, I certainly don’t – not the way it stands now and in the way the concept is frequently (ab)used as a obstacle to free speech, true innovation as well as shoring up the profits of large corporations through disingenuous practices and clogging up courts with fallacious lawsuits.
I could provide links, but as I said, this is just moving the argument further away from the blog’s main contention – that this act of parliament will seriously impact the rights of photographers and other creatives.
So feel free to pick holes in my response – neither you nor Simon seem either able to promote any positivity about the core discussion nor how you would address the issue, as you seem happier to snipe from the sidelines.
Steve, you are talking about the differences between different kinds of IP, I was talking about what they’ve got in common.
You say patents are about exclusivity while copyright isn’t.
Yes, patents grant the right to use an invention exclusively, but they also allow you to sell licences from day one if that’s the better business model for you. That’s very similar to the authors’ rights over here on the continent. We’ve got exclusivity as long as we like to exercise it. I know that british (or american) copyright is another cup of tea. From my perspective, the lines between patents and copyright are blurring, for example when it comes to software. There are good reasons for each opinion, so maybe it depends of the type of software (its artistic level) whether one or the other category fits better.
I’d agree with you that in some countries, foremost the U.S., big companies tend to misuse IP rights. But that doesn’t mean the basic principle is bad.
Back to the danger of willfully orphanized photos.
The best way to handle the orphan works issue is to avoid artificial or accidental orphanage. This would be the first step on the long road to a decreasing, instead of ever increasing, number of orphans.
There _is_ a technology that gives us the opportunity to put all legally relevant information concerning a particular photo right into the file. As long as nobody processes the photo in a way that strips it off this data, there’s no problem to recognize it as non-orphan. Routinely deleting the data creates huge numbers of pictures that cannot easily be traced back to its author anymore; it also cuts off the connection between the people depicted and the pic. People often forget that, in most countries, persons shown on photos also enjoy legal protection. Just one example: No one has to accept his face to appear in an advertising campaign without being compensated or just asked for permission. If this would happen, the photographer might be blamed or sued by his object for having sold the pic, and he would have to prove that he didn’t do that.
Maybe he’d also be prosecuted because he’d be suspected of tax evasion. The new British orphan works legislation is kind of an invitation to negotiate secret deals. You just need a virtual middleman who orphanizes a photo, then you can conduct tax-free business, moonlighting photography so-to-say. Customer: “I didn’t pay anyone for the pic. It’s open domain because it’s orphan.” Photographer: “Me? No, I didn’t sell the picture to anyone. Someone must have downloaded it illegally anywhere from the Internet.”
It’s weird to even think of a trashing useful information if we, at the same time, proudly claim to live in an “Information Society”. It’s pretty easy to leave all the information in its place, and governments could help by acknowledging the fact that this information is necessary to avoid an abundance of costly lawyering and trials. IPTC data help talking to the photographer if one wants to licence it – for money or for free. Allowing for the orphanizing of works just does the opposite: It creates a mess for everyone involved.
It is just too easy for someone who wants to use a nice photo without paying the photographer: Create one or more fake account(s) with a social network, cloud-upload a pic that you found anywere online, download it with your normal IP address, and voilà, here you go with your free artwork.
So what’s needed? Deleting metadata out of someone else’s pictures should be prohibited by law and strictly prosecuted. It has to be very expensive, high punitive damages should apply by default. The public should be educated what all the information is for and why it must be there.
Anyone who likes to donate his own work to the public domain may do so, it is easy to include Creative Commons Licenses with the photo file.
Reblogged this on Thorir Vidar.
“If I copied a photo, that wouldn’t be fraud, because I at no point said I took it.”
Copying a photo may well be fraud, depending on the circumstances.
Incidentally, recently the IPO were trying to argue that stripping metadata from a photo would be fraud, again depending on the circumstances.
Yes. Copying a photo might, depending on circumstances, very well be fraud.
And in those cases I agree it’s wrong to do so.
Sorry, I was typing too fast. Please excuse my typos.
Marking a product as “Made by apple” or something similar, that wasn’t in fact made by apple, would be fraud.
Now, I’m not in favor of abolishing patents, just so make that clear.
But I DO believe that there should be some changes as to what could be patented.
Apple have patented icons that are “square with rounded corners”.
Seriously. Don’t anyone else see that that’s crazy?
You see there’s a difference between making a product that’s similar to an existing product and selling it as a cheap copy and on purpose deceiving consumers about who has made the product you are selling, right?
But back on topic.
How do you believe the law should threat orphaned works?
What should be the definition of orphaned works?
“How do you believe the law should threat orphaned works?”
This law is a threat to many works that aren’t orphaned. It shouldn’t be. Or did you mean treat? Dealing with real orphaned works is not at issue here at all. This is about works that are willfully made orphans though there still are parents. This is why the metaphor is so convincing: Making a work with parents an orphan means killing its parents.
More to the point is this one:
“What should be the definition of orphaned works?”
An orphaned work is one that fulfills all of the following requirements which put the emphasis on public interest instead of commercial exploitation:
a) It is a unique creation that can be neither replaced by something similar nor re-created by someone else, for example a rare picture of a deceased person or a destroyed building. (By default, any photo of the Mont Blanc or the Eiffel Tower or a sunset by the sea would not qualify because there is an abundance of such pics. The same would apply to portraits of professional photo models.)
b) It is suitable to deliver a valuable contribution to society, be it in science or the arts. (Any picture that shows unknown persons would automatically be excluded to protect their privacy.)
c) It’s creator could not be found by thorough research conducted honestly.
d) The search has been documented carefully.
e) It was found at a source that does not routinely remove copyright data like IPTC.
The purpose of a law governing the treatment of orphan works must be to make publicly available just those works that are relevant and would otherwise be inaccessible. The purpose must NOT be making accessible as much works as technically possible, bei it for the sake of accessibility or for the sake of profit.
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It’s enough to make me want to block all IP addresses in the UK from contacting my personal photography blog. As a geek, I can do that – I’ve already blocked China and Russia. Next thing you know, nobody wants to allow UK addresses across their network, and then they don’t have access to anything they can steal.
Considering people (i.e. everyone) from your average blogger, social networker, steal images on the internet ALL THE TIME, I’m not too shocked about this. The few clients who actually do license photos from stock houses and wire services lie about their intended usage, to lower the licensing fees. The image companies then in turn lie to their photographers about their sales and royalties. The whole industry is a joke.
And as for this UK bill, paparazzi killed the future King’s mother. Then, they stalked his wife -the future Queen- and exposed her naked to the world. Hmmm… Didn’t see any repercussions from that coming… The bill received “royal assent,” did you say?
The industry is dead. It has been dead for ages. Between citizen journalism, social media, the decline of print, the wire services lowering the percentages to almost nothing (Getty Images pays their photographers 30% of their image sales. They have to trust Getty to provide them with their sales reports. What kind of job security is that?!)
Taschen publishes coffee table books on photography by making them larger then your coffee table. Phaidon publishes photography books by making them thicker than the old Yellow Pages telephone directories. Without these silly gimmicks, who would buy a photography book these days?
Stop complaining about your “rights” as a paparazzi, such as the right to stalk people and ruin their lives to make a buck, and just except the fact that your career is OVER.
You make some extremely valid points. I object though to being called a paparazzi; you either don’t know what the word exactly means and the fact that it’s demeaning, or you’re not familiar with my work and the work of the majority of my colleagues who go to great lengths in covering stories, often putting their lives on the line. Sadly some lost their lives over the last couple of years and others “only” lost limbs. I’d suggest a tad more respect might be appropriate.
As far as the tragic death of Princess Diana, the paparazzi weren’t to blame; they were far behind when the accident happened. I think it was either down to bad driving; i.e. going far too fast in a big, heavy car or something happened in that tunnel that has yet come to light. Regardless, may she rest in peace.
You have a few valid points though.
I know the difference between a paparazzi and a photographer: respect for the subject you are photographing. No respect = paparazzi.
Indeed one must respect the subject they are photographing (mostly); you need to realise that a part of a news photographers job is investigative work on criminal types. This is our duty to the public, keeping an eye on dodgy politicians and others in positions of importance, murderers, paedophiles and so on; don’t have much respect for those people though, but still the same level of journalistic professionalism applies.
Were you implying that I don’t have respect for my subjects in general? Or that my colleagues don’t? If that’s what you were saying, I would suggest you spend a little more time looking through my work or the quality work produced by the majority of my colleagues.
As far as the paparazzi, I have my personal dislike for them and the way they have brought my industry into disrepute. The sad truth of the matter is though that society craves their work and is willing to pay much more for buying publications filled with paparazzi pictures than any proper publications with photo essays on subjects that really matter to humanity. All you need do is look at ABC (circulation) figures or spend half an hour in any shop selling papers and magazines. Paparazzi photographers can sometimes make more money in one day than a photojournalist can covering wars, famines, social issues for a year or two. There is no justice in that, but it’s a price set by the consumer who is free to choose what they buy and they buy, on mass, trashy publications full of celebrity nonsense. As a result these publications attract more advertising and pay much more for “good”, exclusive work.
Re the IPTC data getting ripped out by social media sites etc.
What to do about it?
I reckon some of the US laws ( I strongly suspect the DMCA) about intellectual property talk about circumvention devices. Devices used to defeat copy protection.
I’d suggest that IPTC data is part of the copy protection so using a computer program to remove it and therefore make the image more vulnerable to theft or illegal use would be a breach of that act.
The problem is that the terms and conditions of the site might cover this possibility, but I’d suggest that this might be an avenue that might be pursued.
I realise that this article is now over 10 years old. Since 2013 the ability for photographers to control their copyright has seemingly spiraled out of control. Each copyright claim takes many hours to challenge, negotiate or escalate to the IPEC court- with no financial return other than to compensate for the infringement itself!
Over the years we have also found ourselves battling what is the judiciary system. The chancery issue live in a world all to themselves. Rarely do they pick up the telephone, only replying to emails when they want. Make horrendous mistakes, such as ignoring requests for a ‘Judgement by default’ in cases where the Defendant/ offender refuses to reply to the claim.
In short the CDPA 1988 is no longer fit for purpose and gradually the taking of other people’s work for commercial gain has become normalised.
Copyright will soon become extinct if photographers don’t act now..
I would like to petition parliament with a view to getting the scale of the problem across. Making a claim should be much simpler, also allowing you the creative to claim for your time spent, as well as there being more punitive measures for those who flagrantly take.
I would love to hear from any of you who feel as we do and hopefully together in numbers we can spread the word across the industry and create a lasting change.
Thanks
Helen