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The UK Government wants to sell your Facebook photos without your permission

The UK Government is at the moment pushing a bill through Parliament called the Enterprise and Regulatory Reform Bill which includes an audacious attempt at the collectivisation of private property. Lenin and Molotov would have been proud. Of course there have been ongoing attempts within the creative industry to fight it, and the latest news is the threat of a court challenge.

But while all this is bringing photographers and other creatives out in a sweat, what few seem to have noticed yet is that it also aims to give the Government the right to sell private individuals’ pictures posted on social networks like Facebook without their consent or knowledge.

If that seems incredible – it is, but it will become law in the UK in a few weeks time unless someone stops it. Facebook users are going to be particularly vulnerable to having their private snaps sold, because the images posted on Facebook are not indexed by Google Images. And if you think that making your profile private will protect you then think again – paradoxically, it may make you more vulnerable to having your pictures used without your permission.

So how does it work? The problem is with the proposed Section 68, which deals with what are rather enigmatically titled ‘orphan works’. A photograph is an orphan work if someone somehow obtains a copy of it, but can’t work out who the owner of the photo is (or perhaps even, conveniently forgets).

If the Government has its way, if one of your private Facebook photos finds its way outside your account, perhaps copied or shared by a friend, or copied by a friend-of-a-friend, then you have lost control of it. Once that happens, anyone can use that image for whatever purpose they want. You could find your photo on advertising campaigns, or promoting extreme political, racist or homophobic organisations, or in anti/pro abortion publicity materials. The person who wants to use the image just has to make an effort to find out who is the owner of the image, and if they can’t find you (and especially if your Facebook account is private, there is no hope of finding you) they will be able to pay a Government body a fee to use your picture, and go ahead and do so. In the unlikely event that you ever find out about it, your only recourse will be to ask the Government to pass the fee on to you – you won’t have the right to object to the use or claim damages.

In the meantime of course, for the vast majority of people who never find out that their images have been pinched, the Government will be making a fortune in licensing fees that are never reclaimed. You can see the attraction of the wheeze.

[The room in the Intellectual Property Office where the Bill is thought to have been dreamt up]

Of course, the law isn’t only going to apply to Facebook images, it will apply to any images that you either post anywhere on the internet, or simply hand out copies of to anyone at all, whether they are prints or in digital form. But Facebook users will be particularly vulnerable since their profiles are usually private, so any picture that makes its way outside the account and away from immediate friends will almost automatically become an ‘orphan work’. And there is no way that the Government can exclude the likes of Facebook from the scheme – because by their nature, no one knows where an orphan work comes from, there’s no way of knowing if it came from Facebook or not. So even if the Government wanted to avoid scandal by excluding the likes of Facebook from the scheme (and they’ve shown no indication so far that they want to) they simply couldn’t.

Here is the current text of the Bill. I’ve underlined the core bits to make it a little easier to digest. They deal with orphan works and what is called “Extended Collective Licensing” (which also gives the Government the right to license out your pictures without your consent). You can see the full text of the Bill, and its progress through Parliament, on Parliament’s website here.

Richard Kenward - Very well explained. It’s a great shame that there is such a lack of understanding about this issue as it really does effect a huge number of people.

It is certainly not just those people in the creative world who depend on getting a decent return for their efforts without which they cannot continue to work.

Having proper safeguards means that the man or momen in the street is better protected from being taken advantage of by especially the big organisations. These organisations want to grab YOUR material for nothing and exploit it to build their empires. Is that really fair? Those who create need protection whoever they are.

Andy Mabbett - You appear to have overlooked para (3): “…for a work to qualify as an orphan work, it is a requirement that the owner of the copyright in it has not been found after a diligent search…”

Tony - It would be virtually impossible for a photo on Facebook to ever be an orphan work since unless something has gone apocalyptically wrong they will always know who uploaded it. The same with virtually all social networks. The one place you might have issues is if you publish lots of pictures of cats that get captions added to them ;-)

Simon - This is a hysterical and poorly written piece that demonstrates a dire understanding of the law. Don’t give up the day job.

scrofts -

You appear to have overlooked para (3): “…for a work to qualify as an orphan work, it is a requirement that the owner of the copyright in it has not been found after a diligent search…”

Not overlooked it. There is no way that a ‘diligent search’ (whatever that means, which is entirely unclear) could find an image on a private Facebook page. Preventing other people from seeing or finding the image is one of the reasons that people make them private in the first place.

scrofts -

It would be virtually impossible for a photo on Facebook to ever be an orphan work since unless something has gone apocalyptically wrong they will always know who uploaded it.

“They”? Who are “they”? The person who has uploaded the image to Facebook may know that they have done so, but there is no way that the person who is holding an image which could have come from absolutely anywhere is going to find out that it came from a particular private Facebook page.

scrofts -

This is a hysterical and poorly written piece that demonstrates a dire understanding of the law. Don’t give up the day job.

It looks like the ‘Intellectual Property Office’ propaganda department (sorry, ‘Business Outreach Team’) have found the blog. Welcome!

Pat D - Thanks for bringing this up.

It’s worrying, though not a surprise, that the Government is going to legitamize the pervasive attitude towards creatives! One gets used to having ideas & images ripped off by friends, acquaintances, colleagues & strangers over the years, without a thought of remuneration or creditation but now the Government wants to endorse it in law, so long as it’s claimed that it’s origins are unknown.

Regarding your detracting “Troll”, once their hysterics have subsided, they should qualify their objection, rather than merely stating it.

Regarding provenance, the moment any person “Saves as” an image from Facebook or anywhere else, the trail to it’s origins is probably broken and from that point it would be very easy to claim that a “diligent search” came up with nothing. It would then be down to the original creative to expend time and money to get credit. Something few will do.

Maria Falconer - Hi Simon
Thanks for going to all the trouble to explain this in lay person terms.
I can’t quite believe that the government feel that they have the right to simply claim money for work that they didn’t make and have no connection with – for me it’s very simple – if you don’t know the author then you don’t use it – simple – it has absolutely nothing to do with the government who appear to have created another ‘license to create money’ scheme!
Do let me know if there is anything I can do to protest – petitions, letters etc.
thanks again.
Maria

scrofts - “Do let me know if there is anything I can do to protest – petitions, letters etc.”

Will do Maria! I think we will be hearing a lot more about it in the coming weeks, and a course of action or two will be presenting itself :)

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