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.