Parliament is currently considering a new law called the Digital Economy Bill which is supposed to help create a ‘ Digital Britain ‘. Unfortunately, the draft legislation seems instead aimed at making it difficult for photographers or other visual content creators to show their pictures online or distribute digital copies of their images. Hardly conducive to promoting the internet or an efficient digital economy.
The fly in the ointment is in the orphan works* provisions. These seems to have been badly thought through and hastily thrown together with inadequate consultation.
The Government’s idea is to take control of licensing and pricing of orphan works away from copyright holders and give it instead to one or more central licensing bodies. The proposal is awful news for image creators because:-
- It doesn’t just affect orphan works. Although in theory the provisions only apply to ‘orphan works’, with new methods of distributing images digitally both on the web and from computer to computer, orphan works are a huge and increasing pool of imagery. They are influential enough to seriously affect the price of imagery for the whole market. Because market pricing will inevitably move towards the lowest common denominator set by the central licensing body, this will undermine the determination of prices for imagery as a whole.
- It will reward theft and dishonesty. Very many of the orphan works are created by theft of imagery, with the deliberate stripping out of information about the copyright holder. The new system seems to be aimed at encouraging and rewarding such illegal behaviour.
- Copyright will no longer be copyright. The proposal strikes at the heart of that cornerstone of creativity – the right of the content creator to control and license the making of copies of their ‘babies’. There is a good reason why it is called copyright!
- Nobody knows what this bit of the Bill really means. Given the importance of all this for creatives, the new provisions are extraordinarily vague – it tries to sweep the issue under the carpet by allowing the Secretary of State to adopt more or less whatever provisions he wants on the matter, without any supervision from Parliament.
- It will undermine the freedom of the internet. The Bill will stifle creators’ ability to place images online without disruptive watermarking or to deliver images in digital form to clients, achieving exactly the opposite of the intended effect of promoting the digital economy. Once digital copies are out there, the image creator will lose control of their images and the right to sell them at a price determined by the open market. Our reaction will be to make sure that images don’t get ‘out there’.
- They will give away images with no account of their actual value. Some images are much more valuable than others. Some images have a reproduction value for certain uses of perhaps £1, other images may be licensed for the same uses for hundreds or even thousands of pounds due to their quality, their rarity, their creativity, their exclusivity, or the extent of effort and cost that has gone into producing the image. A centrally determined price will be totally unable to take proper account of these subjective market influences.
- No right of moral objection to the use of your property. A copyright holder might not even want to license his image out at all – for example, if it to be used to promote a racist organisation such as the BNP. We will lose the ultimate right to say ‘no’ to the use of our images in ways we find morally objectionable.
- Last nail in the coffin for content creators. The position of image creators has already been seriously undermined by the development of a free culture in the digital economy, widespread image theft, widespread availability of images online for free or nominal payment (eg. ‘creative commons’ images on Flickr), and the difficulties faced by the client bases such as media organisations trying and failing to make money from the online content, which has led to the near-disappearance of the market for editorial imagery. All this ultimately has an effect on the quality of content provided to the British media. In the end, good quality content needs to be paid for, not stolen.
The Bill should be aiming to promote a balanced digital economy, not a system of legalised digital theft. Not surprisingly, the Bill is causing a storm of objection among photographers and other visual content creators.
* Orphan works are images where the person wanting to use an image doesn’t know, or pretends not to know, who the image creator was.