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Undermining Digital Britain

A photographer yesterday, after reading the Digital Economy Bill

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.

jeremy moore - Simon,

I’ve posted your link on

Hope that’s OK!

scrofts - Hi Jeremy, of course, please do, the more who know the better!

Ian Miles - Hi Simon

Great piece. Could I use it as a basis for writing a letter to my MP?



scrofts - Hi Ian – please do! :)


Donna Stark - I’ve posted a link to this on my blog:-

Hope you don’t mind. You pointed out the flaws much better than I can!

scrofts - The more attention these issues get the better. Let’s hope that enough people in Parliament listen.


Museums Computer Group » 15/02/10 The week in cultural heritage online - [...] on the use of orphan works, arguing the greater benefits to education and research. This week,some photographers were up in arms about the potential threat to photographers’ livelihoods. It must be [...]

A Photo Editor - UK Close To Approving Orphan Works - [...] Simon Crofts has a post about it (here), where he [...]

uberVU - social comments - Social comments and analytics for this post…

This post was mentioned on Twitter by josharcher: The Digital Economy Bill – another bit of essential reading here, time is running out.

Arty Smokes - Your article is flawed because of the definition you relegated to a footnote. You wrote: “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.” (my emphasis)
Pretending not to know who the creator was does not make it an orphan work. Pretending not to know who the creator was would make the publisher guilty of intellectual property theft and/or fraud. The Digital Economy Act will NOT mean the end of copyright and freedom to publish whatever someone likes without paying. Please stop incorrect speculation like this from being accepted as fact. The last thing photographers need is more paranoia.

Photogs Wary of UK’s Digital Economy Bill - [...] Simon Crofts: Undermining Digital Britain [...]

scrofts - “Pretending not to know who the creator was does not make it an orphan work.”

Practically there’s no difference between pretending not to know and not knowing. Unless you can prove that they were pretending. And of course you would have to find the image use before you could even think of start trying to prove that.

So for all practical purposes, orphan works include where the person pretends not to know.

That is part of the point of the blog post – the new legislation will reward dishonesty.

Jorge M Machado - I had recently given up on adding watermarks to my images… Looks like I’ll be reverting to old habits from now on.

Ducktrap Photo - I take a lot of pictures in my retirement. This is a terrific site and I’m so glad to have found it. As a photographer, it’s always nice to see other people’s work and read about their tecnniques and such. If you have a moment, take a look at my gallery at and let me know what you think. Cheers!

subjective theory of value - - [...] every pitch because there are too many factors that influence the value of that ball trajectory. …Undermining Digital Britain Simon CroftsSome images have a reproduction value for certain uses of perhaps £1, other images may be [...]

The Hargreaves Copyright Review. It’s a soggy meringue. » Simon Crofts - [...] learnt anything from the failures of the preceding few. I’m talking about that old chestnut: orphan works. Orphan works are images where the person wanting to use an image doesn’t know, or pretends not [...]

The Department for Big Business Exploiting Other People’s Innovation, Property and Skills » Simon Crofts - [...] a quick read through the article in The Register. Or you can read some of my earlier blog posts here and here that go into just a few of the serious problems with earlier orphan works proposals. [...]

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