"The frequency of major reviews of IP (four in the last six years) indicates the shortcomings of the UK system" - Hargreaves Review

... and the latest review from Hargreaves doesn't seem to have 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 to know, who the image creator was.

Hargreaves' proposals for orphan works legislation can best be described as half baked. The review has plenty of smooth management-speak fluff (I savoured "Evidence Driven Policy" - it would have been better if they'd focussed more on giving us an "Understanding Driven Report").

There is still hope. Sometimes our MP's can demonstrate encouraging amounts of common sense when looking at draft legislation. Last time we went through this, MP's finally understood that sweeping orphan works proposals would be disastrous for the cultural sector and unworkable.

What the Hargreaves Review is Suggesting

The report puts forward a two tier system of copyright protection. Hargreaves' idea is to introduce what looks very like (though he doesn't call it that) a registration system for copyright. Content creators who are interested in protecting their copyright would be faced with little alternative but to register their images in a "Digital Copyright Exchange". This "DCE" looks like something half way between a register of ownership and a massive stock agency (or conglomeration of stock agencies).

The problem for photographers comes with the next bit.

Anyone wanting to use an image where they didn't know who the author was (or, more cynically, pretended not to know) will, according to Hargreaves, simply have to do a search of this new Digital Copyright Exchange, and if that search doesn't show the owner they can go ahead and get a licence issued by a government authorised licensing body - most likely, the DCE itself. The image would be licensed out in return for payment of a 'nominal' amount. In legal parlance, 'nominal' means something symbolic, typically around £1.

"... in most cases the fee for use of orphan works would be nominal, recognising that the works involved represent a national treasure trove. We recognise that there will be concerns from some rights holders who fear that a growing resource of almost free to use orphan works could injure markets for other works. This is a good example of a case where wider economic interests outweigh the perceived risks to rights holders."

Hargreaves is right about one thing here, and that is that his proposals would cause damage. A lot of damage.

Oddly, he contradicts himself at the beginning of the report, where he says "This is a move with no economic downside". Perhaps what he meant to say may have been "This is a move with no economic downside except for the final collapse of whatever is left of the market for creative content".

Why it couldn't work

The Digital Copyright Exchange bit of all this may or may not be a good idea - the devil would be in the detail. The orphan works proposals on the other hand, as described by Hargreaves would be a disaster. Why?

Unregistered works would lose copyright protection:

Yes, I know that strictly speaking, unregistered works would still have copyright attached to them. But that right would be worth little. A copyright owner would only be able to enforce copyright protections where they could prove that the person wanting to use the work knew who the owner of the image was and went ahead anyway. Otherwise, that person would be fully entitled to pay £1 and use the image as they wished. If the owner of the image found out, they could claim no damages at all for the use up to that date (except, perhaps, for claiming the £1). Yes, they would then be entitled to negotiate a license for future use, in practise that would very rarely happen. The state sponsored copyright thief would simply move on to the next £1 image.

Proving someone else's knowledge is notoriously difficult and expensive, and in most cases impossible. Even clients who had received the image directly from the copyright owner could quickly and conveniently 'forget' the identity of the owner. Many supposedly reputable organisations are notorious for doing this systematically already. The orphan works legislation would do nothing to cure their collective amnesia.

The real practical effect of Hargreaves' proposals would be to remove copyright for unregistered works as far as UK law is concerned in all but name, except in the few cases where the copyright owner could really and positively prove that the person using the image couldn't possibly have not known their identity.

The proposal would create a copyright thief's paradise, and provide a reward environment for criminality, negligence, and cynicism.

The overwhelming majority of works will be unregistered

Most of the world's copyrighted works would to all intents and purposes lose copyright protection in the UK, as described above. It's unlikely that images pasted on Facebook or blogs would be registered, unlikely that content creators in South Africa would rush to register their works in the UK, so the overwhelming majority of copyright works could be used in the UK freely with a quick search of the register, and payment of £1 or so.

Only a tiny proportion of the world's millions of billions of copyrighted work could register in the "Digital Copyright Exchange" - and it seems doubtful search facilities in the exchange might actually be able to find anything effectively in a register that (if rights holders really did register en masse) might perhaps be comparable in size to the entire internet - or even bigger. I have perhaps 100 or so images on my website, but if I had to register my images for copyright protection I would be looking to register somewhere between 50,000 or 100,000 of them.

A two-tier system fail

Two tier copyright systems, with different levels of protection for registered and unregistered works is nothing new. In the US, there is a two tier copyright system, where images that are registered have massive statutory damages attached to breach that really makes offenders think twice. UK photographers would no doubt absolutely love it if something with the protection comparable to the US system was introduced in the UK.

The problem is, that, apart from being two-tiered, Hargreaves' proposals look nothing whatsoever like the protection in the US. In the US registered images have powerful statutory damages (up to $150,000 for 'wilful breach', but in any case not less than $750 for the most innocuous breach) attached to each copyright breach, while unregistered images have a more 'normal', in practise, relatively inadequate, level of copyright protection. Hargreaves proposal is that unregistered images in the UK will have next to no copyright protection, while only registered images will have a 'normal' or slightly enhanced, copyright protection.

He does mention the possibility that registered images might have higher damages:

"Incentives that the Government should explore include: providing that remedies, including damages, are greater for infringements of rights to works available through the licensing exchange than for other works"

That is a feeble statement. If the idea is to introduce powerful statutory damages like in the US - then he needs to say so, clearly.

Orphan work licences wouldn't work anyway

So, you've bought your £1 licence to use an image, and stick it in your ad campaign. You then discover that the image comes from the US, and it was registered for copyright protection there. You have perhaps a $150,000 law suit on your hands for each image used. The £1 license that you bought from your UK licensing authority turns out to be worthless. If this scenario seems fanciful, then ask the Daily Mail, who are currently being sued for $1,000,000 in the US for using several images without permission (they're being sued for $150,000 per image). As things stand, if those images had been UK images, they would have got away with it, and could only have been sued for peanuts even if they had been caught. If Hargreaves gets his way, if they had been unregistered in the UK, the Daily Mail could have happily paid £1 per image to make it all right under UK law. And then of course been sued for $1,000,000 in the US.

The UK has a feeble copyright protection system already, and Hargreaves wants to emasculate what little remains of it.

The proposals are a serious attack on the UK's digital economy

In order to flourish, digital-based businesses need a secure, safe environment to display, offer, and share digital content. Hargreaves' orphan works proposals would make it near impossible for businesses to show and exchange digital data without making them vulnerable to state-sponsored digital piracy. Of course, the internet would go on working in some form or other, but business will find it so much harder to allow the digital exchange of information vital to the digital economy, and many of us would find it hard or impossible to put data on the internet or share it digitally with clients. Hargreaves "Evidence Driven Policy" seems to have totally failed to understand the basics of the way that the digital economy functions, and the kind of regulatory framework it needs to flourish. Legalised piracy and failure to protect property rights does not promote a stable and flourishing economy, either on the internet, or off it. The same applies whether we're talking about IP, or houses.

The proposals would put the UK in breach of its international obligations

The Berne Convention is clear. Article 9 (1) states:

"Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form."

The Hargreaves Review proposes that the DCE will authorise works on authors' behalf, and without their knowledge.

Article 9 goes on to say that there may be exceptions in certain "special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author." Certain exceptions are listed in Articles 10 and 11. They do not include orphan works. Exceptions can only be "special cases", not generalised - and Hargreaves' proposal is extremely generalised. And no one could reasonably argue that orphan works licensing would not prejudice the legitimate interests of the author - he would be having his work licensed on his behalf for no payment.

Since most foreign works would be unregistered, these would be the works that suffered most from the effective emasculation of their copyright in the UK. Apart from the damage to international relations this would provoke, the Berne Convention requires the UK provide for copyright enforcement without formality. Hargreaves proposes to emasculate the copyright of non-registered works. But Berne says:

"The enjoyment and the exercise of these rights shall not be subject to any formality" - Article 5(2)

Your family snaps could be used by anyone without your permission

Post a private picture on Facebook - it may easily be taken by someone else and 'orphaned'. It will now be free for anyone to use for whatever they want for £1.

The orphan works provisions will kill whatever is left of the creative content market in the UK

Remember?: "We recognise that there will be concerns from some rights holders who fear that a growing resource of almost free to use orphan works could injure markets for other works. This is a good example of a case where wider economic interests outweigh the perceived risks to rights holders." There is no subtlety there. Translation: "We really don't feel like thinking the issues through here (an Understanding Driven Report), let's just screw content creators."

The proposals will reward negligence and criminality

Recipients of content will have a strong incentive to forget about who the copyright holders are. Questionable activities such as metadata stripping are already rife among well known media organisations. The Hargreaves Review has done nothing to strengthen obligations on organisations to keep records of who owns what. If the orphan works recommendations were to be adopted, the incentive to forget the rights owner as quickly as possible would be overwhelming.

Evidence Driven Policy

Hargreaves is keen on "Evidence Driven Policy". However, he freely admits in his report that:

"There is significantly less empirical evidence on the economic effects of design rights and next to no evidence on copyright policy."

His Evidence Driven Report is recommending sweeping and ill-thought through changes, which he admits will cause damage, on the basis of "next to no evidence". Spot the contradiction.

The surprising thing about the Hargreaves report is not so much that it doesn't manage to answer all these issues. They're complex, and there is limited space in the Review. It's that the report doesn't even acknowledge their existence.

A suggestion - how it might be made to work

Here's a suggestion about how Hargreaves' proposals on orphan works might actually be hammered into making some sense:-

If registered images on the DCE carried heavy statutory damages similar to those that registered images carry in the US, that would be a good start.

If, in the case of unregistered images that were licensed out for a nominal fee as orphan works, if the copyright owner subsequently found out about the usage, that they would be still able to claim full 'normal' copyright damages for the use of the work to date without their permission. The £1 fee wouldn't remove the possibility of the licensee having to pay copyright damages or do their best to find the author of the image, it would just protect the user against the risk of paying the higher level of statutory damages in the UK.

Registration on the DCE would need to be free of charge, and it would need to be an automated process. The issue of fraudulent registration by non-owners would need to be addressed. Non-registered images at least would need to have their copyright enforceable through small claims court without needing to engage expensive lawyers.

Certain cultural organisations, like museums and libraries, could have special exemptions allowing them to copy images in their collections for conservation purposes, and perhaps even make certain kinds of exhibitions of them, without risk of being sued at all.

In other words, unregistered copyright works would continue to have almost the same level of copyright protection they currently enjoy. Registered images would have enhanced protection. It works in the US, and could be improved for over here. Then the Hargreaves proposals might make some sense.

There are no doubt issues here and no doubt tweaks needed, but unlike Hargreaves' proposals, there is a hope that something along these lines might just actually work.

Coda

There are some good things elsewhere in the Hargreaves Review, as well as some terrible missed opportunities.

One of the worst of these latter failures is not making any attempt to prevent the wholesale creation of orphan works by enforcing the preservation of metadata, and penalties on clients that conveniently or negligently 'forget' who the owner of copyright works are. Since the review states one of its recommendations is to create "an efficient digital copyright licensing system, where nothing is unusable because the rights owner cannot be found", this omission is just odd, because this would have been one of the cost effective and efficient ways of achieving that. Could it be that the Review bowed to pressure from organisations in the publishing world who don't want to make any effort to keep track of whose property they have?

Whatever positive nuggets might be in there, Hargreaves more than makes up for them with orphan works proposals.

Photographers have long recognised that there is a genuine concern, a reason why these orphan works proposals keep popping up, that needs to be addressed. Photographers' organisations made submissions to Hargreaves suggesting the kernel of an idea that, while it needed developing, might just have had some kind of a hope of actually beginning to address the problems, while avoiding the damage that sweeping orphan works proposals would have. The issues are complex, but not impossible to deal with. My proposal above might work. Hargreaves orphan works proposals couldn't. Perhaps the truth is that his report simply ran out of time and his team didn't have a chance to get their collective heads around the orphan works issues.

Government reviews like this ought to be interested in creating a safe environment in the digital world where it was possible to do business, to entrust your valuable property with the hope of some protection from the law. Hargreaves review seems to be intent on making digital file sharing dangerous to the point of impossibility - where you know that by placing images on Facebook or handing digital files out to clients, you will be conceding that all and sundry may use them for next to nothing without your permission.

The only possibility would be simply not to share your files, or at least only to do so with extreme guarantees of security (no copies passed to third parties without powerful contractual reassurances, aim to shift strict liability to the recipient of the file etc). Or emigrate to somewhere like the US, where copyright has much more adequate protection.

Personally, there are few people that I trust with my digital files, I avoid approaching and supplying clients such as magazines unless I really trust them, simply because I do not trust the UK legislative environment to protect me. I would never allow organisations like, say, the BBC to have copies of my images, because they have a bad reputation for creating orphans, and I simply don't trust them. This is partly a failure of organisations like the BBC, but it is also a failure of our legal system.

And having read the Hargreaves Review, I trust the future even less.