The Department for Big Business Exploiting Other People's Innovation

The inappropriately named Department for Business, Innovation and Skills are at it again, trying to introduce exceptions to copyright law that would allow certain fat cat organisations to commercially exploit copyrighted material ? such as your and my pictures ? without asking our permission or paying us a fee. In other words, orphan works legislation is back, with the added disaster of what they call ?Extended Collective Licensing?.

The government proposals have decided to turn a deaf ear to common sense objections . It is hard to believe that the Department for BIS haven?t yet grasped the basic issues, as they have had the issues explained to them so many times. This time they have decided to attack an excellent and informative article that appeared in The Register recently, which obviously must have struck a raw nerve.

Rather than my trying to explain the problems behind the proposed legislation, I would suggest having 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. Fortunately the last time this issue came before Parliament, MP?s demonstrated some common sense and threw the proposals out at the 11th hour. The latest proposals however are even worse than the earlier ones, suggesting that the D for BIS has learnt nothing whatsoever from history.

Anyway, I posted a reply to the D for BIS?s blog post. I doubt that they will allow my comment through their moderation, as they are not exactly known for allowing points of view to appear that don?t fit their own blinkered agenda, but fingers crossed. In case it doesn?t appear there, I?m reproducing it here. You have to read it?in the context of their blog post that I am responding to, and the bits in quotations marks are excerpts from their post:-

Unfortunately your blog post is already propagating a number of misconceptions, and demonstrates either a lack of understanding of the issues, or a wilful decision to ignore them. The continued attempt to put forward of these arguments simply discredits the Department for Business Innovation and Skills.

?writers and publishers cannot use certain unique photographs to illustrate books on major world events?

- as current UK law on copyright is drafted, the legal sanctions for breaching copyright are feeble, and any publisher using a copyright work without permission is unlikely (especially where he can demonstrate that he tried to find the author and failed) to have to face a penalty greater than the fee that he would have had to pay if he had sought a license in the first place. The only case where he is likely to pay a penalty is if the court decides that he behaved cynically ? or ?flagrantly? ? in any way.

There is therefore simply no need for the orphan works legislation, certainly for the more commercial publishing uses ? UK copyright legislation is already emasculated, unlike US law where there are potentially heavy statutory penalties for using copyright works.

?proposing the creation of a licensing organisation to allow use of orphan works for commercial and non-commercial purposes?

Orphan works enabling legislation are totally unnecessary in a commercial context. While there are arguments in favour of purely cultural use, there is no need or reason to extend it to commercial use, and no one that I am aware of has yet published any credible argument for doing so. Unfortunately the Department seems to be determined to support certain commercial organisations that wish to ?promote business models exploiting other people?s property with no coherent justification for doing so.

?the proposals contain a number of key safeguards to protect the rights of the copyright owner, including the need for an extensive search for the rights holder?

The requirement for an ?extensive search? provides, as the Department HAS to be well aware by now, in effect no protection whatsoever, for many reasons that have been pointed out to the Department on many occasions. There can be no objective standards as to what an ?extensive? search means. There is no comprehensive database of copyrighted material, and such a search is simply impossible. If that is the key protection that the Department is quoting, then it means that the Department envisages that in effect there will be no protection for copyright holders at all.

?rights holders can contact the authorising body to regain control of their work and to claim the remuneration set aside for them?

As the Department must by now be well aware, but is choosing to avoid mentioning for whatever reason, there is absolutely no way of determining objectively what the market value of such a fee might be. The market value for a given use of a typical copyright photograph may vary between ?1 or tens of thousands of pounds for a given use, depending on a host of factors which cannot be objectively determined, including the rarity of the work, how desperate the buyer is to license the work, whether the copyright owner is willing to license it, and so on and so forth. In any case, the likelihood of the copyright owner finding out about the use and the orphan fee would normally be remote.

The likelihood that the fee determined by a licensing body, coupled with the unlikely chance of the copyright holder finding out about it, would be adequate compensation for the copyright holder, would be remote.

Market prices would inevitably be distorted by the prices offered by the licensing body. Commercial publishers would inevitably come to see orphan works as a cheap and ready source of material, and the orphan works legislation a way of avoiding their potential liability to pay a full market fee (which is what current legislation provides for). The orphan works proposal is in effect a mechanism a way of allowing commercial publishers to avoid the risk of having to pay a proper market value for use of copyrighted works.

The article in The Register unfortunately seems to be the most accurate description of orphan works that we have to date, and the partisan wording of this first of the blog articles by the Department for Business Innovation and Skills unfortunately demonstrates what one might most charitably try to interpret as a fundamental lack of understanding of what they are attempting to do.

Source: http://simoncroftsphoto.com/blog/?p=1655

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