INTELLECTUAL PROPERTY AND THE HARGREAVES REVIEW

[eddo123]

Hi there,

I don't know how many of your are aware of the proposed changes to the copyright laws in the UK, but you should all take a note of this.

The Government wants to give easier usage of creatives works, which could effect any income that you could stand to make from image sales. It is essentially stripping you of your copyrights and orphaning your work.

I know that i feel very strongly about this matter, and have emailed my MP directly to voice my opinions on this and attempt to get him to sign a petition of MP's who would like to see the Intellectual Property review remain unchanged and the copyrights of millions of creatives retained.

http://www.parliament.uk/edm/2012-13/284

This is the link to see view the MP's that have already signed supporting the creative industry. If your local MP's name is not on the list do something about it!! if it is already then brilliant.

What I am saying is that we, as a creative community should stand up to what the government wants to do. Both professionals and amateurs alike. The creative industry provides a great number of people employment and changing the way it works with free licensing would effectively bottom out the market.

Get onto your MP's and have them sign up to stop the change. We need to act now before we loose an important strain of the photographic industry.

Thanks in advance.

 

[Southdowns]

Hmm. The early day motion is pretty meaningless, to the extent that no matter what my view of the review is, I couldn't care less whether or not my MP signs it. It basically says "government, please take care not to inadvertently hurt anyone", which is obviously a sentiment everybody can support even if they have completely opposing views on what should actually be done.

I must admit, I'm struggling to see anything wrong with the recommendations of the Hargreaves Review. All it really suggests is a modernisation of copyright law to make the whole marketplace easier for all parties to operate in. It does NOT amount to "essentially stripping you of your copyrights and orphaning your work"; it just makes it easier for people to use and identify work that has been genuinely orphaned (i.e. abandoned by the rights owner).

Yes it places an obligation on the rights owner to, in effect, assert their rights, but I'd think that's what any decent business should be doing anyway, and if you do that by participating in a marketplace where it's easier to make money out of your copyright, then why wouldn't you, if you even care who uses your stuff?

Of course there could be problems in the detail of any implementation, and it must be done carefully, but a review of, and changes to, copyright law is long overdue and just as likely to benefit rights holders as hurt them.

So, given that you can't possibly be objecting to having the status quo reviewed (can you?), what is it that you do object to? What specifically is it that you want people to do something about? And how is stating the bleedin' obvious - that we'd not like anyone to be disadvantaged - going to help if indeed there is an issue?

What, specifically, does the government want to do that we as a community should stand up to?

 

[donut]

Of course there could be problems in the detail of any implementation, and it must be done carefully, but a review of, and changes to, copyright law is long overdue and just as likely to benefit rights holders as hurt them.
QUOTE]

why ?

 

[Southdowns]

Because the current position is completely out of kilter with what most consumers of copyrighted material (and no, I don't mean those who think everything should be free), regard as fair and reasonable. You only have to look at the music industry to see that, where it needed the leading retailer to relax the protection (by removing DRM), to bring about a change of attitude whereby most decent people thought they were being treated fairly, and so became more willing to pay.

That's not to say protection for rights holders should be relaxed, but the system does need to be reviewed to see if it can be made fair, and be perceived to be fair, to everyone. It also needs to be enforceable, which it most definitely isn't now.

One example: If I had a photo "stolen", what can I do about it? At the moment the remedies for copyright infringement are unclear, expensive, and unpredictable, all things which the Hargreaves review sets out to tackle.

Anyway, I'm not saying that there is no threat to rights holders here, I'm just asking what it is? What is it we're meant to be objecting to? So far all I've seen from objectors is emotive stuff like "It is essentially stripping you of your copyrights and orphaning your work.", without any evidence that that's so. If the OP is going to call for support, isn't it reasonable to ask him for some tangible evidence that what he's objecting to is fact and not scaremongering?

It's not rocket science; if you're going to say that "It is essentially stripping you of your copyrights and orphaning your work.", it's reasonable to ask you to tell me how you came to that conclusion. What is the proposed mechanism for that?

 

[HoppyUK]

Very good replies from Mark

But I do think there is a certain inevitability that some photographers will lose out on all this and there will be some legalising of practises that are currently illegal (and unenforcable). The question is whether it will be for the greater good, and I hope it will, but I don't expect that view to be shared by everybody.

I have always thought that the changes introduced in the current Copyright Act of 1988 were a bit daft, so that's one thing. But now the internet has turned the whole thing on it's head anyway and resistance to change is pretty futile.

It seems to me that the position for professional photographers is to simply get paid for the job of taking pictures. Once they are taken, you might as well kiss any future income goodbye. This seems entirely reasonable, in the same way that if I ask a plumber to fix the loo, there is no extra charge for how many times I might want to use it, or anyone else, or whether it involves a number one or number two usage.

There is no money in stock photography now. If you want to enjoy the marketing benefits of displaying your work on the web, then don't be surprised if gets lifted. Some people say it's stealing, but the 'thieves' don't see it like that (after all, what have you actually lost when somebody takes a copy?). But if you don't like it, don't put your work on the web. A cake-eating proverb springs to mind.

 

[srichards]

The no further use income is like arguing that once a writer writes a book then no one but the first purchaser should pay for a copy! If you use someone's work you should pay for it. Just because it was essentially recycled doesn't mean it should be free. The charges should be less than for a straight bespoke commission but there still should be a cost associated with using the work again.

Creative works are nothing like plumbers and whoever in a physical medium. The model has to be a publishing model more like music and writers. Musicians receive royalties for every single play of their work by commercial users. It should be no different for photographers and their work.

 

[HoppyUK]

The no further use income is like arguing that once a writer writes a book then no one but the first purchaser should pay for a copy! If you use someone's work you should pay for it. Just because it was essentially recycled doesn't mean it should be free. The charges should be less than for a straight bespoke commission but there still should be a cost associated with using the work again.

Creative works are nothing like plumbers and whoever in a physical medium. The model has to be a publishing model more like music and writers. Musicians receive royalties for every single play of their work by commercial users. It should be no different for photographers and their work.

Analogies are difficult, but the book example is interesting. You could say that it's more like not allowing anyone else to read your copy, and they've got to buy a new one. Or nobody else can read your newspaper or listen to the music CD you've bought.

At the end of the day it boils down to a compromise between what photographers want and what the end user believes is a fair and reasonable deal. They have the ultimate say, and photographers must evolve a business model that works within that. The alternative is chaos, ie currently, and photographers will end up having their copyright material used anyway, whether they like it or not.

 

[big soft moose]

I must admit, I'm struggling to see anything wrong with the recommendations of the Hargreaves Review. All it really suggests is a modernisation of copyright law to make the whole marketplace easier for all parties to operate in. It does NOT amount to "essentially stripping you of your copyrights and orphaning your work"; it just makes it easier for people to use and identify work that has been genuinely orphaned (i.e. abandoned by the rights owner).

I think a lot of the people who are objecting havent actually read the actual recomendations, but are objecting on the strength of editorial hyperbole in places like AP.

how hard is it to assert your copyright anyway ? (usually through water marking and embedding in the exif) - plus anything thats put on the web is likely to be low res and useless for anything other than web disaplay anyway

 

[Southdowns]

The no further use income is like arguing that once a writer writes a book then no one but the first purchaser should pay for a copy!

No it isn't. It's like arguing that once I've bought the book (i.e. paid the author for his work), I should be allowed to read it in paper or on my Kindle. The only further charge should be for making the transfer, not a second payment to the author. Each user only pays once, not each market.

A good example is music. Why should the artist be paid each time technology moves on and I need to transfer songs I've paid for onto new media, or each time I want to put the song on a different device so I can play it in different places? That is currently illegal, but not many people outside the record industry think it's fair.

Yes of course it'd be wrong for me to put the music on a CD then give that to someone else instead of him buying one, but once I've bought a song I should be allowed to use it however I want for myself. THAT is what "further use" is about, not what you described.

 

[realspeed]

One huge problem with UK photo copywrite is it doesn't apply worldwide even if it was introduce in law. Nothing to stop anyone in the world "lifting " a photo off the internet. So really a pointless exercise.

Realspeed

 

[Southdowns]

Which is why part of the review focuses on international issues. Yet, apparently, we're meant to object to it because, umm, well actually i dont know why; no one who's read it has offered a reason.

 

[HoppyUK]

Which is why part of the review focuses on international issues. Yet, apparently, we're meant to object to it because, umm, well actually i dont know why; no one who's read it has offered a reason.

Because it threatens the status quo that gives force of law to aspects of copyright that many photographers are reluctant to relinquish, even though they are widely ignored, abused and unenforceable.

It's hard to imagine that photographers will end up better off at the end of it all, but it should at least be a more realistic reflection of how things now are in the new media world, and what users of imagery (as opposed to makers of it) believe to be the right way forward.

 

[srichards]

How do other artists licence work to be reproduced? Do designers licence work invididually to go seperately onto mugs or posters or mouse mats or do they expect a company to buy that right and make as many things as they can with it for one fee? Following a similar model seems sensible as designers work can be reproduced via many different technlogies.

 

[Musicman]

Which is why part of the review focuses on international issues. Yet, apparently, we're meant to object to it because, umm, well actually i dont know why; no one who's read it has offered a reason.

Let me give you some reasons:

The Berne Convention, which is an international treaty the basis of our copyright law, firmly places control of copyright with the author of a work, specifically, in Article 9

(1) 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.

and also Article 6

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

The 'orphan works' provisions of the Hargreaves Review, which are proving the most contentious, essentially transfer these authors' rights en masse to the proposed Collecting Societies, without the prior consent of authors; a scheme known as Extended Collective Licensing [ECL].

Hargreaves and the government are pointedly ignoring legal advice that, should the proposals become law in the UK, they would be in breach of their treaty obligations under the Berne Convention. Similarly it would run contrary to our other treaty obligations to conform to EU Directives, such as the Copyright Directive of 2001.

Moreover, the language of the Hargreaves report clearly indicates that works that would be considered 'orphans' would be those not explicitly opted out of Extended Collective Licensing.

a work should only be treated as an orphan if it cannot be
found by search of the databases involved in the proposed Digital Copyright Exchange.

A scheme should involve a diligent search of rights registries (to ensure the supposed orphans are not in fact owned and opted out of the collective licensing scheme).

That is the limit of the definition of 'diligent search', which has been touted as a defence of the orphan works scheme; i.e. merely that it has not been opted out. I imagine many of us would have expected a higher standard of search for the original author of a work before it is considered an 'orphan'.

Furthermore, any fees collected for these works deemed 'orphans' would be nominal.

The system should also not impose inappropriate costs, particularly on use of materials
which were not created for commercial purposes, or which might be found to be out of copyright if the
rights information were available. Therefore, in most cases the fee for use of orphan works would be
nominal, recognising that the works involved represent a national treasure trove.

This runs contrary to most current licensing practice, whereby fees are calculated on the basis of the use of the work, not the intention of the author upon its creation (indeed, the Collecting Societies will have to guess the authors' intentions on that point).

Remember, under Hargreaves' vision outlined above, orphan works are only those not opted out from ECL by their authors. You will have to register your photographs individually so that they are not included in the scheme if you object to it - a huge administrative burden.

You may have a view about the value of your work, but the Collecting Society may consider it of no commercial value, and sell it for a nominal value, even though it then may used by the licensee in a commercial context. Indeed commercial use is the point of the exercise...

Hargreaves acknowledges the risk that a supply of material at 'nominal' cost via ECL may undercut authors producing new works

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.

(N.B. 'almost free')

but then just suggests we have to grin and bear it in order to promote growth elsewhere (at the BBC, Google and other media-consuming companies)

This is a good example of a case where wider economic interest outweighs the perceived risk to rights holders.

This is just examining the economic context, but of equal importance, and often suffering in its glare, is that Hargreaves' ECL proposals also essentially strip authors of their moral rights under the Berne Convention, delegating them to Collecting Societies whose avowed ultimate purpose is to serve the 'wider economic interest'.

I have some further remarks to make, but it's late and I'm going to wrap up this post there.

 

[kestral]

One example: If I had a photo "stolen", what can I do about it? At the moment the remedies for copyright infringement are unclear, expensive, and unpredictable, all things which the Hargreaves review sets out to tackle.

How do you come to such a conclusion!

1.If some steels my photo I sue in the County Court.
2.The remedies very clear as stated in point No 1.It is not expensive to take out a County Court summons all one has to do is a money claim online.
3.It is not unpredictable in fact completely the opposite VERY predictable the copyright belongs to the owner and the burden of proof lies on the thief to prove he had permission.If the Hargreaves review is accepted what you have said in your quote above will THEN apply it does not at present, all the control lays with the copyright owner because anyone wishing to use the material must obtain permission.It will be a disaster if the burden of proof is placed on the copyright holder.

The changes that are recommended amount to one thing only.The removal of the burden of proof laying with the thief having to prove he had permission and it being transferred to the copyright owner to prove he didn't.

You might be better off putting such posts on a music website

 

[boyfalldown]

How do you come to such a conclusion!

1.If some steels my photo I sue in the County Court.
2.The remedies very clear as stated in point No 1.It is not expensive to take out a County Court summons all one has to do is a money claim online.
3.It is not unpredictable in fact completely the opposite VERY predictable the copyright belongs to the owner and the burden of proof lies on the thief to prove he had permission.If the Hargreaves review is accepted what you have said in your quote above will THEN apply it does not at present, all the control lays with the copyright owner because anyone wishing to use the material must obtain permission.It will be a disaster if the burden of proof is placed on the copyright holder.

The changes that are recommended amount to one thing only.The removal of the burden of proof laying with the thief having to prove he had permission and it being transferred to the copyright owner to prove he didn't.

You might be better off putting such posts on a music website

Point 1 & 2 are unpredictable though. There is no small claims system (such as moneyclaim) for IP issues. All your route is really predictable for is when theres an undisputed amount of money owning. The county court route cannot assign damages to you. The results of you going to court for an invoice amount you have just based on something a bit random are going to be unpredictable.

 

[big soft moose]

How do you come to such a conclusion!

1.If some steels my photo I sue in the County Court.
2.The remedies very clear as stated in point No 1.It is not expensive to take out a County Court summons all one has to do is a money claim online.
3.It is not unpredictable in fact completely the opposite VERY predictable the copyright belongs to the owner and the burden of proof lies on the thief to prove he had permission.If the Hargreaves review is accepted what you have said in your quote above will THEN apply it does not at present, all the control lays with the copyright owner because anyone wishing to use the material must obtain permission.It will be a disaster if the burden of proof is placed on the copyright holder.

The changes that are recommended amount to one thing only.The removal of the burden of proof laying with the thief having to prove he had permission and it being transferred to the copyright owner to prove he didn't.

You might be better off putting such posts on a music website

1) if someone steals your photo who lives outside the Uk what do you do ?

2) in a civil case the burden of proof lies on both sides equally (you can't make this a criminal theft case because copyright infringement isnt theft per se)

3) you have to prove you were the original owner, and if you havent got the original raws that won't be easy

4) even if you do win, theres no telling what the award will be - and chances are good that it won't be the full useage fee you were expecting (and thats assuming the 'theif' pays up at all)

the fact that you think its easy suggests to me that you've never actually done it.

 

[boyfalldown]

4) even if you do win, theres no telling what the award will be - and chances are good that it won't be the full useage fee you were expecting (and thats assuming the 'theif' pays up at all)

further to what Pete says, a moneyclaim online (which implies small claims track) can't award you damages so you'll have to go through a different route, which then puts you at risk of costs

 

[Alanem]

Analogies are difficult, but the book example is interesting. You could say that it's more like not allowing anyone else to read your copy, and they've got to buy a new one. Or nobody else can read your newspaper or listen to the music CD you've bought.

Bought any Kindle books lately? They say exactly that, you are not allowed to pass on your copy to anyone else and they also ask that if you have received the book from someone else then please delete it and go buy a copy.

Alan

 

[HoppyUK]

Analogies are difficult, but the book example is interesting. You could say that it's more like not allowing anyone else to read your copy, and they've got to buy a new one. Or nobody else can read your newspaper or listen to the music CD you've bought.

Bought any Kindle books lately? They say exactly that, you are not allowed to pass on your copy to anyone else and they also ask that if you have received the book from someone else then please delete it and go buy a copy.

Alan

It's not the same thing Alan. Kindle is saying you can't make copies, not that you can't pass your Kindle to someone else to look at, though I agree there are similarities. And to say again, comparisons and analogies are difficult.

TBH I don't have too many answers, and though I don't agree with some aspects of current copyright law, one thing we can all agree on is that it's in a pickle.

Pre-digital, whatever the rights and wrongs of it all, at least it worked because, effectively, the intellectual rights and the actual physical material were locked together.

You could photocopy a book, or copy a photograph, but it was an expensive PITA and the quality was never very good. Just easier and better to buy a new copy off the original author. That's what forced rights holders and media consumers to get along and money changed hands.

Not any more. Once a work is digitised, it is extremely difficult to control what happens to it. It doesn't matter what the law says or how much hot air rights holders huff and puff about it, if people can make a perfect copy at the press of a button, they will. Further complicated by the general perception that this is not theft at all (becuase the author has done nothing, and lost nothing).

 

[onomatopoeia]

Further complicated by the general perception that this is not theft at all (becuase the author has done nothing, and lost nothing).

And because the general perception is correct, as a quick read of the relevant statutes will confirm.

Rights holders of all sorts do themselves no favours with the use of the words "theft" and "stealing" when applied to copyright violation.

 

[srichards]

How else do you describe it though. It's not really borrowing. Taking without consent? That's how they define car theft amongst family members. There isn't the intention to permanently deprive but you can't permanently deprive someone of something that is digital if you've taken a copy of it.

'Copyright violation' has too many syllables which is why people probably use theft