Monday, February 9, 2009

UK New Rules

Clock ticking on copyright

The government's call for views on the future of copyright has been given a cautious welcome. But, Olivier Laurent reports, it's imperative you have your say

UK photographers could see the first major revamp of copyright law since 1988 after the Intellectual Property Office launched a consultation on the future shape of copyright late last month, including new focus on orphan works.

On 16 December 2008, the IPO, under the remit of David Lammy, minister for higher education and intellectual property, released an 'Issues Paper' to help kick-start the debate about what needs to be done to ensure that 'the country's copyright system properly supports creativity, promotes investment and jobs, while inspiring the confidence of businesses and of users'.

While the consultation encompasses all sectors of the creative industry - with a particular emphasis on the music business - photographers have been urged by representing associations to make their voices heard in a bid to shape any changes that could come as a result of the consultation period.

Already, the Association of Photographers, the British Association of Picture Libraries and Agencies and the National Union of Journalists have announced that they will participate in the consultation.

Gwen Thomas, AOP's company secretary, says: 'We're looking at what difference it is going to make, but it's nice to see that the minister of higher education is interested in the issue.'

'The existing copyright legislation is based on an act that is 20 years old,' says Paul Broan, chairman of BAPLA. 'New methods for delivering stills to the public and for commercial use have developed so fast that legislation has simply not been able to keep up. It is encouraging to see a pro-active response to early European discussions, so that the UK can lead this initiative and shape European policy in a way that is relevant to UK rights-holders.'

The NUJ is also discussing its response, with a sub-committee of photographers meeting this week to discuss the issue.

The consultation period runs until February, after which the IPO will release a discussion paper - or Green Paper - that will become the basis of an official government consultation period. 'Based on that second phase of consultation, we will publish our recommendation in late spring,' an IPO spokesman tells BJP. 'This piece of work looks to ascertain where the UK is and where we should be in terms of copyright internationally,' he adds.

The IPO has asked a series of questions to the creative industry regarding the state of copyright in a digitalised world, with an emphasis on orphan works.

Freelance photographer Pete Jenkins, who will help formulate the NUJ's response, says that one problem is that 'members of the public, as well as organisations, are downloading images and publishing them without compensation through ignorance of the law.

'The absolute right to be recognised as the creator of a published work and the easy and affordable enforcement of that right will start to stop such practices and begin to ensure that creators are always paid for uses of published works,' he adds. 'There does need to be an easy to use and to enforce way for lone traders to obtain not only the payment of licenses fees but also an element of payment of damages to make unlawful use less attractive to would-be pirates.'

Legal enforcement of copyright infringement has proven to be a huge issue, especially for freelance photographers and small businesses. 'Even when piracy is traced and a conviction in the civil courts obtained, there is little chance of any recompense for the misuse, and indeed it is often difficult to obtain even the appropriate fee that could have been negotiated legally,' says Jenkins.

The numbers of copyright infringements cases could increase exponentially in the years to come if the US passes an orphan works bill that would make it easier for publishers to use works of art for which the author or copyright owner cannot easily be traced.

Photographers also fear that the IPO's consultation could form the basis of a European-wide orphan work bill that would threaten their rights. Already, the UK Gowers Review, unveiled in 2007, recommenced adopting a similar policy to the US, namely that works can be used if the copyright owner cannot be found after a 'reasonable search'.

BJP will continue to monitor the situation, publishing its own answer to the paper before the end of February. For more details, visit

In essence

The Intellectual Property Office's Issues Paper calls on the creative industry to debate four areas:

1. Access to work. Is the current system too complex, in particular in relation to the licensing of rights, rights clearance and copyright exceptions?

2. Incentivising investment and creativity. Does the current copyright system provide the right incentives to sustain investment and support creativity?

3. Recognising creative input. Does the current system provide the right balance between commercial certainty and the rights of creators?

4. Authenticating work. What action, if any, is needed to address issues related to authentication?

The Issues Paper is available on Intellectual Property Office's website at


  1. Don't get me started !!! The Orphan Works legislation will be adopted over here, consultation or not. I hold no realistic hope that this crappy and immoral paper will be mothballed (you'll gather my opinion is pretty heated on this point!)

    Our legislators like the US Orphan Works legislation. Oh yes, they like it a lot.

  2. It makes you wonder who has the time to sit around and think up ways to remove such rights. It is like it is self feeding, the more time the more laws that remove or restrict rights.