The changes, made by the Enterprise and Regulatory Reform Act, allow for:
- licensing of ‘orphan works’ (works for which a rightsholder cannot be found); and
- ‘extended collective licensing’: a authorisation process to enable a rights management organisation (copyright collecting society) to offer licences that cover works of non-members.
These two amendments to UK copyright legislation were originally part of the Digital Economy Bill, but dropped at the last minute when the rest of the bill was passed in 2010. The changes were particularly opposed by a group of photographers known as Stop43 (named for offending provision of the bill, Clause 43).
In 2011, licensing of orphan works and extended collective licensing were recommended by Professor Ian Hargreaves in his report commissioned by the UK Government, Digital Opportunity: A review of Intellectual Property and Growth. The government broadly accepted all of the 10 recommendations in the Hargreaves report, and began an implementation program, which included the amendments in the Enterprise and Regulatory Reform Act.
Stop43 has lobbied strongly against the amendments. Its members’ objections are largely centred on commercial uses of orphan works, which they fear will interfere with photographers’ licensing of their works. Stop43 says it:
… would not object to Collective Licensing schemes which occasionally and inadvertently result in orphan works being licensed commercially:
- when such licensing is very clearly the exception rather than the rule;
- when most authors whose works are covered by that collecting society are in a position to know of its existence and function, and be members;
- when the practical effect of the scheme is clearly and obviously to the benefit of authors; and
- when the rights being licensed are secondary rights which clearly and obviously cannot practicably be negotiated as primary licences in the normal way.
It specifically refers to the Design and Artists Copyright Society Payback scheme, and the Kopinor extended collective licensing scheme as unobjectionable.
It also says that it does not object to certain ‘cultural uses’, including online display of items in the collection of a cultural institution such as a library or a museum, provided this is limited to viewing of the items.
Stop43 is also seeking other safeguards for photographers and other creators, including stronger ‘moral rights’, affordable small claims processes for infringement, and effective penalties for infringement.
Stripping of metadata
The photographers’ concerns are exacerbated by processes for uploading images to the internet that strip metadata that identifies the rightsholder and/or sets conditions of use. There are prohibitions against the stripping of metadata in the Australian copyright legislation, and in other countries’ copyright laws, but people uploading images can be unaware both of their legal obligations and that the process they are using is stripping the metadata.
Implications for Australia
As part of its inquiry into copyright and the digital economy, the Australian Law Reform Commission is looking at orphan works and extended collective licensing. Most of the concerns raised by UK photographers could be addressed through safeguards in any legislation introduced, and through an awareness campaign, including through photographers’ professional organisations such as Australian Institute of Professional Photography, specialist trade media, social media and mainstream media.
- The Enterprise and Regulatory Reform Act 2013: Your Photos and You (UK Intellectual Property Office, May 2013)
- Copyright law: Five ways to protect authorship (Journalis.co.uk, 1 May 2013)
- The copyright orphanage (Mark Goodge, 29 April 2013)