AND SO BEHOLD, ladies and gentlemen, the hastily cobbled together rebuttal that the Intellectual Property Office has put forward to defend their orphan works legislation which became law last week. Andrew Orlowski has his own useful explainer here
Since it is cobbled together and defensive, the IPO document is not very detailed and focuses mainly on photos (the source of the loudest criticism). It seems to be trying to debunk some of the criticisms which have been made of the new provisions on “orphan” works.
One thing it doesn’t do is admit to anything. Fundamentally it seems to be trying to say that all the negative accusations which have been made are wrong, and there’s nothing to be worried about because we’re only doing the same thing as the Canadians.
It doesn’t have the nerve to admit that the drafters of this legislation believe that there is a greater good to be served, and the price paid by the losers is outweighed by the benefits to whoever they think might be the winners. It’s not a document which suggests that the writers have the courage of their convictions; there seems to be a reluctance to even acknowledge the existence of potential losers from this.
The actual “myths” it addresses are curious. Some are things I haven’t seen mentioned. That’s not to suggest that they’re not real, but from my perspective anyway they’re not particularly high profile. For example it is very specific in rebutting a slightly obscure “myth” about sub licensing:
Myth: a company can take my work and then sub license it without my knowledge, approval or any payment
Fact: The licences to use an orphan work will not allow sub licensing.
Thanks for telling us, I’m sure whoever it was who was specifically worried about sub-licensing will be reassured.
Issues which have been mentioned more prominently and seem rather more substantial are left unmentioned.
Take the above example, and change it a tiny bit: “a company can take my work and then use it without my knowledge or approval”. The answer would surely have to be “Yes they could”. It might be a frequently asked question but you can’t call it a myth. Best to leave that one out then.
Myth: I will have to register my photos to claim copyright
Fact : Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection
Up to a point, Lord Copper, but unregistered works (not just photos) will be harder to trace provenance for and so are more likely to be “orphaned”. So they will have copyright protection, in the sense that permission will be required to use them, but the permission won’t have to come from you. The works will have protection, but the creator won’t. Best gloss over that one too.
Some of the “myths” are answered with the aid of a crystal ball (emphasis added):
Myth: the Act is the Instagram Act
Fact: Given the steps that must be taken before an orphan work can be copied,such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans
This is a very dodgy basis for policy making. Dismissing the possibility of negative outcomes by predicting that people will do something else instead is hardly reassuring. In my limited experience of the legislative process, measures intended to do one thing based on assumptions about human behaviour are the most likely to produce perverse outcomes (don’t get me started on the DMCA and e-commerce directive – although I have ranted about them on other occasions). Unintended consequences are almost inevitable when you’re not sure, or are unable to say, what consequences you were intending in the first place.
And I have no idea how there can be any basis for claiming that the rates paid will “not undercut” non-orphans. For that to be true there would have to be some sort of “going rate” but there isn’t. In my dealings with photographs I have dealt with a range of prices from zero to over £100,000 for a photo depending on the subject and the relevance it has at the moment of sale. A market price, you might say, agreed between willing buyers and sellers, using the “negotiation” method.
There is no objective way of evaluating worth because photography, like all creative output, isn’t a commodity despite the best efforts of some to make it so.
And on, and on. Debunking all the “myths” individually seems a bit unnecessary.
I have to admit I’m struggling a bit here.
If there has been an honest and open process – and since the law got passed we can safely assume there must have been – by which politicians have decided this, why be so coy?
If the decision was to remove some rights, in some circumstances, from creators because they judge there to be a greater good served by doing so, what’s the problem with just saying so, and telling is what that greater good might be? Sure, people like me might shout and loudly disagree but that’s in the nature of the democratic process.
Perhaps there’s some other reason why they’re being so shy.