The IPO hits back

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.


7 Comments so far. Leave a comment below.
  1. john walker,


    Have the IPO denied that: right holders who do not wish to be collectively managed will have to somehow register, possibly work by work, as ‘not for collective management?

    Have to say that the proposed scheme also looks intrinsically unworkable… half-baked even.

    • Well as long as you’re traceable you don’t have to be collectively managed. The problem is if you’re not traceable – even after a “diligent” search – then your work can be licenced by someone else on terms they set and all you can then do is claim your money. As if money were the only thing anyone ever wants in return for a licence, and as if anyone would licence anything for a “fair” price.

  2. john walker,

    Thanks… by “traceable” do they mean “formally” registered somehow?

    BTW As I am sure you know, there is already plenty of cases of ‘diligent’ searches that literally can not find authors as eminent as John Berger.

    The idea that the UKs proposals – a covert but at the same time blatant trashing of the Berne , will will not cause international a ructions is a joke, no?

    • Well, no, they don’t mean that. But obviously registering work will make it easier to trace, so there’s the danger than this introduces a de facto requirement for registration depending on how it is set up in practice. I am well familiar with the issue of searching from both sides. On the one hand, I know how with a little bit of expert work you can find a surprising amount of information quite quickly. I also know how quickly things can be lost – both my parents were authors and even though I think I am easy to track down (as the current guardian of their copyright) it’s surprising how some people seem to have struggled.

      It’s a tricky problem but this is the wrong answer. And I agree about Berne, I think and hope this will somehow fall over because of it. Sadly the understanding of the principles, rationale and public good underlying copyright seem largely lost on the current generation of politicians.

  3. john walker,


    Copyright and the Digital Economy (DP 79) Australian Law Reform Commission report just released. It will be up to the next government as to what, if anything, is done about its recommendations. However It is interesting reading.

    Click to access dp79_whole_pdf_.pdf

    This is from the report on:
    6. Statutory Licences [compulsory]


    6.1 Statutory licences allow for certain uses of copyright material, without the permission of the rights holder, subject to the payment of reasonable remuneration. They are a type of compulsory licence; where the licence applies, rights holders cannot choose not to license their material.

    6.2 This chapter proposes the repeal of the statutory licences for educational and other institutions in pts VA and VB of the Copyright Act, and the statutory licence for the Crown in pt VII div 2 of the Copyright Act.[1]

    6.3 The digital environment appears to call for a new way for these licences to be negotiated and settled. Like most other licences for use of copyright material in Australia and abroad, these licences should be negotiated voluntarily. Voluntary licences—whether direct or collective—are less prescriptive, more efficient and better suited to a digital age.

    6.4 This reform should help Australian educational institutions and governments take better advantage of digital technologies and services. New licensing models may also facilitate more efficient remuneration of rights holders.

  4. john walker,

    Should add that the paper also recommends for US style “fair use” provisions for public collections /libraries /related archives and possibly a limited ECL system for public collections and the like.

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