Category IPO

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.

D-ERR. UK copyright owners no longer control the right to copy their work

The UK abolished copyright today. At least, they abolished a large part of the “framework” which supports it by doing away with the requirement, in many cases, to have permission from the owner before you use someone’s work. Now, if you don’t know who the owner is, you don’t have to ask them.*

The UK government, or more particularly people within the Intellectual Property Office, don’t see copyright as a “right”. They see it as “a framework“. Nothing fundamental, just a bit of meccano to be fiddled with and re-configured at will.

So they have decided to remove the foundations the framework stands on,  passing a piece of legislation, the Enterprise and Regulatory Reform Act (ERR), which includes a provision to allow politicians to give away your work at a whim. If your work is “orphan” (in other words if it’s not easy to track you down without any clues other than your actual work – and if you have ever tried this with a random photo you’ll know how hard it is) then other people can use it on terms and at prices set by a quango.

If these were “rights” they were messing about with, it would feel wrong. but since they’re only tinkering with a “framework” it’s OK.

“The powers do not remove copyright for photographs or any other works subject to copyright”, says a spokeswoman for the Department of Business, Innovation and Skills in a rather feeble attempt to make it sound innocuous.

She omits to point out that the powers do remove the right of the copyright owner to decide whether or not they want to licence their work, negotiate the terms on which they want to licence it, the price, the credit and the moral rights. In other words most of the “acts restricted by copyright”, the ones which are the “exclusive right” of the copyright owner (in the words of the Copyright Act), are now no longer in the hands of the copyright owner, but someone else.

Maybe the new powers don’t technically remove copyright from the work, but they certainly remove it from the copyright owner.

“Nor do they allow anyone to use a copyright work without permission and free of charge”, she continues. But someone other than the owner, who has no ideal who the owner is or whether they have any views on the matter, will giving permission and setting the price. Copyright – the “exclusive right” to decide who copies and on what terms – has been abolished for the owner of the work.

The right to say no is an important one. The right to set prices, to price yourself out of the market, or to be the cheapest, or simply not be in the market in the first place all matter.

The fact that someone wants to use your work doesn’t mean you have to let them – and it used to be your exclusive right to decide. If you have a desire to keep work private and restricted, or only licenced on carefully controlled terms, you can and many do. Now if you try that you might just be decreasing the chances of a “diligent search” tracking you down and so decreasing your chances of escaping this odious scheme. If your work is hard to find it becomes subject to compulsory licensing with no appeal and no compensation beyond whatever price a stranger decides to put on your work.

Just as bad as the legislation is the process by which it came about. There is no credible evidence or research which makes a compelling case for it producing any benefits at all. Opposition has been ignored, debate kept to a minimum.

It has been done in the form of “enabling legislation”, stuck into an entirely irrelevant Act, which transfers the making of specific rules from Parliament to a minister. This is frequently justified as allowing quick action to be taken in a fast-moving world. In this case it looks a lot more like a way to avoid discussion and give minsters a huge honeypot of free goodies to dish out to those upon whom they wish to bestow great gifts (in this case the beneficiaries – and the wealth we are passing to them – almost all reside in Silicon Valley).

Law-making based on whims and completely imagined, speculative benefits is best avoided, all the more so when the whimsical Utopia you hope to create comes at the price of an established and valuable contributor – professional creativity and the media – to the economy and culture.

Stupider still when the alternative future, in which creators benefit from increased competitiveness and a growing market for their work, has not had a chance to emerge thanks to piracy and some already demonstrably ill-conceived legislation which had already weakened the “framework” on which creativity depends.

Absurd when at the same time as you’re creating this giant gaping hole in your creative economy, you’re engaged in another process to solve the underlying problem which, if successful, would massively reduce or eliminate the perceived need for such drastic and sweeping change.

If you’re a creator, get your stuff off the internet. And best find another job too, since yours just became a whole lot more perilous.

*this is a slight oversimplification but not much. When the final text of the Act is published I’ll add it here.

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