Ownership of your digital works is no longer automatic in the UK

April 29, 2013 12:23 PM

The Enterprise and Regulatory Reform Act changes UK copyright law so that only a "diligent search" for ownership is required before a work is considered "orphaned", and put into extended collective licensing. This is one part of a larger act that is supposed to "modernise the UK’s copyright regime to promote innovation in the design industry, encouraging investment in new products while strengthening copyright protections. " Pundits are comparing this to Instagram's assertion of ownership over its users' works last year.
posted by boo_radley (23 comments total)

This is a shockingly sane move with regard to copyright, so of course entrenched players are going to freak out.
posted by mullingitover at 12:45 PM on April 29, 2013 [11 favorites]

For the record, I don't like Parliament granting Ministers to power to create regulations - in effect, law.

That said, this looks perfectly reasonable to me, and nothing like Instagram's explicit change of copyright ownership. If I can't find the author of a random photograph from 1942 that I find in a book after diligently searching, I can use it for commercial or non-commercial purposes. (For example)
posted by alasdair at 12:46 PM on April 29, 2013 [1 favorite]

Here's an article on (among other things) the relationship between orphan works legislation and the British Library.
posted by feckless at 12:52 PM on April 29, 2013

A better move would be to simply allow works to fall into the public domain within a reasonable time, but this is better than the current situation.
posted by ChurchHatesTucker at 12:53 PM on April 29, 2013 [6 favorites]

This just tilts the field even farther in the direction of those who have money to litigate / redress infringement.

Let's just get shorter copyright terms. I'd be happy with 30 years. If you're an artist, create some new works, jesus, ditch diggers don't get paid for 30 years for digging one hole (though that's a dumb analogy, ditch diggers don't train for 30 years to learn how to dig either). If you're an artist and you die, that's enough time for your kids to grow up on your royalties if you were so fortunate. It forces innovation, while at the same time fostering it by opening up resources for "remixing" and so on.

Basically, though, it's "whatever the corporations want" these days in the legislature.
posted by seanmpuckett at 1:07 PM on April 29, 2013 [2 favorites]

Andrew Orlowski is comparing it to that. Later on he'll compare it to a creative holocaust or something, because he's a dick.

It will be the statutory instruments that provide the real details, but a lot of this is to deal with archival and research issues where the original owner is a company that went bankrupt and never sold the assets. Shockingly, Whitehall isn't actually full of people who hate the British creative industries.
posted by jaduncan at 1:08 PM on April 29, 2013 [2 favorites]

alasdair: "For the record, I don't like Parliament granting Ministers to power to create regulations - in effect, law.

That said, this looks perfectly reasonable to me, and nothing like Instagram's explicit change of copyright ownership. If I can't find the author of a random photograph from 1942 that I find in a book after diligently searching, I can use it for commercial or non-commercial purposes. (For example)"

I think the little devil will be in what constitutes a "diligent search". If I have a picture on Flickr, that somebody strips of identitfying info and posts onto 9gag, does 9gag own it? Do I? I'm also trying to understand how this law might play out internationally and struggling mightily with it.
posted by boo_radley at 1:16 PM on April 29, 2013 [1 favorite]

As an entrenched (tiny, US) player, I am in fact freaking out, for the reason that seanmpuckett notes. Post this Act, I must now prove that somebody failed to diligently search for me, before they started using my photograph, whereas pre this Act, I only had to prove that they were in fact using it without my permission. That's a big difference.

"Did you search diligently for the author of this photograph?"
"Yes! I looked all around!"

"Did the user of this photograph have your permission to use it?"
"Yes! Here is the agreement we made, both signed."

I do want society to benefit from works of art, at some point (I'm for constricting the duration of copyright), without having to pay for them. I just don't want the solution to libraries and archives usage problems to become the solution to corporations art costs problems. Judging by the way they behaved prior the the US copyright act in 1976 (and of course, in nearly any other way or context), they will find a way to use this to that exact advantage.
posted by superdne at 1:20 PM on April 29, 2013 [2 favorites]

I think the little devil will be in what constitutes a "diligent search". If I have a picture on Flickr, that somebody strips of identitfying info and posts onto 9gag, does 9gag own it? Do I?

Did you read the description?

...organisations that wish to use orphan works would have to conduct a 'diligent search' for the owner of orphan works before they could use the material. The searches would have to be verified as diligent by independent authorising bodies. In addition, organisations would have to pay a "market rate" to use orphan works so as rights holders could be recompensed for the use of the works if they were later identified.

posted by Jairus at 1:20 PM on April 29, 2013 [6 favorites]

This is a shockingly sane move with regard to copyright, so of course entrenched players are going to freak out.

mullingitover, do you have a response to the specific concern from photographers mentioned in the first link "who are concerned about existing practices that often result in information that identifies them as rights holders being stripped away from digital files"?

Orlowski mentions it too:

Since most digital images on the internet today are orphans - the metadata is missing or has been stripped by a large organisation - millions of photographs and illustrations are swept into such schemes. For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work - the user only needs to perform a "diligent search". But since this is likely to come up with a blank, they can proceed with impunity.

Assuming that's an accurate description of how the law might work in practice, the criticism seems to be that in addition to freeing up truly orphaned works like alasdair's random 1942 photograph it also captures recent works where metadata has been stripped by third parties and then treated as orphaned. That seems like a question worth addressing.

This part seems positive: In addition, organisations would have to pay a "market rate" to use orphan works so...rights holders could be recompensed for the use of the works if they were later identified.
posted by mediareport at 1:28 PM on April 29, 2013

Jairus: "Did you read the description?"

Yes, I saw that. "Verified as diligent" confounds me, but that may be me coming in as a techno-nerd. If you have an image, will changing the format (png to jpg) stump a search? What about changing the resolution? or image quality? What if my text was originally encoded in Unicode 16 and it gets re-encoded to ascii?There might be dozens of different ways for one work to be represented, some of which are difficult to automate.
posted by boo_radley at 1:30 PM on April 29, 2013

mullingitover, do you have a response to the specific concern from photographers mentioned in the first link "who are concerned about existing practices that often result in information that identifies them as rights holders being stripped away from digital files"?

Cutting the title page off of a copy of a book doesn't suddenly make it an orphaned work, and neither does stripping the EXIF data off of an image.
posted by Jairus at 1:30 PM on April 29, 2013 [3 favorites]

If "diligent search" for images includes things like TinEye and Google Image Search that take ten seconds to use then if you've had your images on the web and indexed for a few months you're probably in good shape. Fuck, even putting something on tumblr is good enough. I've tested GIS with my own portraits with the watermark cropped off, and GIS comes right back and identifies the exact image, with watermark.

So if you're an image creator, it seems like this is a good thing. Just check for off-license use of your own images occasionally and if you find one, prove it's yours and you get back payments for its use. So let's figure out how to maintain proof -- and make sure the market rate is reasonable -- and I don't see a problem here.
posted by seanmpuckett at 1:33 PM on April 29, 2013

In addition, organisations would have to pay a "market rate" to use orphan works so as rights holders could be recompensed for the use of the works if they were later identified.

I volunteer to hold this money for everyone. I'll just charge a wee processing fee and collect all interest and investment income and only disburse based on a court order verifying the identification after receiving a claim handling fee. Thanks.
posted by srboisvert at 2:55 PM on April 29, 2013 [2 favorites]

Now I'm seeing scaremongering in my Facebook feed about this: "OMG people will be able to claim ownership over all your Instagram photos PANIC!!!!"

This is why we can't have sensible copyright reform.
posted by feckless at 4:48 PM on April 29, 2013 [1 favorite]

The searches would have to be verified as diligent by independent authorising bodies.

The word "independent" is a joke here, of course.
posted by Pope Guilty at 5:55 PM on April 29, 2013

Go on?
posted by Sebmojo at 7:38 PM on April 29, 2013

There's no way in hell those "independent" bodies will be staffed by anybody not thoroughly vetted by Big Content. This is nothing but a way of ensuring that large corporations can exploit the work of people without a lot of money or connections without being subject to sanctions when they get caught. It's a means of removing the penalties for stealing that go above and beyond the licensing fees. Imagine a law that removed all punishments for theft but forced you to pay for what you stole if your victim caught you- that is what this law is. It's about taking a weapon that can be wielded by the little people out of their hands and giving it to the big people.
posted by Pope Guilty at 7:51 PM on April 29, 2013

It's about taking a weapon that can be wielded by the little people out of their hands and giving it to the big people.

And is this a new behaviour or just more of the same?

Say, did anyone figure out how you can have your content added to the 3 strikes or 6 strike internet piracy systems? (what's that? A system of enforcement that is voluntary, but only for the big players?)
posted by rough ashlar at 8:00 PM on April 29, 2013

"The mass of the public will never realise they've been robbed," thinks Ellis. The radical free-our-information bureaucrats at the Intellectual Property Office had already attempted to smuggle orphan works rules through via the Digital Economy Act in 2010, but were rebuffed. Thanks to a Google-friendly Conservative-led administration, they've now triumphed.

My god, that Orlowski article is moronic. It's typical of the FUD that comes out whenever someone suggests shaving a tiny little bit off the edge of the exclusive rights provided by copyright, no matter how inconsequential and harmless the diminution is going to be.

The idea that this law will end up with big companies downloading EXIF-stripped photos from the Internet and using them all over the place is just silly. The "diligent search" will cost money. Applying for a licence will cost money. Using the licence will cost more money. The licence won't be exclusive; anyone else would be able to conduct their own diligent search. A rights-holder who turns up later can revoke the licence. There will be all kinds of bureaucracy to work through to make use of the scheme at all.

The whole system is designed to make it so expensive and inconvenient to use an orphan work that nobody would do so if they had any reasonable alternative, like commissioning a new work in which they'd hold all rights.

Without an orphan works scheme, vast amounts of material held by libraries and archives will be locked up practically forever because nobody knows who made it or when it was made. Remember that institutions in the UK can't rely on fair use; this material is completely useless because doing anything with it until it's so old that it couldn't possibly be covered by copyright (i.e. well over a century) risks serious civil and criminal liability. See the impact assessment cjelli linked to:

The orphan works problem has resulted in large quantities of copyright works being unavailable for use, whether for cultural or commercial purposes. This concerns millions of pieces of content ranging from video and sound recording, as in the British Film Institute where 10% of the collection is orphaned to more than two million archive photos in the Imperial War Museum and artworks. There are also approximately 150 miles of shelved documents in The National Archives and National Records of Scotland, where up to 40% of the content is suspected orphans.

Tl;dr: ignore the FUD; this is a good thing.
posted by A Thousand Baited Hooks at 3:48 AM on April 30, 2013

Assuming that's an accurate description of how the law might work in practice, the criticism seems to be that in addition to freeing up truly orphaned works like alasdair's random 1942 photograph it also captures recent works where metadata has been stripped by third parties and then treated as orphaned. That seems like a question worth addressing.

Sure. Given that you have to pay market rates either way, there's no benefit to seaching negligently and opening yourself up to legal claims for copyright infringement.
posted by jaduncan at 4:17 AM on April 30, 2013

It's also worth mentioning that a number of other countries, including Canada, have had orphan works systems in place for years without any apparent harm having been done. None of the crazed rants about the coming UK orphan works catastrophe of government-sanctioned copyright looting that I've read seem to mention this, perhaps because it would detract from the purity of their message about UNLIMITED CORPORATE THEFT OF CREATIVE ESSENCE.
posted by A Thousand Baited Hooks at 4:43 AM on April 30, 2013

Sure. Given that you have to pay market rates either way, there's no benefit to seaching negligently and opening yourself up to legal claims for copyright infringement.

Except now the penalty for searching negligently is just the market rate.
posted by Pope Guilty at 9:13 PM on May 2, 2013