The Digital Economy Bill (DEB) is a complex piece of legislation, and you may have heard about the controversial proposals on disconnecting filesharers. But the DEB also contains legislation to make changes to the law on Copyright, which will affect anyone who has ever worked as a freelance or who retains copyright in their work.
Clause 43 of the DEB outlines provision for legislation on ‘orphan works’ and ‘extended collective licensing’. An ‘orphan’ work is any creative work where the creator is unknown or cannot be contacted, and the DEB allows for any future Government to set up licensing schemes for anyone to use such orphan works, including commercial companies.
All creators will be affected, including writers, illustrators and photographers, but photographers are likely to be among the hardest hit as so many photographs are published without a byline, or copied and used without either a byline or permission or payment. A major problem with allowing orphan works to be used is that there is no provision in the DEB to strengthen moral rights, that is the right to a credit with your work and the right not to have the work used in a ‘derogatory’ way, in ways that you might object to.
Thousands of orphan works are created every day with credits left off and electronic metadata stripped from image files. Under current Copyright legislation there is a general exception to moral rights for the purpose of reporting news and for papers and magazines, which means that you do not have the right to demand a credit. The NUJ wants better moral rights in the UK, like creators have in most European countries.
“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”
(Viscount Bridgeman, speaking in the House of Lords during debate on the Digital Economy Bill Clause 43)
By licensing the use of orphans while doing nothing to prevent their creation in the first place, the Government is opening the way to wholesale commercial exploitation of orphan works, which will undermine the market in a media industry already in crisis. Added to this the DEB also allows for the creation of extended collective licensing. Again as with orphan works most of the detail has been left out of the DEB, but it allows the next Government to make up the law as they like using secondary legislation ‘statutory instruments’ and with little or no further debate in Parliament. This in itself is profoundly undemocratic.
Extended collective licensing may be used to license your previously published work without your permission, by those whom you might not wish to use your work, and at a price that you might not agree with. You may lose your exclusive right under Copyright law to make your own decisions as to who uses your work, when, how, and for what price. If you are allowed to opt out of the scheme you are then likely to be bypassed as a creator by publishers keen to save money by using the vast pool of orphan works and amateur material under collective licensing.
The DEB has been through the Lords first, with the Government ignoring many suggested amendments. It is due for its second reading in the Commons next Tuesday 6 April. But if the election is announced then, all pending bills will go to the ‘wash-up’, where they are horse-traded between the main parties behind closed doors with no Parliamentary debate or scrutiny by Commons committee.
The NUJ’s Freelance Industrial Council has voted to support the Stop43 campaign, and the NUJ has now added its logo to almost every other UK body representing photographers on the campaign’s website. The campaign is to get clause 43 removed from the Digital Economy Bill, and the issues can then be looked at afresh after the election. Please take a look at the Stop 43 website which has background information and further links, and pass the campaign message and the viral images onto friends and colleagues. But most of all please contact both your own MP and the list of key MPs who will be involved in the wash up process.
You could also ask that clause 46 is removed from the bill, as this gives the Government wide powers to make consequential provision including it seems the ability to amend or subordinate previous Acts of Parliament such as the Copyright Designs and Patents Act 1988. One of the issues throughout the DEB has been the willingness of the Government to grant itself the power to shape this legislation in future without further debate in Parliament.
Although it is better to write letters to MPs as by law they have to reply to you, due to the timescale and the Easter bank holiday you could also copy your letter by email to both your own MP and the key MPs on the list. Please don’t delay as there is little time left to stop clause 43 from being passed into law.
For further information: see Stop43.org.uk