In the run up to the government's review of the UK and European copyright legislation I, and many others, contacted other creatives, collectives and various art's funding bodies ... only to find apathy towards these events ... and in some cases a definite leaning towards the government's stance on copyright erosion rather than towards its duty to its membership by protecting those rights.
These people and organisations were warned that unless you do something to state your case, the implications of these changes would be dire to the whole of the creative community - not just photographers.
It is now legal to use media deemed 'Orphan Works'.
The changes mean that photographs or other creative works can be used without the owners' explicit permission as long as a 'diligent search' has taken place and the owner hasn't been identified.
A full copy of the act, with amendments can be found at www.jenkins-ip.com. The new legislation applying to Orphan Works will take away the protection afforded by the The Copyright, Designs and Patents Act 1988.
Orphan works are pieces of creativity - photographs, paintings, words, songs, music - anything that has been created but whose creator cannot be identified. Previously Orphan Works were given the same level of protection through the Copyright Act.
Why did the Government want legislative changes introduced to 'Orphan works'? Simply through pressure applied by businesses. As the legislation stood before the changes, no one was allowed to use any creative content without the permission of the creator. The Internet has generated a huge amount of creative content that is not properly tagged with regards to ownership. This is further complicated by social media organisations such as Facebook and Twitter, amongst others, that state that by uploading any creative content to their website, by default, you grant them a licence to do anything that they want with your images. The first thing they do is strip any metadata from anything that you post as an image or video. This creates a bank of 'Orphan works' that are now ready to be exploited by the business world.
The image below shows a photograph that has the metadata in tact. These are the details that are stripped by companies such as Facebook and the title of the image is replaced by a computer generated tag. The only thing that will stay in place is the 'watermark' with the creator's name ... unfortunately, the majority of photographers submiting images to social media networks don't place any watermarks on their images denoting their copyright. All of those images can now be used for free if the owner cannot be identified.
Another way that Orphan Works are created is by people submitting items to their own websites as creatives without appropriate tagging - eg the metadata on their images isn't filled in and the owner/creator of the image can't be identified; these images then appear on search engines such as Google. Google will state that the image may be covered by copyright ... but certain businesses won't bother trying to find the creator.
Why are certain creatives up in arms over the changes? It's affecting people's livelihoods. Photographers, writers, musicians, songwriters will be the main people affected if their content is on the internet and unidentifiable. Normally, these creatives would be able to charge a licence fee to businesses wishing to use their creative content. The government has now made it legal for Orphan Works to be used for free by businesses if the creator of the content cannot be identified, while not legislating against companies that strip metadata thus creating more Orphan Works.
The Government's agenda is clear, it's greasing the wheels of commerce ... which will doubtless benefit from kickbacks somewhere along the line ... but the world of professional photography has taken another serious hit. These changes will take food off the table for many creatives, not just photographers. Why would businesses pay for creative content if they can find free items that suit their needs on the internet?
Here are some examples of terms and conditions used by some websites to use your creative content:
You retain all of your ownership rights in material you upload, comments you post, or other content you provide to the Site (“User Content”). By uploading User Content, however, you grant National Geographic (which includes its subsidiaries, affiliates, joint venturers, and licensees) the following rights: a royalty-free, worldwide, perpetual license to display, distribute, reproduce, and create derivatives of the User Content, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional, and trade uses in connection with NG Products. National Geographic may license or sublicense, in whole or in part, to third parties rights in User Content as appropriate to distribute, market, or promote such NG Products. To enable National Geographic to use the User Content in NG Products, NG may request you to provide the User Content in other formats, and if technically possible, you agree to provide the User Content in such other formats so long as National Geographic pays you the reasonable costs of providing the User Content in such other formats. A NG Product is defined as "a product of National Geographic, a subsidiary, affiliate, joint venturer, or licensee of National Geographic, in any language, over which National Geographic has Editorial Control.” For the purposes of this Agreement, "Editorial Control" means the right to review, consult regarding, formulate standards for, or to exercise a veto over the appearance, text, use, or promotion of the NG Product. You also agree that National Geographic may make User Content available to users of the Site who may display and redistribute it in the same way that National Geographic makes all other Content available.
If you submit an image, you do so in accordance with the BBC's Terms and Conditions.
Terms and conditions
In contributing to BBC Weather you agree to grant us a royalty-free, non-exclusive licence to publish and otherwise use the material in any way that we want, and in any media worldwide. This may include the transmission of the material by our overseas partners; these are all reputable foreign news broadcasters who are prohibited from altering the material in any way or making it available to other UK broadcasters or to the print media. (See the Terms and Conditions for the full terms of our rights.)
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
This is just a small example of organisations that want full rights to your creative content. Remember, you don't have to be a professional to be a creative. A child of two that creates a drawring with crayons is a creative too ... and that drawring is automatically covered by copyright, as are you family photographs that you post on Facebook and Twitter.
Amateur Photographers do a considerable amount of damage to the issue. The only difference between and amateur and a professional is that one gets paid, while the other enjoys the activity as a hobby. In terms of the finished article - I have seen images from amateurs that are far more beautiful than some professionals, yet many amateurs won't tag their images with metadata or a watermark. As a result, they're contributing towards the decline of professional photography as an industry.
Where a creator CAN be identified, the governement want to facilitate the licensing of its media through a 'copyright hub'. The creator will have no say in whether it can be used or how it can be used. As a creative professional, I am very clear about the fact that I only want my art used by companies and organisations that I am comfortable being involved with (eg I'd be distraught if I found one of my images being used on a website being run by some sort of fascist or racist organisation ... or one that offered holidays hunting wildlife).
Get wise - tag your work carefully and be careful where you upload it. It's better to upload your images to your own website and post a link to that location from places such as Facebook. Check out http://www.wolf-photography.com/html/IP-UK/respectIP.html for tricks and tips and do check the net for images or other contenet against your own name now and then. You might be surprised as to what you'll find and how your work may be being used without your authority.
Villayat 'Wolf' Sunkmanitu