The UK Intellectual Property Office has issued a 'myth-busting' document about the effect on photographers of a newly-introduced law. The law includes new rules regulating the use of 'orphan works' - intellectual property whose copyright holder cannot be identified. This has led to concern that the changes will allow UK companies to use copyright material from anywhere in the world without the approval of the copyright holder.

The British Government's stated intention is to create a mechanism for old works to be published and made available to the public, once it becomes unfeasible to establish the original owner (such as the documents in a museum's collection). Critics suggest that the law allows companies to legally publish and profit from copyright work without the creator's consent (with some suggesting it effectively abolishes copyright in the UK or allows internet companies to profit from images without metadata).

UK Tech Blog The Register has put forward one extreme perspective on the rules. Among its stated concerns:

  • Power will shift 'away from citizens and towards large US corporations'.
  • The Act will permit 'the widespread commercial exploitation' of 'most digital images on the Internet'.
  • Although you must perform a 'diligent search' for an image's creator, 'this is likely to come up with a blank' and as such, 'a user of a work can act as if they are the owner of the work [...] if they're given permission to do so by the Secretary of State'.
  • Once someone has obtained permission to use an 'orphaned image' they can then sub-license it.

According to The Register's interpretation, the Act 'gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny.' It concludes, 'you'll have two stark choices to prevent being ripped off: remove your work from the internet entirely, or opt-out by registering it'.

The UK Intellectual Property Office's document responds to and rejects many of its assertions - with a particular focus on the effects on photographers.

It points out that an independent body would have to verify every attempt to classify a work as an orphan work - including proof that a 'diligent search' has been made to identify the copyright holder before a license could be granted. It also points out that it will usually be easier to identify and pay for an alternative image where the author can be found, rather than going through the process of gaining an orphan work license.

Where has this come from?

The Enterprise and Regulatory Reform Act 2013, signed into law on April 25th, includes rules covering orphaned works. Similar rules had already been removed from an earlier bill, in response to complaints from photographers, who interpreted it as a rights grab.

The Act has now been published, and can be downloaded as a PDF (Section 77, on page 68 of the document). It takes the form of 'enabling legislation' - broad definitions of law that require the fine details to be added later (but without a parliamentary vote - a factor that has concerned some critics, including The Register).

The current law is a framework that specifies what considerations the final regulations must cover, such as who can qualify as a license granting body and where the money raised from such licenses will go. Viscount Younger of Leckie, Parliamentary Under Secretary of State at the Department for Business Innovation and Skills, has said there will be consultation to determine the fine details and that 'the provision for orphan work licensing will be construed restrictively by the courts.'

The Royal Photographic Society and the British Copyright Council are among those meeting Viscount Younger in June to discuss these details.


Have you been following the debate about the Enterprise and Regulatory Reform Act in the UK? What do you think? Let us know in the comments.