No, The UK Did Not Just Abolish Copyright, Despite What Photographers Seem To Think

from the know-your-enemy dept

The photographers are freaking out again. After last year's excitement with Instagram's changes to its terms of service, now it's the UK's Enterprise and Regulatory Reform (ERR) Act that's getting people worked up. Here, for example, is a post on the site of Stop43, a photographers group which successfully fought against the inclusion of orphan works in the UK's Digital Economy Act, with the title: "The Enterprise And Regulatory Reform Act Has Reversed The Normal Workings Of Copyright":

Normal copyright law as agreed in international copyright treaties, to which the UK is signatory, grant copyright owners 'the exclusive right of authorizing the reproduction of [their] works, in any manner or form.' Creators don't have to apply for this right: it is theirs automatically and without formality. This means that unless the work is used under one of the narrowly-defined Fair Dealing exceptions to copyright allowed by these treaties, it is illegal to exploit a copyright work without the permission of its owner.

The EAA Act changes all that. Under its provisions it will be legal to exploit a copyright work - photograph, film, text, song, whatever -- without the knowledge, permission, or payment to its owner.
As with the 2010 Digital Economy Act, the bone of contention for photographers is how orphan works will be treated under UK law. The ERR Act has not yet been published, but here's a good summary of what it says, from Out-Law.com:
Under the Government's plans, 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.
Sounds pretty reasonable: works would only be regarded as orphans after a "diligent search". Contrary to what some are saying, it will not be possible for companies to conduct any old kind of search, and claim that it was "diligent": there will be independent authorizing bodies that will check the search was diligent enough, and not just perfunctory. Moreover, even if a work is classed as an orphan, those using it must still pay a fee at the market rate that is held on account in case the owner turns up. So there's no question of works being used for nothing, or of owners not getting paid if they want claim their works.

The big problem turns out to be metadata -- or, rather, the absence of it. Google's Tim Bray explains the concept in a usefully calm post looking at the new UK orphan regulations:

It turns out that electronic photograph files contain not just the pixels that form the image, but also textual fields containing "metadata", information about the picture. This is generally referred to as Exif, and it identifies some or all of: the camera, lens, date, location (if there's a GPS), size, aperture, and lots of other arcane photographic details. Plus, crucially, the name of the creator.
Important stuff. But when photos are uploaded to certain sites, some or all of the metadata is stripped out. Here's what happened when Bray uploaded a photo to Twitter as a test:
I took the picture above, made sure it had my name in the Artist, By-line, and Creator fields, and posted it to Twitter using the Web interface. Then I downloaded the picture and checked the Exif, and sure enough Twitter had nuked it. There were 245 lines of Exif info going in, 58 coming out, and none of them included my name.
According to Bray, other popular online services similarly strip out metadata. This is why photographers are concerned about the new orphan legislation in the UK. They fear that if their photos are available on such sites with little or no metadata, publishers will be able to claim that they couldn't find the creators, and so turn any of those images into orphans.

But this overlooks a number of points. Just because the metadata is absent from photos stored on certain sites does not mean that publishers will be able to claim that they couldn't find the creators as a result. Remember, they must carry out a diligent search, and simply looking at the metadata clearly doesn't qualify. In addition, they will need to look widely elsewhere in order to check whether there is an identifiable creator.

One obvious way to do that is using a search engine. For example, I downloaded the image that Bray uses in his post, and which he discovered had lost its metadata, even on his own site. Then I used Google's image search, which lets you upload images about which you want information. It not only found Bray's original, but also the page on which it is used. Now, it might be argued that Bray's site is quite well known, and therefore not representative, but this trivial experiment does suggest a relatively simple way to address the photographers' concerns.

Provided photographers store somewhere online an image along with their contact details, it is almost certain that Google and other search engines will find it. So an obvious way to avoid having their creations orphaned is to place them in some kind of image repository. This might be set up by photographers' associations for their members, or by independent companies offering a dedicated service. The price of storage is so low now that such a repository would cost very little to use, even for thousands of photos. The availability of images with attribution details would ensure that even a relatively cursory search will locate the owner of the work, thus blocking its use as an orphan.

Ironically, then, it may well be that Google, so often the object of hatred for photographers that see it as feeding parasitically off their work by providing easy access to their online images, will also offer them with the easiest way to avoid the problems with orphan works.

But there's another important issue here. The real threat to photographers and their livelihoods is not the UK's new orphan works legislation; it is the unauthorized stripping away of metadata from uploaded photos. Instead of attacking the new law, photographers should be fighting for full metadata to be retained wherever and however they upload their pictures, at least as an option. That seems entirely justified -- unlike the current moves to brand a reasonable framework to liberate millions of "hostage works" as an attempt to "abolish copyright".

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Apr 30th, 2013 @ 2:50pm

    Supressing the Orphans

    Isn't it more likely that the real goal of the critics is to keep all of the orphan works unusable, to reduce competition for their own works?

     

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    Anonymous Coward, Apr 30th, 2013 @ 2:54pm

    Privacy

    I for one appreciate the automatic stripping of detailed metadata from casually updated snapshots. It's amazing how often you can grab a photo online, look at the exif data to get a longitude and latitude, and then plug that into Google maps to see the exact location where the photo was taken. If you forget to strip your photos, anyone looking at them can find your house, etc.

     

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    mmrtnt (profile), Apr 30th, 2013 @ 2:55pm

    What About Digital Artwork

    Anyone have any idea how this would apply to artwork created with a graphics program like Inkscape or Illustrator?

     

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    Anonymous Coward, Apr 30th, 2013 @ 2:56pm

    Re: Privacy

    BTW, I noticed this when a gallery application I use was automatically showing me the address where downloaded photos were taken.

     

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    Anonymous Coward, Apr 30th, 2013 @ 2:57pm

    1) Sites started nuking metadata for privacy concerns more then once people got threatened, humiliated or exposed, so this is why websites nuke metadata sure they could leave some, but GPS and thumbnails are sure to go in any other website specially if you want to censor the photograph in some manner.

    2) There are tones of image search engines, have they never used TinyEye to search for infringing content? or:
    picsearch
    ditto
    everystockphoto
    imageafter
    stock.xchng
    Ask Images
    imagery

    3) Even if someone uses it without permission, what the law says there is that people won't get punished in the worst case scenario but will have to stop using the content if the copyright holder shows up.

    A bunch of whinning babies is what they are.

     

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  6.  
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    mattshow (profile), Apr 30th, 2013 @ 2:58pm

    Act is available online... mostly

    The Act may not have been printed, but versions of it are available online at http://services.parliament.uk/bills/2012-13/enterpriseandregulatoryreform.html

    The web site isn't the best and I couldn't see a version which was clearly marked as the final version which just received Royal Assent. With that said, it looked to me like this was the most recent version: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0089/2013089.i-vi.html

    Section 116A is the part the photogs are freaking out about.

    Canada has had similar legislation since at least 1997, so if this was going to destroy the business model of photographers worldwide, you'd think it would have already happened.

     

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  7.  
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    Duke (profile), Apr 30th, 2013 @ 3:02pm

    There's a lot of FUD going around about this, and it's nice to see someone actually looking into what is really happening.

    You can see a draft of the text of the law here (clause 79, which inserts a few new sections into the CDPA). My understanding is that this won't be giving ordinary people new powers, but will allow certain "authorised bodies" (probably collecting societies) to licence orphan works, collect the money, and save it until a copyright owner comes forward.

    It seems the photographers are complaining that this is all about big US companies (iirc Google), but my impression is that it was museums and archives originally behind this, but then the collecting societies got involved, so they'll end up being the only real winners (as they may get to keep all those licence fees).

    Personally, the orphan works provisions don't worry me that much - not as much as the extended collective licensing (new section 116B), which may allow certain existing collecting societies to licence and collect on *any* works (orphan or not) provided they are within the normal scope of the collecting society. This would be opt-out, but with no requirements that a reasonable royalty rate be gathered, or that any of the money has to be paid to the actual copyright owner if they complain.

     

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  8.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:05pm

    Re: What About Digital Artwork

    A searchable web site where you can claim ownership works with image search. Note Inkcape supports adding metadata to its files.

     

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  9.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:07pm

    Missed opportunity, because if the UK did not abolish it.
    Damn shame.

     

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  10.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:08pm

    Re: Supressing the Orphans

    Of course. The whole purpose of IP is to reduce competition. See, for example, Veoh and Megaupload. See govt established broadcasting and cableco monopolies. See restaurants being afraid of hosting independent performers without paying a third party parasite a licensing fee and hence many won't host independent performers. See the fact that bakeries are even afraid of allowing children to draw custom drawings on their birthday cakes because something might infringe. The whole thing is not just about stopping infringement, the whole thing is about stopping all competition period.

     

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  11.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:17pm

    Proving ownership

    Moreover, even if a work is classed as an orphan, those using it must still pay a fee at the market rate that is held on account in case the owner turns up.

    I've often wondered how that would work. If the author's connection to the work is sufficiently tenuous that it was ever deemed an orphan, what is required to establish the author's claim to hold the rights when they do surface? In an era without negatives and without registration of copyrights, how do you prove ownership?

     

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  12.  
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    MK, Apr 30th, 2013 @ 3:27pm

    Reverse image, Market rate, database - flawed arguements

    There are some worrying flaws to your reasoning regarding reverse image search.

    What happens when someone scans an image from a book that has never been digitised and posts without any attribution?

    Also the notion of 'a market rate' shows a considerable lack of understanding of how photographer charge for their work - rates vary massively according to photographer.

    It should be down to the photographer to decide what to charge for their work, like pretty much any other business. This would take into accounts factors such as time spent on the image, assistants, studio hire, hair and makeup artists and models.

    Speaking of models does this 'market rate' include model usage fees if there is a model in the picture? Again this can vary massively from model to model so how is this going to be calculated if the model cannot be identified? What if the model has an exclusivity agreement with another business and another company uses his/her image ?

    What happens when the image copyright holder is not in the UK and it gets used?

    Having to upload and manage a database of images like this is going to add to photographers workload , without any additional compensation.

    A small point perhaps but not everyone wants to have their name associated with every single image they have ever shot -people tend to want to show their best work. Your suggestion of some kind of mass index of images with associated copyright holder means people may loose their ability to manage their work and therefore their own brand.

    I agree that some orphan works should be able to be used by museums, art galleries, schools etc but this essentialy allows large companies to have access to imagery at whatever 'market rate' the UK government decides upon.

     

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    Anonymous Coward, Apr 30th, 2013 @ 3:46pm

    Besides the privacy issues related to geo location, etc., there are good reasons many sites strip out the metadata. On the sites I work on, we strip out metadata on user-uploaded images as a security measure to prevent remote exploits. In the past, attackers have found ways to create specially crafted images that exploit browser bugs to hack into end user systems. Discarding everything from the original uploaded file except for sanitized pixel data helps keep our users safe from this kind of attack.

     

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  14.  
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    Anonymous Coward, Apr 30th, 2013 @ 3:53pm

    Re: Reverse image, Market rate, database - flawed arguements

    The market rate only kicks in if the image is orphaned, i.e. a "diligent search" fails to find the creator. Photographers (and models) still get to set their own rates for photos they take credit for.

    Having to upload and manage a database of images like this is going to add to photographers workload , without any additional compensation.

    But it does create additional compensation, in the rare case where an orphaned image is later claimed. Additionally, such online archives make work easier to find for paying customers.

    A small point perhaps but not everyone wants to have their name associated with every single image they have ever shot....

    Fair enough. Don't claim it, don't get paid. No real change here compared to images that are never released.

     

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    Anonymous Coward, Apr 30th, 2013 @ 3:55pm

    Re: Re: Reverse image, Market rate, database - flawed arguements

    Sorry, forgot to terminate the last quote. Last paragraph should not be in italics.

     

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  16.  
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    JarHead (profile), Apr 30th, 2013 @ 3:59pm

    Does size matter anymore?

    In my experience, stripping the EXIF data could significantly reduce the file size of the image. For some part of the world where inet bandwith is not a premium, the size savings may not matter, but for others where it's a premium, it does matter.

    I can understand why some sites automatically strip the EXIF data. For them to reach the maximum penetration possible, they have to consider the lowest bandwith available to the user. Hence, smaller file transfer is desirable. I also use this technique on some sites I helped develop, and the bandwith saving is huge IMO (some pages reached nearly 9mb savings; but of course I'm combining EXIF stripping with other techniques).

    That was sometimes ago, when such stripping really matters. However, the lower bandwith are now slowly rising. Does the rising made the saving from stripping EXIF matter now IDK, as I quit the web dev arena a while ago.

     

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  17.  
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    Anonymous Coward, Apr 30th, 2013 @ 4:05pm

    Re: Re: Privacy

    From: https://en.wikipedia.org/wiki/Exchangeable_image_file_format#Privacy_and_security


    In December 2012, anti-virus programmer John McAfee was arrested in Guatemala while fleeing from alleged persecution in Belize, which shares a border. Vice (magazine) had published an exclusive interview with McAfee "on the run" that included a photo of McAfee with a Vice reporter taken with an iPhone 4S smart phone. The photo's metadata included GPS coordinates locating McAfee in Guatemala, and he was captured two days later.

     

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  18.  
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    Anonymous Coward, Apr 30th, 2013 @ 4:46pm

    Re: Reverse image, Market rate, database - flawed arguements

    Quote:
    What happens when someone scans an image from a book that has never been digitised and posts without any attribution?

    Use TinyEye and see every freaking instance of the image you can find, how do you think small photographers are able to spot their own work and send those anoying DMCA's everywhere?

    Quote:
    Also the notion of 'a market rate' shows a considerable lack of understanding of how photographer charge for their work - rates vary massively according to photographer.

    It should be down to the photographer to decide what to charge for their work, like pretty much any other business. This would take into accounts factors such as time spent on the image, assistants, studio hire, hair and makeup artists and models.

    Still is, what this has to do with pricing?
    Anyways just don't complain if most people decide not to pay it.

    Quote:
    Speaking of models does this 'market rate' include model usage fees if there is a model in the picture? Again this can vary massively from model to model so how is this going to be calculated if the model cannot be identified? What if the model has an exclusivity agreement with another business and another company uses his/her image ?

    What model?
    What do orphan works have to do with the current copyright model that doesn't change at all?

    Quote:
    What happens when the image copyright holder is not in the UK and it gets used?

    Having to upload and manage a database of images like this is going to add to photographers workload , without any additional compensation.

    What it always happened before, those that have the money sue in the country that the infringiment occured or just STFU, it was this way before and it is now, with one cavet, now one can actually find those instances more easily, before it would happen and nobody would know about it.

    Quote:
    A small point perhaps but not everyone wants to have their name associated with every single image they have ever shot -people tend to want to show their best work. Your suggestion of some kind of mass index of images with associated copyright holder means people may loose their ability to manage their work and therefore their own brand.

    No mine problem, not anybody else's problem either, is your body of work, live with it. You want protection right, then you have to actually put your name on it, how difficult is that to understand?

     

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  19.  
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    Anonymous Coward, Apr 30th, 2013 @ 4:52pm

    Re: Privacy

    There are many cases where people got stung by the metadata, websites everywhere created a panic about how evil metadata was bla bla bla.

    It can be a problem, the GPS coordinates open the door for not only law enforcement but, bullies and criminals to find you, if you are posting photos of the cartel the last thing you want is your address or name in there, people posting adult ads or provocative photos often forget that some image formats actually retain a thumbnail version of the original photo which some image editor don't touch, don't know if Photoshop started updating the thumbnails on JPEG images after that women posted some nude photos of herself with black strips and people found the thumbnails without the black strips.

     

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    saulgoode (profile), Apr 30th, 2013 @ 5:21pm

    There is no reason why all copyrighted works shouldn't have a digitized copy registered with a national copyright office. After a suitable grace period, if a work hasn't been registered and a digitized copy submitted, it should be assumed that the creator expected the work to be public domain.

    Copyright holders should also be expected to periodically re-register their works. It is ridiculous to have such a large percentage of the world's culture and knowledge in a state of limbo as to its accessibility, and for there to be such great uncertainty surrounding the legality of commonplace activities.

     

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  21.  
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    Dan, Apr 30th, 2013 @ 10:16pm

    Glad they fixed something that wasn't broken

    I'm genuinely surprised to see this legislation defended. What was broken that needed this fix?

    This sort of legislation is only defensible where usage is limited to non-commercial use.

    Why does need to use someone else's 'orphan' work for their commercial benefit? So you like collection of cat photos? Great, find me and pay me or find (and pay) a photographer to take similar photos.

    And this reliance on a diligent search is the weakest argument. I'd happily put money on this diligent search boiling down to an automated search through a for-profit image registry.

    Oh, and if you see your work show up without getting paid, have fun going through our mostly automated bureacracy to retrieve what we've decided is the appropriate market rate.

    Overall, this legislation favours and saves money for those most able to afford to go through more traditional channels and costs money and time for small businesses.

     

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  22.  
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    MK, Apr 30th, 2013 @ 11:19pm

    Re: Re: Reverse image, Market rate, database - flawed arguements

    Yes but its work that photographers don't have to do at present. This extra work has little benefit.

    "Don't claim it don't get paid"

    You miss the point - I'm commissioned for something that is not portfolio standard and my client has a licence for web use.

    During this time people start unauthorised posting on tumblr etc, and then the clients licence expires the only copies on the web will be the orphaned ones on tumblr.

    To date I've never had an issue with bloggers using my images but now the one's that don't ask and don't bother crediting are going to become a problem

     

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  23.  
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    MK, Apr 30th, 2013 @ 11:24pm

    Re: Re: Reverse image, Market rate, database - flawed arguements

    How Is someone going to use tineye to reverse search an image that is scanned from a book? You haven't really thought that through have you!

     

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  24.  
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    MK, Apr 30th, 2013 @ 11:30pm

    Re: Re: Reverse image, Market rate, database - flawed arguements

    "Still is, what this has to do with pricing?
    Anyways just don't complain if most people decide not to pay it."

    The UK government will be setting the rate.

    If someone decides to charge a ridiculous amount of money for something and no one buys it then that's fine, they just won't get very far.

     

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  25.  
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    Anonymous Coward, Apr 30th, 2013 @ 11:57pm

    Market rate

    The thing that confuses me about this is the "market rate" for orphaned works. It's cool that if a work is thought to be orphaned, but turns out not to be orphaned, that the artist will get paid.

    But what about works that are legitimately orphaned, and never have a copyright holder claim them? Will these works ever enter the public domain? The term of copyright in the UK is the life of the author + 70 years, and many of these orphaned works are unlikely to have a known author. If these works do enter the public domain, how is the copyright term determined? And what happens to the "market rate" that people have paid to use orphaned works, when the author never appears to collect their fees?

    I'm looking forward to the publication of the actual text, but the summaries so far seriously worry me. As far as I can tell, it's essentially giving the government an indefinite-term copyright on orphaned works and allowing them to collect (and keep) fees indefinitely.

     

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  26.  
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    G Thompson (profile), Apr 30th, 2013 @ 11:58pm

    Metadata is NOT relieable nor is it meant to be

    Exif or IPTC data is ONLY metadata and is not meant to be used for providence and/or ownership purposes and only for searching/tagging that's why it's able to be easily (and quite the norm actually) stripped from items.

    If these photographers (and anyone creating Digital products) want to control their works then they need to actually use the tools and standards that have been created to do this.

    This is where Digital Watermarks that are highly verifiable and authentic, like those from Digimarc, MarkAny or DataMark for example if you are doing a fair few projects per year for commercial purposes are supposed to be used.

    These are for Photographers, AV Producers, ebooks, etc.. and though cost to actually use them thats the cost of doing business. If you want your product to have providence and authenticity then PAY FOR THEM! If you just want your product tagged with unverifiable and highly unreliable data then by all means use the free meta-data tools that are NOT meant for that purpose.

    For more info about Digital Watermarks go look on the Alliance page who have a great selection of information of what DW's can and should be used for as well as a wide variety of companies that provide commercial DW services

    http://www.digitalwatermarkingalliance.org/default.asp

     

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  27.  
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    MK, May 1st, 2013 @ 12:57am

    Re: Market rate

    What happens to the payment for orphaned work that is never claimed is a good point, and I agree with your concern that the money is going to straight into the pockets of the government.

    At the moment there definitely needs to be legislation allowing fair use of orphans, however this legislation appears not really very thought out well, displaying a lack of understanding of both the internet and photographic world, typical of politicians.

     

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  28.  
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    Tim Hoy, May 1st, 2013 @ 1:49am

    Re: Privacy

    I disable the GPS feature on any of my cameras that have it for this very reason. The rest I want in there as sticky as possible. Google has created so much stuff that most of us now take for granted (just like Adobe and Photoshop) but that doesn't mean that they haven't both made an empire's wealth in running it. That's successful business, but it also gives them a budget with which they can aggressively lobby for statutes that line their pockets - a lobbying power that the photographer, writer, musician, poet, lyricist can't match so end up with legislation that serves business better than the consumer? No change there then.

     

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  29.  
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    Anonymous Coward, May 1st, 2013 @ 3:00am

    Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    Sorry but you were commissioned.
    You did your job, you got paid.

    I work and I get paid but I don't expect to be paid repeatedly for the work I did last year. Why should you?

     

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    Mike Masnick (profile), May 1st, 2013 @ 3:29am

    Re: Glad they fixed something that wasn't broken

    I'm genuinely surprised to see this legislation defended. What was broken that needed this fix?


    If you're unaware of the problem with orphan works, you're not paying attention. So much has been written about the problem of locked up and lost culture it's not even funny.

    Here's 5 seconds of work:
    http://web.law.duke.edu/cspd/orphanworks.html
    http://www.copyright.gov/orphan/
    https://www. eff.org/deeplinks/2013/02/orphan-works-problem-time-fix-it
    http://www.ala.org/advocacy/copyright/or phan

    It's a massive problem in that history, culture is being lost, and the world is unable to do anything about it.

    This sort of legislation is only defensible where usage is limited to non-commercial use.


    Why? I don't see that at all. If someone can make an orphaned work commercially interesting again, what's wrong with that?

    Why does need to use someone else's 'orphan' work for their commercial benefit? So you like collection of cat photos? Great, find me and pay me or find (and pay) a photographer to take similar photos.

    Ah, I think you don't understand the issue... at all. We're not talking about your cat pictures. We're talking about amazing works of culture and history that are being lost forever because they're locked up.

    And this reliance on a diligent search is the weakest argument. I'd happily put money on this diligent search boiling down to an automated search through a for-profit image registry.

    Then send us your money because you're flat out wrong. Address is on our contact page. We'll be waiting.

    Oh, and if you see your work show up without getting paid, have fun going through our mostly automated bureacracy to retrieve what we've decided is the appropriate market rate.

    So you're dismissing the system that doesn't even exist yet? Okay, here's your choice: you wallow in obscurity and have no one care at all about your cat photos such that they and you disappear... or you let someone help make them famous. You want the former? I want the latter. So do most people.

    Overall, this legislation favours and saves money for those most able to afford to go through more traditional channels and costs money and time for small businesses.

    No, it doesn't. If you took 3 seconds to actually understand the issue, rather than ranting, you'd understand that.

     

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  31.  
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    Anonymous Coward, May 1st, 2013 @ 3:46am

    Re: Reverse image, Market rate, database - flawed arguements

    A small point perhaps but not everyone wants to have their name associated with every single image they have ever shot -people tend to want to show their best work.

    An image cannot become an orphan work, or even be found if it has not been published. If you do not like the photograph, do not publish it. For images that are published, and for which you keep the copyright, a web presence with an image gallery makes it possible to find your ownership of the image.
    A scanned image posted on the Internet is often a copyright violation, and a problem to be dealt with by the copyright owner, which is often the publisher of the book or magazine that it came from.

     

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    Owen Blacker, May 1st, 2013 @ 4:00am

    Re: Privacy

    That's a valid concern, but surely it's better for creators to beaware of the metadata they might be including inadvertently than to strip it off deliberately from all images?

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 5:58am

    The real threat to photographers and their livelihoods is not the UK's new orphan works legislation; it is the unauthorized stripping away of metadata from uploaded photos.

    I really don't think so. The metadata can be changed as easily as it can be stripped, so it's not as if it is guaranteed to be accurate. Maintaining metadata is useless for protection of credit.

    In any case, the stripping of metadata by default is really best practice for users' privacy. Folks that don't know how the metadata works and do wind up with accurate details—including the GPS coordinates for their home, workplace, or favorite hangout—are not likely to want that info tagged on every Twitter post they make for any cyberstalker to pick up. (Well, at least the types of users that don't compulsively check into Foursquare or similar services every time they arrive somewhere, anyway...)

     

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  34.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 6:05am

    Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    To date I've never had an issue with bloggers using my images but now the one's that don't ask and don't bother crediting are going to become a problem.

    ???

    If it is an image you don't want to have your name associated with wouldn't the lack of credit be a good thing? You are contradicting yourself.

     

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  35.  
    identicon
    MK, May 1st, 2013 @ 6:31am

    Re: Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    Sorry but I think it should be up to me to set the terms of how my clients use my work.

    If they don't like it they can go somewhere else.

    I'm creating something that has a value beyond the moment it is created.

     

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  36.  
    identicon
    martin Brent, May 1st, 2013 @ 6:31am

    'orphan works' whats the problem?

    Clearly using work that you dont have permission to use is wrong. Pond like amoeba can work that one out, the UK Government 'legitimising' this by charging a fee doesnt make it suddenly OK, cliched but true, two wrongs dont make a right.

    If you find a car with the keys in it, would you ask around the street for a bit then when your 'diligent' search yielded no owner ID take it anyway and sell it on?

    Can someone explain to me why if we can steal images why we cant take anything we 'find' ?

    Also many are missing the big picture, the biggest losers in all this will be your Mothers, wives, girlfriends and kids when their personal images suddenly start popping up in ads for chat lines, pornography or whatever.

    Most Pros will take the steps to protect their work, I think you'll find the average teenage girl wont be registering her beach holiday snaps with Plus registry and therefore may very well end up advertising porn.

    Think about that for a second and those of you who still think the theft of another persons property is OK then I'm genuinely glad I dont live in your street!

     

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  37.  
    identicon
    MK, May 1st, 2013 @ 6:36am

    Re: Re: Reverse image, Market rate, database - flawed arguements

    Right so if someone scans an image posts it online, someone else uses it, then it gets discovered the government has effectively set the rate at which the image is used.

    It also means that creators images can be used by companies that one would otherwise have ethical objections to.

     

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  38.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 6:37am

    Re: Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    two separate points you are conflating here.

     

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  39.  
    identicon
    BobC, May 1st, 2013 @ 6:41am

    What Fee?

    quote "will allow certain "authorised bodies" (probably collecting societies) to licence orphan works, collect the money, and save it until a copyright owner comes forward."

    And just how much money will they save until the copyright owner comes forward? £10, £100, £1,000 per image? I have exclusive images which have earnt me into the tens of thousands of pounds. I don't mind if the money they save has a lot of zeros in it but one of the bodies hoping to be a collecting society thinks that £7 is a good fee.

     

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  40.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 6:42am

    Re: Re: Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    Just to be ridiculous, should you pay the designer of your flatware every time its is used. It certainly has value beyond it moment of creation.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    J Webb, May 1st, 2013 @ 7:20am

    orphan works.

    The UK Government says photographers will be protected by this "diligent search". The trouble is this search is unlikely to work. If you make a few simple changes to an image it cannot be found by google image search.

    Worse still, a government approved official diligent search is unlikley to be anything like what a normal human being would do. If you google diligent search criteria you will see the EUs version. It boils down to asking various libraries and bodies. There is nothing in it about actually looking at images or image comparison software. Worse still, it may not even involve a search but simply putting an image on a website and asking the owner to come forward. That would result in every professional photographer world wide having to look through millions of images on every website approved to use orphan works.

    The comment about you've been paid and shouldn't expect to be paid twice does not understand how photographers work. I have just come back from several weeks work taking thousands of specialist aerial photographs. These cost me a four figure sum and is entirely self funded. Normally I put the photographs on my website and sell licences. It takes many years just to get back my expenses let alone make a profit.
    At the stroke of a pen the government has confiscated my life's work and my pension. I doubt the "market rate" will cover what I have spent on my 30 grand camera or what I spend on helicopters.

    For many pro photographers this will be the end. People who were previously making exports and paying tax will now be welfare dependant, all on the whim of the government. I will survive but am no longer doing self funded stock in the UK. Want a picture, pay me first!

     

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  42.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 7:41am

    Re: Re: Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    What two points, exactly?

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Tony Sleep (profile), May 1st, 2013 @ 8:10am

    More FUD

    This legislation has produced a torrent of FUD from uninformed commentators, and I'm sorry to say this article is no different.

    Like most, you have mistakenly concentrated on orphans as the issue. Diligent search may turn out to be a tickbox affair or quite onerous and slow, so self-limiting. From my own test sample, 6 out of a random batch of 10 professional images proved impossible to trace and 5 would probably qualify as orphans. With amateur material splattered around pseudonymous accounts, it is likely to be much higher.

    Photographers in UK have been vociferously arguing for the moral right to be identified since 1988, when the CD&PA witheld the right to bylines for most uses of photos.

    The past 7 years have been no different. Every submission to successive reviews and consultations has made the same point: it is idiotic and unjust to allow the use of works whose authors cannot be identified while those authors have no right to be identified.

    Whilst Government acknowledges the inarguable logic, it is not prepared to do anything about it because those lobbying for OW usage oppose it as "onerous". I have had the IPO tell me in a meeting that if that's what we want, to go away and write our own private Bill.

    Similarly IPO claims metadata is already protected by law. The 2003 Copyright & Related Regulations made it a criminal offence to remove or alter metadata - but you have to prove it was done with the intention of infringing copyright. Since you can't, the law is a chocolate teapot and the BBC and most newspapers strip metadata of thousands of images a day with complete impunity - then lobby for the right to use orphans.

    But far more potentially toxic is the ECL mechanism, which applies both to works of unknown AND KNOWN authorship. This simply stands copyright on its head. It breaks Berne and WIPO treaty obligations according to our legal advice, although IPO claim otherwise. It allows use without asking or price negotiation, and means that photographers will have to monitor everything published every day, if they want to claim whatever payment is offered, or opt out of the mechanism. And crucially, you lose the ability to say "no, I don't want that picture published" in some context you may not be comfortable with.

    It is impossible to say at present what the outcome will be since the regulations are being composed away from Parliamentary or public scrutiny. But make no mistake, the UK has set the scene for corporate monetisation and exploitation of everybody's images, without asking. Some of us are not exactly happy about all this, especially those of us who have had years of engagement with the issue, and have wasted hundreds of hours trying, and failing, to convince Government not to cave in to corporate lobbyists.

    This leguislation does not apply only to photos, but to illustrations, movies, articles, stories, books, scripts and so on. There is a particular problem with photos because there is a vast sea of the things waiting to be exploited, and no means of ensuring authorship is retained nor copying controlled.

    But otherwise thanks for the sneery dismissal.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Ben, May 1st, 2013 @ 8:11am

    lack of understanding

    The person who wrote this article has a severe lack of understanding of how the photography industry works. and an even less knowledge of how easily copyright can be removed from an image.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 8:21am

    Re: orphan works.

    Why do many photographers assume that publishers etc. will abuse this law and destroy their reputations. It will have no effect of existing piracy problems.

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    art guerrilla (profile), May 1st, 2013 @ 8:58am

    Re: Privacy

    yes, and don't forget about those damn phonebooks, talk about invasions of privacy: they list just about EVERYONE, AND their NAMES, *AND* their addresses, *AND* -get this- THEIR PHONE NUMBERS...
    can you believe that shit ! ! !

    c'mon kampers, i'm for protecting our privacy, but some people are only going to be satisfied until we each have our own planet that no one else knows about...

    i'm a loner and a private person, but even i get that we live as a SOCIETY, not 7 billion individual amish john wayne's, dependent upon nobody else...

    besides, IN GENERAL, it is the GUMMINT i am most afraid of and most determined to protect my privacy from, big corporations are a distant second, and individuals are not on my radar screen at all...

    art guerrilla
    aka ann archy
    eof

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:18am

    Re: Re: Privacy

    Ask John MacAfee how he feels about the "GUMMINT" having access to his photo metadata by default. If it's there, it's visible to EVERYONE. That includes photos of you that you didn't take, or choose to post.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:19am

    Re: Re: Privacy

    Awareness and transparency is best, but I prefer an opt-in system where the data are only included if I want them. Especially since a great many people still seem remarkably unaware that it even exists.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Neil, May 1st, 2013 @ 9:20am

    You don't say ?

     

    reply to this | link to this | view in thread ]

  50.  
    identicon
    Neil, May 1st, 2013 @ 9:24am

    You don't say ?

    So a new Act , which only requires people to use Google to carry out the Diligent Search, is not a problem for Google ? Oh why am I so cynical.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:28am

    Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    To date I've never had an issue with bloggers using my images but now the one's that don't ask and don't bother crediting are going to become a problem

    How have they now become a problem? If they were taking an image and using it illegally before, they're going to continue doing that. The new law only impacts legitimate users who seek to pay the copyright holder in good faith and can't find him or her. In the past they had to give up and find a different image. Now they can pay a "market rate" (admittedly a vague point) to be held in trust for the copyright holder should he or she appear and claim credit.

    Anyone who used your images without payment/credit before is unaffected by this. Their actions are were already illegal (outside fair use), and still are.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:31am

    Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    You are skipping over the step where the someone else has to prove that they made a diligent search to find the copyright holder before either of those things can happen. If you make it easy to trace your images back to you, then that can't likely happen.

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:34am

    Re: Re: Market rate

    What happens to the payment for orphaned work that is never claimed is a good point, and I agree with your concern that the money is going to straight into the pockets of the government.

    I agree with the point, but I'm more concerned that the money will go straight into the pockets of collection societies, where so much of it already goes never to be seen again.

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:46am

    Re: 'orphan works' whats the problem?

    Clearly using work that you dont have permission to use is wrong. Pond like amoeba can work that one out, the UK Government 'legitimising' this by charging a fee doesnt make it suddenly OK, cliched but true, two wrongs dont make a right.

    The problem with orphan works is there is absolutely no way to get permission. So presently they are either used without permission, or they are permanently unusable. What good is served for the public or any individual if these works stay locked up forever?

    If you find a car with the keys in it, would you ask around the street for a bit then when your 'diligent' search yielded no owner ID take it anyway and sell it on?

    A strained analogy at best, but ok. The closest comparison would be a car that has been abandoned in a public place. There's no info to identify the owner, or if there is, there is no record of an address or phone number for that owner. How do we serve the public need to clear this vehicle off the street? Are we obligated to let it sit there forever since no once except the missing owner has a right to move it? No. Eventually it will be declared abandoned and the city/county will tow it away, probably ultimately selling it at auction.

    Also many are missing the big picture, the biggest losers in all this will be your Mothers, wives, girlfriends and kids when their personal images suddenly start popping up in ads for chat lines, pornography or whatever.

    Anyone who is already willing to take such images and use them illegally is unaffected by this law. Such operators are unlikely to ever meet the bar of a "diligent search" to use such images legally (if the search was fruitless). Why would they bother? They have no shortage of material.

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:48am

    Re: What Fee?

    I have exclusive images which have earnt me into the tens of thousands of pounds.

    I suggest that you do not allow those images to become orphaned. That seems like it would be a bad decision on your part, for many reasons.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 9:48am

    Re: Reverse image, Market rate, database - flawed arguements

    What happens when someone scans an image from a book that has never been digitised and posts without any attribution?

    But that's what's meant by an orphaned work, one that hasn't been digitized.

     

    reply to this | link to this | view in thread ]

  57.  
    icon
    Copyright holder (profile), May 1st, 2013 @ 1:15pm

    What is desired is not always possible

    I don't think the UK Parliament understands the scope of enforcing and managing what a "diligent search" would mean, or are willing to fund such an enormous task. They may be able to get it right in ten years, but in the meantime, many thousands of artists will be unfairly infringed, financially and/or morally. Most all artists would not have the time or incentive to go after mere usage fees, or have time and treasure to register and track all the work of a lifetime.

    BTW, this law applies to every image creator worldwide, not just the UK. As a US citizen, are you going to find a UK lawyer to represent you? Or do you have the money to take a Berne Convention violation to court? Of course not.

    Until effective image identification mechanisms exist and are proven, this law is effectively abolishing copyright protection for all practical purposes. Try showing an image to the US Copyright Office and asking if it is registered. They couldn't tell you without a name attached to the image. You think the UK is going to crack that nut by July? Dream on. :-)

     

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  58.  
    identicon
    Anonymous Coward, May 1st, 2013 @ 2:30pm

    Re: 'orphan works' whats the problem?

    The problem is that works, letters photographs, drawing etc. related to historical event could still be under copyright. At an extreme this could include works from as early as 1823, very unlikely, bust just in the realms of possibilities; work by a 10 year old who lived to 130. Some works from 1863 onwards can definitely still be under copyright.
    This makes including source material in history projects risky for most of the past 200 years unless the copyright owner can be determines, as without this information it cannot be determined whether the material is still under copyright.

     

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  59.  
    icon
    Tony Sleep (profile), May 1st, 2013 @ 4:30pm

    Re: Re: orphan works.

    Because they do it already, in industrial quantities. As a member and moderator of the EPUK mailing list, we have 1,000 pro members, and the core business of the list is the daily, wholesale infringement practised by UK publishers, broadcasters and companies, including some of the biggest names. UK law is feeble. We have no concept of punitive damages as applies in the US to registered images. Consequently infringement is a sound business choice, since it mostly won't get found out and acted against.

    ERRA is not aimed at pro's. Most of us are doomed anyway. It is aimed at commercially exploiting the sea of amateur images, whether orphaned or not, without the inefficiency and inconvenience of having to ask the owner.

     

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  60.  
    identicon
    john r walker, May 1st, 2013 @ 10:16pm

    Re: What is desired is not always possible

    Too right. The costs of enforcing and managing would be higher than the benefit I.e it will not be done.

    There are already numerous examples of 'diligent' searches that can not find authors as well known as say John Berger.

    And some of you may have heard of the long running saga of SoundExchange and how it can't find well know performers that actually have a attorney- in these cases SoudExchange gets to keep all of the money

    And the idea that extended collective licensing would only apply in areas were there is a existing well supported collection society is very questionable, faking membership is not that hard to do: For example if a Collection society also has a right to collect fees for things like memory devises, that is a fee that is not attached to the use of a particular right-holders copyright, then that society can get large numbers of hopefull members that do not actually have individual copyrights worth collecting.

    For example the UKs Design and Artists Collection Society (DACS) has a gross collection of about 10 million, however just .9 million comes from people who have chosen to assign their individual Copyrights to DACS to manage.

     

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  61.  
    identicon
    john r walker, May 1st, 2013 @ 10:19pm

    Re: Re: What is desired is not always possible

    Just to be clear
    For example the UKs Design and Artists Collection Society (DACS) has a gross collection of about 10 million, however just 0.9 million comes from people who have chosen to assign their individual Copyrights to DACS to manage.

     

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  62.  
    identicon
    Anonymous Coward, May 2nd, 2013 @ 1:07am

    Re: Re: Re: orphan works.

    I would have thought that amateurs are less able to defend their copyright. If anything this requires payment to a collection agency or the copyright holder before using an image.
    Photographers could take advantage of this proposal by setting up a registration database, and making sure that it is well known, so that it becomes part of a diligent search.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    bycostello, May 2nd, 2013 @ 4:40am

    but...

    money held on account, but internet a big place, how will i ever know an image has been used?

     

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  64.  
    identicon
    Andy schmitt, May 2nd, 2013 @ 6:07am

    Re: Re: Re: Re: Reverse image, Market rate, database - flawed arguements

    That's a wonderful idea. So if I write a symphony, under commission, last year, anyone can STEAL it this year?
    All the images you created last year are free for all of us to steal this year?

     

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  65.  
    icon
    Tim Griffiths (profile), May 2nd, 2013 @ 6:42am

    Re: lack of understanding

    Enlighten us then. I don't expect to be too enlightening since you seem to think the copyright is something that resides within an image but I'm always willing to learn.

     

    reply to this | link to this | view in thread ]

  66.  
    identicon
    Dave, May 2nd, 2013 @ 10:33am

    Re: Privacy

    You only get long and lat if there's gps fitted to the camera

     

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  67.  
    identicon
    David, May 5th, 2013 @ 5:50am

    Its Basically legal theft

    the government have legalised themselves (or some big shot somewhere, I have no doubt a bloody Freemason friend) have figured out a way to thieve money from photographers by authorising themselves as "authoritive bodies" to take money for the photographers images without the photographer ever knowing!! ... It's damned outrageous is what it is!! Nothing more

    The only "authoritive body" to sell or give permission to use MY images is ME!!!

    This "diligent search" crap is completely that... Crap!... Made to sound good but in reality given to us purely as an excuse to "soften the blow" that we're being ripped off and thieved from by our own damn government!!

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Randell, May 8th, 2013 @ 10:13am

    Re: Supressing the Orphans

    And what's wrong with that, the photography market is saturated by images and photographers.
    Even digital images cost money to produce, so why shouldn't individuals who make a living from photography do what they can to protect their incomes.
    After all every other commercial market does exactly the same thing.

     

    reply to this | link to this | view in thread ]

  69.  
    identicon
    Willie Robb, May 10th, 2013 @ 3:36am

    Re: Re: Glad they fixed something that wasn't broken

    Thank you for presenting a rational, less vehement criticism of the proposed Enterprise and Regulatory Reform Act.

    As a commercial photographer I initially hit the roof when this proposal came to light. I've taken a few hours to research the subject today and have definitely come out with an altered opinion.

    I understand the collective urge to uncover culturally valuable works that are guarded for reasons of uncertain copyright. It's a no brainer. This is a completely separate issue though.

    The Act clearly jeopardises online imagery which jeopardises any (every!) photographer who chooses to circulate their work online. Not only that, it jeopardises anyone (everyone!) who chooses to circulate personal imagery via data stripping social media sites.

    I'm i the process of writing my MP a letter. i'm not going to ask for the Act to be scrapped. I'm only going to ask for appropriate refinement and clarification (diligent search?, protection of likeness etc. ).

    This issue is long overdue and requires consideration. The Enterprise and Regulatory Reform Act is not the solution though.

     

    reply to this | link to this | view in thread ]


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