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.
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:
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.
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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