I like taking photos. It’s probable that you, whoever you are, also take photos, either with a camera or cell phone. It’s just as probable that you upload them to the internet. To Flickr, Facebook, Picasa, Instagram and other photo sharing sites. We all own our own photos. If your photo was taken after 1978, it’s automatically copyrighted for as long as you live and then a further 70 years after they put you in the ground. Which, incidentally, I hope is many, many years from now. So, in summary, the photos we take are our property. Except, they’re potentially not. Not anymore. Not in the UK.
I took the photo below, and shared it on Flickr. Now I’m sharing it on my blog. Want to use it? Fine. I’m pretty easy going. All my photos are licensed on Creative Commons, and anyone can use my photos for non-commercial purposes for free. Want to use it for a commercial purpose? I’ll probably be ok with that. Get in touch, and we’ll agree a price, providing I’m happy with who is using it and how. Actually, the image above perhaps isn’t the best example, because it’s a photo of artwork by Damian Hirst, and he might have copyright issues if I sold it commercially!
What if someone uses my image for commercial purposes without telling me? Well, that’s called theft and I will seek recompense, and plenty of it. Far more recompense than had they just asked in the first place. But here’s the problem. There’s every chance that in future I might find myself unable to negotiate or demand a fee or damages. I may not even be able to get them to stop using the image. Why? Because, under the UK Enterprise and Regulatory Reform Act, they may well be using the image legally. Yes, it is still my image, yes it is still in copyright. But no, copyright doesn’t actually mean anything.
Here’s the issue*. Random people out there in the world do have a habit of using images that don’t belong to them. Let’s say a chap called John Doe decides to start a blog. He writes a half dozen posts, and then gives up. In one of those posts he used your photo. Can John Doe be contacted? Nope, he used a pseudonym and never did get round to putting contact info on his blog. Anyway, along comes some ad company, and they see that photo on his blog. They like it. They try to contact him and, of course, fail. At that point, the photo is considered ‘orphaned’. And now that it’s orphaned, the ad company can use it. They have to pay a fee to a Collective Licensing Organisation. But you, the owner of the photo, get nothing.
Your photos can become orphaned almost instantly. The moment you upload them to the internet, they are exposed. If one is used under the new Act, then it’s your job to find that out and to claim a fee from the Collective Licensing body. And as I understand it, they’ll tell you what you get paid. And if you don’t like it, then tough. And if you don’t want it used in the way it is being used, there’s a big question mark over whether you can put a stop to it. This is a genuine and serious issue. I know for a fact that dozens of my images have been used across dozens of sites on the internet. These are just the ones I’ve found or come across and therefore know about. Some of them credit me, many don’t. Some asked my permission (technically unnecessary), many didn’t.
As a photographer, this irks me, to put it mildly, on three main counts. Firstly, as a point of principal. If the photo isn’t yours and can’t be purchased from the owner, then don’t use it. If it’s a digital image, then it’s clearly been taken after 1978 and is therefore still in copyright – fact. Secondly, I may well not want a particular organisation to use any of my photos. For example, if the English Defence League, or other extremist group, found a photo of a flag that I’ve taken and decided they liked it, I would reject their offer. Thirdly, every time an orphaned photo is bought through Collective Licensing, potentially two photographers are robbed of their rightful dues. The guy or gal who took the photo. And the photographer of an alternative image that would otherwise have been purchased.
*There are actually many issues. I’m not going to pretend I’ve gone into all of them, let alone understand all of them. I still have many unanswered questions myself. Many of those questions, it appears, currently have no answers. Some parts of the Enterprise and Regulatory Reform Act are poorly defined, and we will have to wait and see how it works. How will this work internationally? If an orphaned image belongs to an American, for example? How on earth would any one know the nationality of a photographer? There are positive benefits to the bill too, though, in that cultural entities such as museums and libraries need legislation in order to allow them to preserve important photos.
But it seems to me to be another shoddy piece of legislation, part of the Digital Economy Act, that’s been rashly thought up by people with little concern for their constituents and maximum concern for big business. It’s been rushed through parliament without proper debate and it’s just yet another sorry chapter of government and business not understanding what the digital age is or means. There’s plenty of research you can do if you’re interested. There is an organised protest group called Stop 43 (Clause 43 is the relevant part of the Act), and articles on the BBC and New Statesman. The Act has been referred to as the Instagram Act.
I do wonder how the photo above stands in copyright law. Of course, I did not take it. That’s me in the photo. It was taken prior to 1978. But I scanned it, with permission, and processed it through Photoshop, creating a new and discernibly different image.