The newly passed UK Enterprise and Regulatory Reform Act has been the subject of much debate and even outrage in the photographic community.
The Act contains changes to UK copyright law, which permits the use of images where metadata – including information about the author of the work – is missing. These works are called ‘orphan works’.
Most images on the internet today are images such as these, which have metadata missing, and as a result millions of photographs (and photographers) are affected by this scheme.
The implications of this Act are understandably of concern to photographers whose primary objective is to ensure their work is legally protected. But how concerned do you really need to be about these changes? Are your images really at risk of being used without your permission and with no compensation?
We take a look at the most popular myths surrounding the UK Enterprise and Regulatory Reform Act and debunk them once and for all.
1. Anyone can use a photo they have found on the internet as an ‘orphan’ if they can’t find the copyright owner after a search.
Debunked: A licence must be obtained in order to use a work as an ‘orphan’. In order for this to happen, the individual or company wishing to use the work must undertake a ‘diligent search’, where attempts to find and approach the work’s owner must be made. If this search is unsuccessful, this then needs to be verified and assessed by an independent body, which will be appointed by the Government. If the body is satisfied a sufficient search has taken place, only then is work permitted to be used. The applicant will then be required to pay a licence fee to use the work.
2. I won’t be paid if my image is used under the orphan works scheme and anyone can use my work free of charge.
Debunked: When the applicant has been granted permission by the Government-appointed body to use an orphan work, they will be required to pay a licence fee. This money is held by the independent body, and can be claimed by the rights holder if they come forward at a later date.
3. My right to copyright is removed when I post my photos online.
Debunked: Your copyright is not removed when you post your images online.
4. My images will have their metadata stripped and they will be licensed in bulk as orphans under the Extended Collective Licensing provision.
Debunked: The Intellectual Property Office states: “The Orphan Works scheme and Extended Collective Licensing (ECL) are separate and the orphan works scheme is about licensing of individual works.
The government has no power to impose ECL on a sector. The safeguards included in the scheme mean that ECL is only liked to be an option where there is strong support for collective licensing. Any rights holder worried about how their work could be used under an ECL scheme could opt out at any time.
It is unlikely that ECL will be an option for photography where there is a strong tradition of direct licensing: there is no collecting society for photographers in the UK, so no application for ECL is feasible at present.”
5. Anyone can use my photos without my permission.
Debunked: If the applicant who wishes to use an orphan work hasn’t undertaken a diligent search in the eyes of the independent body, a licence will not be issued.
If the photograph is not genuinely orphan, the rights-holder should be found and their permission to use the image requested.
6. A company can take my work and sub-license it without my knowledge, approval or receipt of payment.
Debunked: The licences to use an orphan work will not allow sub-licensing.
7. The stripping of metadata creates an orphan work.
Debunked: The absence or removal of metadata does not make work ‘orphan’ or allow its use under the orphan works scheme.
8. I have to register my photos to claim copyright.
Debunked: Copyright remains automatic. There’s no need to register your work for it to be protected by copyright.
9. The UK Enterprise and Regulatory Reform Act is unprecedented and there has been nothing like it elsewhere in the world.
Debunked: The Orphan Works powers in the UK are based on what happened in Canada, which has been licensing orphan works since 1990.
How do you feel about the Act? Will you continue to post your photos online?
Source: Intellectual Property Office