Dave Stevenson
Copyright is a complex issue, which is why it’s so galling that the Digital Economy Bill was passed by MPs with little understanding of it…
If there is a sight more depressing in modern political history than watching 40 Members of Parliament debate the Digital Economy Bill on its second reading in the House of Commons, I can’t think of it. The bill, a crucial bit of legislation with wide-ranging effects on digital content creators, users and distributors, was pushed through the second reading at the tail end of the day, with just 5% of its members present. At one point, just 15 MPs debated it. That made for a fair few empty seats in a house with capacity for 646 members.
The catalogue of mistakes, missteps and near-disasters associated with the Digital Economy Bill would be hilarious if it wasn’t going to either seriously impact creative professionals or occupy a great deal of the new coalition’s time as they repeal bits of it, as the Conservative Party has promised, despite helping vote it through. An enjoyable highlight of the third and final reading was watching Mark Todd, former Labour MP for South Derbyshire, making the most of his moment in the limelight by suggesting you didn’t need to notify your ISP if you moved house.
Importantly for the photographically minded, the bill came within a whisker of costing photographers serious money. Hoisted out at the last minute, section 43 set out a new government body for ‘orphan works’. An orphan, it was proposed, was a creative work whose author or copyright holder couldn’t be found. So, if you were a creative director who found a great image online but couldn’t trace the author, you could claim it and pay the government to use it instead. The problem – and it’s a problem that pervades the entire bill, more or less – was that the clause was worryingly non-specific about all kinds of minutiae. It didn’t specify how much of an effort you had to make to trace the creator of a photo. So a picture with its Exif data stripped out might excuse you from making serious enquiries, allowing lazy designers to head straight to the government-appointed body to license the photo. Perhaps an unresponsive user on Flickr might also count as reason enough to simply start using a photo commercially. It would have effectively turned Google Images into a massive stock library, controlled by a single government body. And, the Internet being simultaneously enormous and more multi-national than a Gap advert, photographers from other countries could potentially miss out on years’ worth of royalty payments before discovering their work had been declared an ‘orphan’ and was being used to sell something in Britain.
However, while IT-illiterate MPs wreaked merry havoc on other areas of the Internet, the ejection of clause 43 meant photography survived largely unscathed. That’s very surprising, as the average MP has the same grasp of copyright nuance as the average Page 3 model does of nuclear physics.
This was beautifully encapsulated in early April when the Labour Party ran a brilliantly destructive poster casting David Cameron as Gene Hunt from the TV programme Ashes to Ashes. When I say ‘brilliantly destructive’, of course, what I mean is ‘slapdash and lazy’. The Conservative Party instantly seized on the image of David Cameron as a go-anywhere, do-anything TV hero, and ran its own derivative poster using the same image, thereby proving my point that MPs are to copyright law what staplers are to gunpowder.
The picture they used was a publicity shot from Kudos, the production company that makes Ashes to Ashes. The terms and conditions attached to the image say magazine and newspaper editors are free to use it as long as they’re doing so in editorial that promotes the show in some way.
Doing the work that Labour Party should have done before David and Ed Miliband were allowed to enthusiastically gurn in front of it before the media, I established within five minutes that, yes, the shot was copyrighted by Kudos; no, you can’t use it for anything but promotion of Ashes to Ashes; and, no, neither the Labour Party nor the Conservative Party had approached Kudos to find out whether it was okay for them to use the image. Someone found it online, slapped David Cameron’s face on it and before anyone could blink it was a poster. The kicker? Kudos has instructed its lawyers to demand that both political parties cease using the poster.
Finding all this out took a herculean amount of effort and the kind of detective nous that would make Poirot blush with pride, so it’s understandable that lawmakers from both parties made such a fundamental mistake. Sorry, what I meant to say was that it took 10 minutes of searching online and five minutes more on the phone to confirm it.
Of course, political parties messing things up is what makes the world go around in an election month, but the near-calamity of the Digital Economy Bill for photographers, married to the main parties’ recent demonstrable lack of either knowledge or respect for existing copyright law, suggests they’re not the best people to be drafting laws that will affect copyright owners.
It’s not that the way work is protected doesn’t need considering. Google’s impressive books service (books.google.com) is under the consideration of a court in Manhattan, where the American Society of Media Photographers and others are suing because their work has been reproduced by Google. Whatever the outcome, clearer legislation would put an end to creative types needing to go to court when their rights were trampled on.
However, the onus is on photographers as well. Putting full-resolution, un-watermarked files on the Internet to share with your fans is like wandering around West Ham wearing an Arsenal shirt – you’re inviting trouble. The easier you make it for unscrupulous webmasters to pinch your work and pass it off as if they have the rights to it, the more it’s going to happen.
Protecting your work doesn’t mean the end of online galleries or Flickr, but it does mean making sure that your work is unmistakably yours, and that it’s all but useless at larger sizes. Politicians should be doing more to make sure they fully understand the laws on which they’re voting, but protecting your rights starts at home.
