Sunday 8 July 2012

Soapbox: Proposed UK Copyright Reform of 'Orphaned Works'

This isn't the promised update to my lettering guide -- which will be along in a few days -- but, instead, I'd like to talk about a proposed change to UK copyright law.

I'm not a lawyer, and I'm certainly not an expert on copyright, so I would urge you to read the government's consultation document (406Kb PDF file here) and form your own opinion. The document, in so far as I understand it, raises a number of areas of concern:

Foremost, it proposes to turn the legal entitlement to copyright protection from an automatic right to one that will require you to opt in; the default assumption under this proposal is that you are happy to have your work, if declared an 'orphan' work, exploited and licensed by a third party body -- a collecting society. Note that the proposal does not require you to be a member of a collecting society (which could very well be a private company) in order for that society to deal with your work.

There is clearly a massive logical flaw in this at its most fundamental level: if you make yourself (and, thus, your work) known to the collecting society, how can it be an orphaned work? By definition, the creator will have to be either unknown or uncontactable for the work to be declared an 'orphaned' one, but since when did the obscurity of work deny it legal protection?

The proposed reform claims to have safeguards built in, but these proceed from similarly flawed assumptions. It will, for example, be illegal to strip the metadata from a file, but once an image, or a design, or any other piece of creative work, goes 'viral' it will pass through so many hands that establishing at what point, or by whom, the metadata was removed would be virtually impossible.

Here's a hypothetical example: I put a piece of artwork up on my deviantArt site, which gets about 10 hits a day. It's a caricature of a celebrity I did for my own amusement, say. Someone working for a blog or site about celebrities right clicks that image, saves it down to their hard drive, and then re-uploads it to their blog, cropping it so that my signature is removed and failing to attribute it. I'm none the wiser -- there's no spike in traffic to my dA page, and I wouldn't see it on the blog, since it's not the sort of thing I read. The person who uploaded the image to the new location does a couple of dozen of these a day and doesn't keep a record of the sources.*

That image is now receiving thousands of times more views as an unattributed, 'orphaned' image than it will ever receive in its original location, with its proper attribution.

Enter the collecting society for cartoonists (remember that this could be a private company, and the proposal suggests that there could be more than one in each field; we're not talking about some cosy little creators' guild set-up, here) who declare it an orphaned work, license it to a clothing company for a fee and keep the money. My artwork is now on tens of thousands of t-shirts and, unless I actually see one, then I will be none the wiser.

And, let's say I do see one. There may be multiple collecting societies -- how do I find out which one has licensed my work? What if I am unhappy with the fee they have negotiated? Are they going to force the licensee to add my signature to all future printings of the t-shirt? What if I'm unhappy with the context in which my artwork is being used? Will the collecting society revoke the license? Compensate me for the inappropriate use of my work?

Remember also that this collecting society will be authorised to act on my behalf without my consent. It will be for me to expressly tell the society (keeping in mind that there may be multiple societies acting within the same field) that I do not wish them to do so.

But, and here's where we hit that problem with logic again, how will the collecting society know that the orphaned work is by me, and therefore not to be used in this manner? If they knew it was by me, it wouldn't be orphaned in the first place.

The proposal says that, amongst the safeguards, there will be a register of orphaned works.

Again, this demonstrates a complete lack of logical thought or understanding of the nature of what they're proposing: as a creator, are you supposed to make regular checks of this register to see if your work has been mistakenly entered onto it? I imagine that the register would quickly become quite lengthy. Plus, of course, the work won't be attributed to you and you'll have no way of knowing how it's been described.

What this proposal appears to do is turn the entire internet into one massive stock library for larger companies, giving them an easy point of contact (the collecting societies) to negotiate licenses to use content they don't own. Better yet, the collecting societies get to do this without your knowledge and then keep the money.

Why should there be an automatic assumption that any and all works are available for commercial exploitation unless explicitly stated otherwise? UK copyright law has, quite correctly, assigned all intellectual rights to a piece of work to its creator and they remain there unless the party wishing to exploit those rights can produce a document explicitly signing them over. 

Just because I create something and put it on display does not mean that I want to sell it, and if a third party can't elicit my express permission to do so, for whatever reason, then that third party should consider the work not for sale.

This government is prepared to aggressively defend the intellectual property rights of 'big content', of the record labels and movie companies, enacting legislation forcing ISPs to keep detailed records of the data usage of their customers, introducing punishment by association**, but is happy to allow the rights of smaller creators to be drastically curtailed.

This government has proven itself remarkably sensitive to public opinion on some issue (although not the NHS, sadly) so I would ask you to consider signing the online petition I've set up, and to share the link (and the reasons for signing) with as many people as possible.

You can sign the petition here…

Thank you for reading. Normal service will be resumed shortly.

(For a more in-depth look at this proposal, please read this blog entry, brought to my attention by John Freeman.)

*This part is not hypothetical, it's happened to me and, once, I did it to someone else in error. Fortunately, they contacted me directly and I was able to correct the mistake and attribute the work properly.

**By threatening disconnection of an entire household's internet access based solely on the actions of one member of that household.