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Photographers rue Mandy's copyright landgrab

'Orphan factory' benefits big business

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A little-reported corner of the sprawling Digital Economy Bill reduces photographers to serf status - and concerns are rippling into the wider community. Photographers say bad wording and technical ignorance are to blame for Clause 42, calling it a "luncheon voucher" for greedy publishers.

"The Bill contains no deterrent to the creation of orphans, no penalties for anonymising your work, no requirement for bylines. It is a luncheon voucher for industry hungry for free and cheap content," writes professional photographer Tony Sleep. He told us the bill legalises the machinery for creating bogus orphans works.

Photographers have many concerns, and say that two separate ideas have been munged together - extended licensing and orphan works. What the Mandybill does is formally regulate orphan works, copyright material where the author can't be found. It also grants special status, complete with immunity, to institutions to publish the works. One of which happens to be the BBC, suggesting it isn't simply museums or libraries who'll be the beneficiaries; the BBC is a commercial organisation with £1bn in commercial income last year.

One problem photographers see is that most computer software strips the metadata from digital images, creating an instant "orphan" work.

"Orphans being mass manufactured. The author becomes invisible; so copies on web just belong to nobody," says Sleep.

"The original reason for orphan works legislation is reasonable, and nobody argues with the need of museums and maybe educational to access work they can't get to," Sleep told us. "But what we've got appears to have the heavy duty interests of big publishing written all over it.

"It's a very dangerous intervention into an ecology that's already toxic."

What's yours is mine

The extended licensing means exclusive rights holders can give up those rights for a collective scheme. It's voluntary, Sleep acknowledges, and people can opt-out.

Naturally, the organisation that already administers rights for visual images has welcomed the move. DACS, the UK collection society responsible for distributing money, could enjoy a much wider role.

But Sleep fears mission creep, with powerful publishers such as News International, or digital aggregators like Google standing to gain hugely from the legislation, at the expense of the creators. No one has pushed harder for the change than Google.

Indeed, it isn't hard to envisage Google becoming a kind of New Age one-stop collecting society - one that sets its own rates (because of its immense market clout) and one that is beyond the law. Most collection societies today are member-owned nonprofits and subject to close state and EU scrutiny.

A year ago we warned that the Google Books settlement provided a template for such an organisation. Now that Google is writing UK legislation, it looks much closer. It's these latter concerns that make music and film creators anxious. "Civil servants didn't realise Clause 42 said what it said," one music business source told us.

The Lords are due to chew through the final part of the Mandybill on Monday. But Sleep isn't optimistic.

"We've been consulted for six years, and still they ignore us," he said.

Read more here and here, and the IPO's take here. ®

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