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Stealing photographs for fun and profit – snappers respond

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Resale of stolen goods not equivalent to 'adopting orphans'

The Orphans Project questionnaire refers to people publishing or re-using someone else's work as the "creators" - not the original artist. Would life be easier, if they didn't have to ask the owner?

"Creators have few difficulties," Stop43 points out in its response.

"Thanks to Berne, as original creators we own the rights in the original works that we create. Those so-called 'creators' whose derivative works consist of the recycled IP of others, aka 'mashups', appear to us mostly to operate in general ignorance of copyright law, and often appear to have little respect for the creators of the original works they use, for those original creators' legal rights, and for those original creators' economic interests. They also appear to have few difficulties in obtaining rights or clearances in pre-existing works, because they generally tend to ignore them or treat them with contempt."

Stop43 continues: "Aggregators, curators, marketers and resellers, of course, find the current legal situation in general much too complex and costly. They would always prefer to have unfettered freedom to use and profit from the IP of others."

The questionnaire goes on to suggest proposals including giving publishers full exemption from liability, limitation from damages, and various registration schemes.

Stop43 proposes an interesting eBay-style trading market where sellers (creators) could meet buyers (people who want to their use their stuff) - privately funded. This requires commmercial users to register the stuff they use - with a voluntary obligation to register works by owners. Anything not identifiable can be used for cultural, not commercial purposes - but only for cultural purposes. If somebody wants to make money from an orphan work, they should jolly well share the rewards with the creator. This does not seem unreasonable.

The snappers' group also strongly opposes any new licensing authority.

"We see this as little more than a bureaucratic gravy-train," Stop43 points out, citing a history of collective agencies becoming captive to big business interests.

The questionnaire then suggests removing amateur user-generated material from the protection of copyright. The photographers point out that "many of the iconic news images of recent years (eg, the Concorde crash, the 7/7 London bombs, the Boxing Day tsunami) were shot by amateurs.

"Amateurs can rival professionals for artistic merit and technical execution, and as these images exemplify, for economic value to media organisations. There is no valid rationale to treating such images separately from traditional photographic images or the work of professionals and masters," says the group.

"Creators did not cause the orphan works problem and the solution does not lie in stripping creators of their rights," Stop43 concludes.

One issue unresolved is what constitutes an orphan. How hard must you look, and how quickly do you give up looking, for a work to be considered an orphan? Big Media would answer those as "not very hard" and "very quickly" – but if they were required to contribute data on works they use to a registry, the problem would cease to be a problem.

Without the backing of big businesses, photographers (both professional and amateur) and illustrators find themselves in the trench alone, here. There's no RIAA or IFPI to fight the corner of the individual creator, and the copyright academics are no help - few people have a poorer grasp of what copyright means in practice - especially if you're a "sole trader" or tiny business. Copyright academia now combines two ugly intellectual prejudices – "property is theft", and "authorship is theft". The Orphans Project is a nasty reminder of both. ®

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