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British Library defends flogging of orphaned artwork

MPs told of collateral damage to photographers

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MPs heard a spirited debate about digital rights this week – including the digital rights you might or might not have as an amateur creator.

Big media companies would like the freedom to use artwork they find on the web without having to worry about lawsuits or negotiating market rates with creators. The web is awash with unattributed "orphan works" – and thanks to cheaper technology, social networks and self-publishing, there’s more being published than at any time in history.

There’s also a strong case for releasing enormous amounts of cultural work that doesn’t have a traceable author, and institutions such as the British Library would like to release this and commercialise it. These are also, confusingly, called "orphan works".

The problem is, how can you release these cultural works without imperilling the professional market or the rights of amateurs whose work can end up as valuable front page commodity?

The British Library’s Ben White went head-to-head with Paul Ellis of the photographers' insurgency group Stop43 – formed to fight orphan works legislation in the Digital Economy Act last year. It was feisty stuff and neither would back down.

While the snappers had carefully thought about the cultural problem – and had a proposal to encompass it – the British Library’s White had no time for the photographers. He favours compulsory extended licensing – which confiscates their digital copying rights – for the greater good. It works in Canada and Japan, he says, and if there are problems with it, they’re not apparent.

Ellis pitched the proposed National Cultural Archive, which would be an online marketplace that you can upload any picture to and Getty’s PicScout image recognition software will find similar artwork that's available – be it royalty-free or with a price tag. This is useful if you have an image of unknown origin, or a picture you can't use for copyright reasons, but would be happy with something similar.

Ellis likened the system to the proposed Digital Copyright Exchange marketplace, but described it as “rather more ambitious". The copyright exchange was put forward by Ian Hargreaves, who led the so-called Google Review into intellectual property.

“Everyone is now a photographer. Those of us with Facebook accounts are published photographers," said Ellis.

"Amateurs can match professionals... a photograph you take that appears on a front page has great commercial value – so why should you not participate in that value?”

The British Library sits on a lot of great material and has a powerful moral case for making its archives more widely available: that is its mission.

But it doesn’t seem to be able come up with an argument that avoids making other people worse off as collateral damage; worse, it seems oblivious to those consequences. This makes the library look extremely arrogant, and it projects a tremendous sense of entitlement. “We can see how orphans could harm anyone,” they argue, “but that’s not our problem.”

A good litmus test of any claim of digital rights is whether its success causes avoidable collateral damage to other groups. Should one group lose just so another can gain? MPs were a bit more aware of the complexities of the debate, after this week, and quite a bit better informed.

In the meantime it seems bizarre that Facebook and the BBC are able to strip metadata from photographs that are uploaded to the site en masse. They know the authorship of almost everything uploaded to the site – but then throw that away. They’re “orphan creators” on an industrial scale.

And it's fascinating to see big publishers, who complain long and hard about internet piracy, suddenly twig the financial benefits of rolling over copyright. Yarr! ®

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