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EU lurches behind copyright free-for-all landgrab

Using a picture without paying for it? That won't be a problem

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The European Parliament has agreed to bless draft proposals on orphan works that are similar to a compulsory purchase order with minimal compensation.

It's essentially an argument about using other people's stuff without their permission.

In May last year, the European Commission floated proposals to allow the "non-commercial" use of works for which the author can't immediately be found, so long as they did a quick Google search first.

The UK's Parliament shot down similar proposals in 2010. But the European Parliament yesterday announced its support for the EC's draft, which includes the Get Out of Jail Free search requirement. It only obliges the user to pay the creator if they show up, and punitive damages won't be available. The draft is awaiting formal approval.

Astonishingly, an artwork need only be declared an orphan in one member state to acquire orphan status throughout the EU. So an artwork may be declared to be an "orphan" in Romania after a not-so-diligent search - oops! - even though the author is on record as identifiable in France, the UK and Germany.

When the United States floated very similar ideas five years ago, even the freetards' pinup Professor Lawrence Lessig called foul. He described the "reasonably diligent search" standard "just mush".

"A 'diligent search' is impossible for all but the largest organisations," says Paul Ellis of photographer's rights group Stop43. "Google isn't a diligent search; photographers are putting their work behind https, which Google doesn't index, or are taking their work offline en masse as they desperately try to protect its value."

The problem here isn't old black-and-white photos, it's the repercussions for the commercial market largely composed of freelance photographers, illustrators and artists. Most artworks washing around the interwebs today are orphan works.

<img src="http://regmedia.co.uk/2012/07/04/european_union_flag.jpg" alt="European Union Flag" title="credit: Dimitar Nikolov" height=250 width=378>

In fact, huge media companies including Sky and the BBC systematically strip attribution from digital photographs they solicit from the public, and are orphan-creation machines on an industrial scale. Stop43 lucidly explains some of the problems here.

Once it's out there, it's out there

Although the EU exemption is technically limited to "non-commercial use", the publication of a commercially valuable piece of work by a non-commercial entity still represents a transaction lost, and destroys the market value for those creators. Once it's out there, it's out there. Wikipedia is nominally a non-profit publishing as a non-commercial entity, but still reaches hundreds of millions of users.

So this is dangerous territory for the Eurocrats, as access to markets is protected by international treaties and conventions, namely Berne and WIPO. Such exemptions are only permitted if they don't have deleterious knock-on effects for markets. So this could tie the EU down in litigation against its own citizens for years as it runs counter to international rules.

It's also legislation looking for a problem. Allow us to explain.

New technology has largely caught up with the problem caused by easy and casual distribution of images. Any image on the web can now be identified using image recognition technology.

What's lacking is a comprehensive database of owners that could underpin an easy trading marketplace. Given the right commercial incentives, freelancers and major image libraries such as Getty would want to opt in - indeed the idea is popular. But for major media companies, paying people is just another expense, so they prefer lobbying to building commercial and technical solutions.

And in the Eurocrats, big culture and media interests have found the perfect ally. For the bureaucrat or legislator, regulations and laws are the only hammer they have in the toolbox - they don't want to know about collaborative private sector arrangements, since such arrangements cut them out of the loop and lessen the opportunity for expansion and self-aggrandisement.

You'll note that freelance photographers, illustrators and graphic designers don't have powerful and well-paid lobbying organisations to fight their corner - and are increasingly being asked to surrender their rights to intermediaries under ever more onerous terms.

At some point, we have to remember who lays the golden eggs. It isn't librarians. ®

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