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UK's planned copyright landgrab will spark US litigation 'firestorm'

Sneak peep inside photographers' letter to Minister

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Exclusive The UK faces a "firestorm" of international litigation if the government's copyright land-grab goes ahead, American artists and photographers have warned.

In a letter to business minister Vince Cable seen by The Register, six groups representing US photographers and graphic artists say proposals in the Business and Enterprise Reform Bill, currently going through Parliament, breach international law and will have costly consequences for UK plc.

The measures encourage gathering creative works into "extended collective licensing" systems, which grant others the rights to use the stockpiled material. Crucially, this could happen without the original creators' consent nor any royalty paid to them, unless they manage to opt out of the scheme.

The draft law is intended to ease the reuse of misleadingly named "orphan works" - misleading because most orphan works are actually recent digital images that have been stripped of their attribution, rather than old black-and-white snaps festering in library vaults*.

The UK measures are being rushed through before Europe-wide orphan works proposals are incorporated into UK law. The two differ in a very important way: Europe's orphan works legislation forbids commercial exploitation of private property - but the UK's doesn't.

Millions of US-owed visual works would be swept up into the UK extended-collective-licensing scheme and exploited by UK companies, even though they're not UK property. And this puts the UK in breach of international law, the US groups point out.

It's as if Britain decided it owned Disney, and let anybody pirate the company's DVDs while it keeps the proceeds. The wheeze was hatched by the Intellectual Property Office (IPO), the old Patent Office, which is part of Cable's Department for Business, Innovation and Skills.

Grabbing someone else's property in a way that prejudices the rights owner's economic interest is forbidden under the Berne Convention.

"If the use of foreign works in the UK is directly or indirectly permitted by this Bill, a firestorm of international litigation will immediately ensue, and any persons, businesses or institutions making use of foreign works under this Bill would be well served to expect to be promptly sued by the copyright holders, incurring significant liability for copyright infringement," the US snappers point out to Cable in the letter.

"Our members are likely to aggressively pursue legal remedies for any copyright infringements resulting from this Bill."

This is no idle threat. If you're an American photographer or illustrator you're not obliged to register your work with the US Copyright Office - copyright is recognised under the Berne Convention as an automatic right.

But registering gives you powerful legal muscle: your legal challenge is paid for. You can get injunctive relief, and also claim statutory damages of up to $150,000 per infringement. It's a powerful deterrent to the kind of casual infringement UK publishers frequently engage in. For example, The Daily Mail's website is notorious for grabbing images found on the internet and using them without permission - even incorrectly attributing them, eg, "© Twitter". A deluge of litigation from graphic artists, illustrators, photographers and their agencies is therefore highly likely.

Such litigation is bound to lead to higher costs for British businesses as they rush to indemnify themselves. Amazingly, however, no economic impact assessment of the potential damage to UK plc has been conducted by the IPO. The agency believes - contrary to the legal advice it has received - that its proposals comply with international law.

The latest measures are the brainchild of the most important copyright bureaucrat in the UK, the IPO's Copyright and IP Enforcement Director Ed Quilty. The career civil servant, who previously worked in science policy and arms exports, joined the IPO in 2008.

His previous proposals include making all copyright opt-in (which is illegal under Berne) and the 2010 orphan-work legislation that had been tacked on to the Digital Economy Act but removed from the final bill.

An influential group of parliamentarians investigating the rogue agency recently stopped short of disbanding the IPO altogether - but called for greater ministerial oversight, better economics, and reminded the bureaucrats that intellectual property is, among many other things, a fundamental property right that can't be wished away.

Whether you're amateur or professional, a Picasso or a scrawler, it's your stuff. This could be an expensive way for Whitehall's finest to learn that lesson.

The letter to Cable is signed by leaders of the American Society of Media Photographers, the Professional Photographers of America, the National Press Photographers Association, the Picture Archive Council of America, the American Photographic Artists and the Graphic Artists Guild. ®

Bootnote

*The phrase "orphan work" can refer to any piece of copyrighted material that, for whatever reason, is missing information about who owns it. In theory, this covers work that deserves to be reused but its owner cannot be traced; in practice, it means just about every photograph or image on the internet, for example.

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