The UK's copyright landgrab: The FAQ
Everything you wanted to know about the Instagram Act, but were afraid to ask
Analysis The UK has passed legislation to permit the mass use of copyright-protected material without the owner's permission. This applies to any copyrighted work - not just images - where identifying information is missing.
The specifics aren't yet known - they'll come later in the year, in the form of secondary legislation called a "statutory instrument"*.
Thousands of statutory instruments are passed every year, and allow Parliament to approve or reject changes without having to pass a new Act. But some of these instruments can be used to make major changes to the primary legislation - such as their parent Act - with or without Parliamentary scrutiny. These instruments, known as Henry VIII clauses**, are frowned upon by constitutional experts.
Every day, more creative works are uploaded to the internet than were produced in the entire history of mankind's analogue creativity, so this is a very live issue for billions of internet users. It significantly affects your digital rights and extends the power of ministers over UK citizens' property.
Q. How did it happen? Why didn't I know about this?
The UK government machinery attempted something similar in 2010, by inserting two clauses - 17 and 42 - into the Digital Economy Bill during the dying days of the last Labour administration. Clause 42 proposed, for example, that "[t]he Secretary of State may by regulations provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner". But this resulted in a furious public backlash and the clauses were dropped.
The proposal was then smuggled into Ian Hargreaves' review of intellectual property (IP) published in 2011 - the so-called "Google Review" - but you had to look hard to find it because it wasn't mentioned in the Executive Summary. The government announced the measures last July (Reg report) and clauses were inserted into a giant, garbage truck of a bill called the Enterprise and Regulatory Reform (ERR) Bill, which covers everything from agricultural wages to planning regulations. This time the dog didn't bark.
Q. Is this as big as it sounds? How does this change things?
A former chairman of the Newspaper Licensing Agency, Dominic Young explains in this blog post: "The new powers don’t technically remove copyright from the work, but they certainly remove it from the copyright owner. The exclusive right to decide who copies and on what terms has been abolished for the owner of the work."
Why is this important? "The fact that someone wants to use your work doesn’t mean you have to let them – and it used to be your exclusive right to decide. If you have a desire to keep work private and restricted, or only licensed on carefully controlled terms, you can, and many do."
Previously, people who used your work without your permission faced infringement damages. This reverses the burden of responsibilities. You, as the creator, have to opt out, if you want to retain your rights.
The ERR clauses apply to any copyright work, but it is people who create and post images (photographers and illustrators) who are naturally most upset. Identifying a sound recording is comparatively easy, but not foolproof, thanks to technology used in services like Shazam.
Identifying images should be just as easy, as the technology has advanced rapidly in recent years; just look at Facebook's face scanning, for example. So there shouldn't be any "unidentifiable" images created in the modern era bobbing about ... but the systems to find the owners aren't in place yet, although they are being built. Meanwhile, private companies and large media corporations call on the public to send in their snaps and then strip away all the identifying metadata.
Q. What exactly does the legislation say? How would it work?
It's essentially in two parts. One gives the Minister the power to sanction agencies to license a work for commercial use, without the owner's permission. This is called "Extended Collective Licensing". The other half defines what can be licensed, and discusses what it misleadingly calls "Orphan Works". Remember that almost every image on the internet today is an "orphan work". The new law is designed to allow somebody to use the work commercially after they've conducted a "diligent search".
Q. What's a diligent search?
Good question, because this isn't defined. The clauses specify a new quango may inspect diligent searches being carried out - but nothing defines its role.
A diligent search is not just a quick Google. You can't infer who owns an image from the context - just as you can't infer who owns a car from where it's parked. Photographers' groups point out that the tech required to do a diligent search doesn't exist today. And only the biggest companies can afford to do anything resembling a real diligent search and trawl through picture collections. As we pointed out last year:
A new agency, let's call it “Bastard Ltd” could apply to become a licensing authority for a given class of work, for example, cartoons or poems. It could then license any work in that class without the rightsholder's permission, for any fee it cares to set, so long as it was "significantly representative of rights holders affected by the scheme". Amazingly, Bastard Ltd would have no obligation to return revenue gained to the rightsholder, if it couldn't find them. The obligation would fall upon the rightsholder to keep the agency updated at all times - the reverse of the law today. The Government calls the proposals 'voluntary', but it's actually anything but: if you don't like it, you too will have to opt out.
The law does not rule out sub-licensing. If you thought SEO was bad, stand by for an entire new industry of content scrapers.
Q. Are overseas works safe?
Q. Can I stop this?
Well, it's too late now to stop the ERR Bill being passed.
The immediate action against the bill is likely to come through the judicial system: perhaps via a Judicial Review (already threatened), High Court legal challenges, or eventually an appeal to the European Court of Human Rights. Remember: your creator rights are human rights. We'll elaborate in a moment … but this may delay enactment by months, or even years.
And a law can kick around the statute book without being enacted, as civil servants have demonstrated: much of the 2010 Digital Economy Act has not been put into practice after three years. And remember, the ERR clauses are merely an "enabler" - they require statutory instruments to be approved so it can be put into practice. Many years can elapse before instruments follow the paving legislation, in some cases, as long as a decade.
If public pressure is sufficient, and lawmakers understand the implications, they may decide it is wise to kick something as contentious as a property landgrab into the long grass. That's not quite satisfactory, perhaps, since nothing short of a full repeal can protect your rights. But politicians actually have an escape route.
The EU has a ready-made orphan works replacement which outlaws commercial use that member states must implement before October 2014. The EU allows member states to keep any existing national orphan works schemes in place, which explains the haste and subterfuge into bundling the copyright land grab through. But it allows a get-out for red-faced politicians; the government may wish to incorporate the EU law and abolish our clumsy copyright land grab in one go.
Q. What's the problem here? What's the justification?
Museums and libraries sit on collections of old photographs and historical, and the cultural sector wants that digitised and made available. Many people would like to see access to these increased. Many old photos are in a physical form that require digitisation. These are the 'genuine' orphan works, if you like, if they do not have identifying information.
The objection is that most photographs and illustrations bouncing around the internet are also orphans - they don't have identifying information, it has been stripped, and those "Shazams for images" don't yet exist. While there are useful image lookup services such as Getty PicScout, they simply don't have access to sufficient quantities of owner info on lots of photos. Moreover, ownership information cannot be inferred from an image's context, any more than you can accurately guess who owns a car from where it's parked.
So diligent search is very tricky indeed. This means there's a genuine commercial impact on professionals, semi-pros, and even amateurs, whose work can be used in advertising or by newspapers without their permission - and without compensation.
Q. Is there a better way of doing this?
There are many ways of doing tackling the cultural works issue, and a lot of these don't imperil present and future commerce, or assault our fundamental individual rights.
Other measures involve building self-funding non-profit registries and stronger penalties for data-stripping, otherwise known as the industrial-scale creation of orphans. Here's one combination of those ideas.
The internet automates, and therefore lowers, the cost of small transactions, so it's ideal for building image-trading exchanges: these exchanges are in fact being built. In addition, “orphan creation” is already illegal, it just isn't enforced. Obliging the worst data-strippers (who range from Flickr and Twitter, to huge publishers such as Associated Newspapers and the BBC) to comply was endorsed by Richard Hooper in his report for the Government last year.
Recognising that the stripping of metadata on a commercial scale can already constitute a criminal offence as well as a civil infringement, we call on all organisations that regularly use and resize pictures, such as broadcasters and newspapers, to agree a voluntary code of practice in which they publicly commit to: (1) end the practice of stripping metadata from images and (2) refuse to use images for which there is no metadata attached.
Q. So who benefits from the copyright land grab?
The UK's legislation will be the first in the world to permit mass commercial use of digital images without the owner's permission. The winners fall into three categories.
Large newspaper groups and media companies with a big online presence (e.g., the BBC, Sky, the Daily Mail's parent group Associated Newspapers, for example) will be popping the champagne corks. Many of these already act illegally today by stripping the identifying information from images they use.
The Big Culture sector has also lobbied hard to weaken creators' rights, with the former chief executive of the British Library, Lynne Brindley, and the library's head of intellectual property, Ben White, leading the charge. The traditional public service role of a library is now quite passé; with their big archives, they can see the opportunity to be major media companies in their own right. Big Culture regards your rights as collateral damage.
The third group is large "internet advertising companies" - as WPP's Sir Martin Sorrell calls Silicon Valley web giants like Facebook, Google and Twitter. Google lobbied hard to weaken creators' rights in the UK, and David Cameron cited a non-existent quote from Google when he announced Hargreaves' "Google Review" in 2010. If individuals lose the ability to keep the proceeds of their trade, value is captured by big players upstream; like Google.
"We want Big Tech to win," the government is saying, "and Big Tech tells us that you have to lose."
Q. But 'making copyright modern' sounds cool. What's the problem with that?
If we were to abolish copyright overnight, there'd be a hell of a party. Then the hangover would start. People would stop disseminating their own stuff right away, they'd withdraw it from view. Businesses would follow, because you can't really trade without protecting your goods from a rip-off merchant who sets up shop next door to you. Because copyright is an enabler for markets, the markets would disappear. A bleak public domain consisting of amateur doodles and contributions from the occasional, big-hearted fool, would eclipse creative markets.
That's the nub of the argument against weakening IP: you have to weigh the loss of things that haven't been made, with access to things already made. It's like eating seed corn; it's tasty and feels great for about five minutes. Then you have no seed corn to grow anything from.
Q. You go on about a property right. But intellectual property isn't real property, is it?
It doesn't really matter what we would like IP to be, we have to deal with the world as it is. European courts recognise copyright as a property right and many other nations do too. Copyright is basically a bunch of time-limited exclusive rights, granted to you as an individual automatically, so you don't have to register, or follow a tedious set of formalities, to gain powerful legal protections.
These rights have a "property-like" characteristic. For example, you and you alone can transfer them, just like you might sublet a house. You can exclude other people from them by withdrawing their use. Your rights are incredibly strongly defined in national law and by international treaties. So saying "property right" is just a short-hand way of saying "a right with a property-like aspect".
For sure, this property right is never an absolute right. For example, we think free expression is valuable too, and it's protected in many legal systems, but it isn't an absolute right either - I can't run into your house and scrawl over the walls. In that case, the property right wins. Lawmakers try and encode a fair and sensible balance when they create the law. So your rights are protected pretty strongly, at least on paper.
Q. But how can something digital have a 'property right'?
Whether the creation is on paper, or in bits, doesn't really matter. That doesn't mean it isn't protected by strong rights. Remember: it's the rights that are property-ish. Now we can, for rhetorical purposes, pretend that all this is an illusion. In recent years, some academics and the thicker elements of our “intelligentsia” have argued that intellectual property rights aren't really rights, and that property isn't property.
Some have even made a lucrative career out of this rhetorical conjuring trick. This view is held by the authors of the UK landgrab: they view IP not as property, but, in Modern Government Mandarin-speak, as "a framework".
"So, in their view, IP is nothing fundamental, really, just a bit of Meccano to be fiddled with and re-configured at will."
But reality eventually catches up with everyone - even utopian academics and armchair dabblers. Strong international treaty and law protects these individual rights, and there are consequences to messing around them with them. There's also social reality: how people think and feel and treat each other. That small, awkward fact that if you take somebody's creative work away from them and exploit it without their permission, and without paying them, they'll let you know how they feel about it pretty quickly.
We actually feel very “proprietorial” about our creations; we regard them as an expression of the human individual, and this was the big French contribution to the development of IP. Even in the old Soviet Union, hardly renowned for its conscientiousness towards rights in general, copyright was regarded as a property right - it's just that in the Soviet example there could only be one owner: the state. So the current UK rhetoric doesn't make these strong laws, or the principles behind them, go away.
All of this means that when you make a break with agreed international systems you become an outlaw. The authors behind this law don't think copyright is a property. As a result, the UK will soon face the reality that being an outlaw has a cost.
Q. Why are property rights so important, then?
You can't have a market without property rights. Markets are the least bad way we've devised of stimulating the production of creative works and rewarding people who make them.
For sure, we could raise taxes and reward every Instagram post, but in the austerity era, with essential social services under pressure, there's no appetite anywhere for creating new taxes to pay for the culture industry. Subsidised culture, like the opera, is very much the exception and not the norm. It's in our interests to have a healthy trade in creative works, whether you're amateur or professional, creator or consumer, so the creators of those works are properly rewarded. They've worked very well until now, supporting an incredible diversity of businesses from indie dubstep labels to Hollywood.
Evidently, some people find attaching money to cultural goods distasteful in the digital era. The idea that "property isn't property" arises from this intellectual prejudice, and it's enthusiastically adopted by large Silicon Valley companies and messianic academics alike. What this means in practice is only distributors and third parties can pocket the value of your work - and not you.
Q. Just how am I protected by international law? Can I opt out of the UK's landgrab? If the UK is now a rogue state, what happens next?
Member states who go rogue on IP - as the UK has just done - face a highly uncertain future in the modern world. Three international treaties are particularly important. The Berne Convention first specified that countries who sign up must pass a three step test. One of these steps means any changes a signatory nation wants to make to copyright must "not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
This test is also found in the UN's World Intellectual Property Organisation copyright treaty and the TRIPS agreement on the Trade-Related aspects of Intellectual Property rights.
The UK is signed up to all three - and thinks the enabling legislation within its Enterprise and Regulatory Reform Act has got around this test - but experts disagree. The UK is also likely to fall foul of its obligations at the EU level under the EU Copyright Directive, and the recently-adopted Orphans Directive. Even the Nordic countries, which run an “Extended Collective Licensing” scheme, a tightly regulated one, limited by territorial scope. The terms of the Nordic ECL doesn't facilitate mass use of millions of images without the owner's permission; the UK's does.
Countries face trade sanctions if they go rogue. But before that happens that they're likely to face harm their own creative industries who first need to thrive in their own markets, and depend on protection abroad. So the land grab could be very bad news indeed for the UK, which is a net exporter of its intellectual capital; it exports more than it imports.
Q. Sounds bad. How did it happen?
The landgrab is the work of Britain's most powerful copyright “tsar”, Edmund Quilty of the UK's Intellectual Property Office, and his team. The IPO doesn't doesn't think IP is property - even though Parliamentarians have warned him to stop being so patently ridiculous.
In 2006 the dusty old Patent Office was given a New Labour-style makeover, rebranded the IPO, and allowed to set policy. Quilty, a career civil servant who previously worked in science policy and arms exports, joined the IPO in 2008 as director of copyright and IP enforcement. His previous ideas included wanting to make all copyright opt-in (which is impermissible under Berne) and the 2010 orphan-work legislation that was tacked onto the Digital Economy Act but removed from the final bill, as we reported last November.
Ian Hargreaves denied that Quilty's IPO wrote the "Google Review", while admitting that he relied “very heavily upon the expertise and unstinting hard work of the IPO team”. Critics say the direct handiwork of the IPO is unmistakable.
Q. But I thought ministers are supposed to be in control of their civil servants?
In theory, yes. The UK's Civil Service Code specifies that: "Civil servants are accountable to Ministers who in turn are accountable to Parliament" and the British prided themselves on a meritocratic public administration that was one of the least corrupt in the world. These days, however, looking after the kids needs constant vigilance.
In recent years some ministries stopped looking after their sectoral interest and began to follow a higher calling, serving what they believe to be "the greater good". This can run against the national interest.
IP is just one of several areas (energy policy is another) that have become hotbeds of activism.
Even though IP-based industries are one of the UK economy's biggest successes, copyright ministers come and go on yearly basis; there have been three copyright Ministers since the Copyright Landgrab was mooted last July. So inexperienced and junior ministers rely on their civil servants' "expert advice". This means relying on Britain's unelected copyright tsar, and they're easy prey.
Q. Why aren't digital rights groups batting for me?
Digital rights groups are sympathetic to the land grab, and have been keeping a low profile. Many are still rooted in the 1990s-era view of copyright as a regulatory nuisance holding back technology, and not a powerful individual human right that successfully keeps chancers and spivs honest.
In addition, many “digital rights” groups receive funding from large technology companies such as Google. They'd probably take the same view without the funding, but as the saying goes: "It is difficult to get a man to understand something, when his salary depends upon his not understanding it."
You may argue that copyright groups have, in the past, inhibited the development of new markets. That's fine, but it's strange to use that in an argument which destroys current and future economic opportunity for billions of people. Must you take it out on the kids? Perhaps it's better to strengthen creators' rights instead. Your kids are more likely to thank you.
Q. So digital rights are really rights for computer equipment and operators, but not for humans?
That's about it. We're collateral damage.
Q. What happens next?
Watch this space. Litigation is brewing and the backlash has caught the IPO by surprise. How people think and feel about their creations was not factored into their digital utopia. It matters. A lot. ®
* A regulation that gives ministers the power to amend laws - mostly adding more detailed orders, rules or regulations - and which in practice doesn't always require full Parliamentary scrutiny.
** So called because it was first used by Henry VIII in the Statute Proclamation of 1539, giving him the power to make laws by proclamation.