Help yourself to anyone's photos FOR FREE, suggests UK.gov

Original URL: https://www.theregister.com/2014/07/23/uk_gov_copyright_reforms_means_nobody_need_pay_for_images_again/

Posted in Legal, 23rd July 2014 14:56 GMT

The government's fourth IP minister* in less than two years took office at the Department for Business, Innovation and Skills last week, but her predecessor has left a few undetonated hand grenades in her in-tray. One of them concerns using other people's copyrighted works for free – whether they like it or not.

They're all consequences of the Hargreaves Review - which was supposed to simplify and modernise copyright "for the digital age" - but which critics say does the opposite, allowing amateurish meddling to tie up the courts for years.

One grenade has alarmed photographers, as it apparently allows anyone to "quote" a photo in its entirety, bypassing the need to pay the creators – let alone ask their permission – and potentially nuking the market for images.

These are markets the government hoped its soon-to-be-unveiled Copyright Hub would stimulate, making licensing as easy as a right-click.

The problem lies buried in one of the three new Statutory Instruments (SIs) which modify part of UK copyright law. Section 30 of the current Copyright, Designs and Patents Act 1988 refers to "Criticism, review and news reporting". Using an SI (which avoids the need for Parliamentary debate) the government wants to wedge the word "quotation" into the section. So section 30 of the law becomes the "Criticism, review, quotation and news reporting" exemption from existing copyright law.

But nowhere has the government defined what "quotation" actually means. So these must be therefore be defined by the courts, adding to the risk and expense for copyright users, but increasing the wealth and happiness of m'learned friends.

The proposed SI adds the following words:

(1ZA) Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that— (a) the work has been made available to the public,
(b) the use of the quotation is fair dealing with the work,

(c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and

(d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).”

One extra addition - common to all the government's new Hargreaves-driven SIs - forbids a private contract from trumping the exception. This is a huge and controversial historical change that scrutinizing committees have already laid into. But that's another story.**

The dangling reference to "specific purpose" will also be left to courts to explain. No evidence of any economic gain has been advanced to justify the change.

So if (when) the draft goes through, will you be able to "quote" an entire photograph? It appears there's nothing to stop you. And the owner will no longer be able to bring an infringement case against the user. Will newspapers be able to rip photos off each other? Quite possibly - and a court will have to decide if it's lawful or not. This has a massive impact not just for those who make their living from licensing photographs, but amateurs who post to Flickr or Instagram and then find the image lifted and used elsewhere.

The government ignores red flags

At the start of the month BAPLA, the trade body for picture agencies and photo libraries, wrote to Parliament's secondary legislation scrutinizing committee, pointing out how broad and ambiguous the proposed changes were. In the opinion of QC Richard Spearman, they went far beyond what an EU member could introduce via secondary legislation.

In the letter, seen by The Register, BAPLA's Jonathan Lockwood argues that the government cannot smuggle through wide-reaching legislation via SIs, which are used for regulatory tweaks. The government argues that the 1972 European Communities Act allows it to make regulations "… with matters arising out of or related to any such obligation or rights".

"This cannot be true," writes Lockwood, "as otherwise the government would be able to use secondary legislation to introduce new laws impacting human rights and the like… it cannot do this."

The British Copyright Council has also written to the committee, raising the same points. It also adds that in the EU copyright exceptions can only be applied "in special cases" - and only when they don't interfere with normal, commercial business as usual. They cannot be commandeered, as Hargreaves and the IPO appear to have done, to steer national policy in an entirely new direction. In other words, if you fail to get your policies in through the front door, you can't use SIs as a back door.

No, you can't sneak round the back and try again

The law itself today is complex, but it's far from daft. It's certainly more flexible and accommodating than the copyright reform headbangers think. Photographs can't be reproduced for news reporting but can be reproduced for commentary or criticism. Biographers can quote excerpts of a letter, but not the whole letter. You can't quote a whole poem or novel that's under copyright. But nowhere does the current law state that a whole work can't be quoted - for that would outlaw quoting a copyrighted slogan.

The law: A ass, a idiot ... if Hargreaves and Co get their way

BAPLA's Isabelle Doran told us: "Historically, the Criticism & Review Exception was introduced for the purposes of reporting a current event, provided there is sufficient accompanying acknowledgement and that the dealing was fair; the exception does not apply to photographs as it was argued that photographs contain a unique visual report of a person or an event, and therefore as photos are excluded it meant a newspaper could not use photos from rival newspapers and claim a fair dealing defence. We believe this successfully struck the right balance between the protection of the rights of the author and the wider public interest.

"The introduction of a substantially wider exception under 'quotation' which does not exempt photography potentially opens the door to greater exploitation both in print and online,” continued Doran, “especially by those that simply aggregate content either posting or linking to them and are not those developing the story."

How so? Another expert explained:

"The problem, it seems to me, with the new exception is the vagueness of the language. 'Criticism' and 'review' are activities with specific purposes; 'quotation' is not. A 'quotation' is usually an extract from a longer work (normally literary or musical); see OED, s.v. quotation, 5a ' A passage quoted from a book, speech, or other source'. If that is taken seriously, then the quotation exception cannot be used to reproduce a whole image. But who knows what people will try to do, or how judges will rule?"

Doran says this adds to the expense and uncertainty for everyone, particularly the image-makers:

"A fair dealing test will apply to both quotation and parody but without any kind of definition within the legislation nor UK case law, therefore what exactly should be regarded as a quotation or parody? It is very possible that users of copyright works will take an overly broad view, leaving it for photographers to ask the courts to clarify, the costs of which would always vastly exceed the cost of an image licence at stake. This really is a body blow to photographers who are already finding it difficult to control use of their photos online."

As the government's civil servants blithely point out in their impact assessment (PDF): "'Fair dealing' is a legal defence, which is ultimately for courts to determine."

And so they must.

It's worth bearing in mind the genesis of the Hargreaves Review. This rapidly became known as the "Google Review", because Prime Minister Cameron announced it by musing whether the UK needed the equivalent of "Fair Use" to help nurture a British Google.

When it comes to the Hargreaves review, it appears the IPO has ultimately decided against a front-door approach. But perhaps Google will achieve its aims anyway - with the IPO throwing everything open for the courts, and activist judges, to decide. ®

Footnotes

* Four ministers have supervised Ian Hargreaves' Californian-inspired tilt at rewriting UK copyright laws: Baroness Wilcox (May 2010 to September 2012); Lord Marland (September 2012 to January 2013); Viscount Younger of Leckie (Jan 2013 to July 2014); and now Baroness Neville Rolfe. Younger made headlines when he confessed that Google had better access to No 10 than he had. ®

** Lord Scott (Richard Scott of the Supergun Inquiry) took IPO officials to task in May: "One of the bedrocks of English law is the sanctity of contract ... what the contract override provisions are providing is that you cannot make a contract to protect the copyright holder even if the price on which he is willing to allow whatever it is to go to the user is much lower than it would otherwise be."

When the IPO explained that "We do not want contract law to basically undo what we are trying to do in exceptions," Butler replied, "Forgive me, but that sounds to me like a little piece of government arrogance that goes far beyond what is legitimate… It is appropriation of the copyright holder’s valuable item of property." (PDF).