What Gowers should have done

I have been asked several times recently what is deficient with the Gowers report proposals and how they could have been better from the point of view of photographers. So here is a summary of his main recommendations, how they may affect us, and how I think he could and should have done it better.

1. A right of private copying

This proposes 'transformative works' fair use, allowing a single copy from one medium to another. Gowers proposes the economic losses due to this should be factored into original sale prices.

In itself, not a bad idea and intended to regularise what is normal public behaviour anyway with music and films and anything else they feel like copying for their convenience. There is little to object to in principle, although photographers who depend on print sales - primarily wedding and social operators - will disagree about the practicality of increasing prices to cover the losses in an already saturated competitive market.

Moreoever there are no means of detecting or limiting such transformative copying, and the public will take it as a more general permission to share copyright images via email and the web. Copyright law is already confusing to laymen, and making odd exceptions will only make matters worse. This may have a dramatic negative impact in the context of 2 below, as such copies will almost never contain metadata that identify the rights holder. Such orphaned copies, bereft of copyright statements, will propagate freely on the internet.

What he should have done:

  1. incorporated into copyright law Creative Commons style licensing for any private non-commercial use with mandatory attribution. This is a simple and fair way to allow personal use, all the user has to remember is to credit the author. Without attribution, the usage becomes a prohibited use with fixed penalties owed to the rights owner and recoverable through the courts. All commercial use requires licensing in the same manner as at present.

2. Orphan Rights

Will permit use of copyright material if the rights owner cannot 'reasonably' be traced, and will limit fees payable if the rights owner does eventually show up.

Taken with the private copying right at 1 and the fact that for years publishers have been stripping and rewriting metadata either deliberately or as a result of alleged picture desk software limitations, this seems like a charter for large-scale commercial exploitation without any payment to the photographer. 'Orphan Rights' would seem to encourage the editing and removal of metadata. Again, there are no provisions for detection of such interference, no mechanism of enforcement nor penalties - except via criminal copyright law against 'passing off'. Which is infamously difficult and costly to prosecute, since criminal intent must be proved.

What he should have done:

  1. for genuine Orphan cases, require payment to a central fund which maintains a publically inspectable database of those images claimed to be orphans, against which claims can be lodged for a defined period, say 10yrs
  2. introduced a concept of protected metadata to include those fields which directly relate to rights ownership and moral rights
  3. made removal or alteration of this protected metadata - whether deliberate or accidental - a specific offence
  4. made commercial distribution of images without protected metadata a specific offence
  5. made moral rights - right to byline etc - mandatory and non-waivable with an automatic penalty for omission of byline except in instances where there are agreed privacy or security considerations


3. Copyright registration

Gowers proposes a copyright registration bureau as a possible counterweight to the Orphan Rights proposals. It appears this will be broadly similar to the US system, enabling registration of individual photos or collections of photos, for a fee. Costs are not discussed, but are certain to be disproportionate, along with bureaucratic overhead, for photographers to register more than a small, high-value proportion of their work.

Unlike the US system, which enables automatic punitive damages (to $150,000) for misuse of registered work, Gowers proposes no special status or punitive damages. Copyright violations would apparently incur the same costs as for unregistered works, ie no more than the thief would have paid for negotiated usage. There is here no disincentive to theft.

What he should have done:

  1. Gowers does not give much detail of what he proposes, but the technology exists (see www.doi.org) to assign a unique 'handle' (resource identifier or number - URI or URN) to every image via a registry system. This URN or URI would become part of the 'protected metadata' mentioned in (2). The cost of such systems is trivial, a few pence per image, since registration is a fully automated online procedure. All URI's/URN's would be traceable by lookup at the registry, to an associated author record and rights-holder record, and orphan works most unlikely to occur. The DOI system is already in use for tracking scientific journals and other documentation and revisions, and adaptations exist to accomodate images, artworks and movies. The system is conceptually and operationally very similar to the DNS system used for websites. The DOI system is already supported by most web browsers, so looking up ownership details is programmatically easy, and the facility could easily be extended to production software used for photo editing, web and print publishing.

3. Simpler access to legal redress

Gowers proposes an extension of the remit of Trading Standards to cover S.107(1) of the 1988 CD&PA.

Sounds great, call up TS each time a publisher uses a photo for profit without permission? I really don't think so, though TS may be more enthusiastic about closing down pirates of commercial DVD's or software, but then they do that already.

What he should have done:

  1. Tried progressing any sort of complaint through TS before making such a daft suggestion. They are overwhelmed, under resourced, and have extremely limited powers to act. It's a vacuous, New Labour sounds-good-but-amounts-to-nothing proposal. I don't personally see why a deliberate commercial theft is any different from my eating dinner and trying to leave a restaurant without paying, whereupon the police would be called and I would be arrested.
  2. Introduced the concept of punitive damages as an automatic multiplier of market rates where images are used without permission. It is completely absurd that if someone steals £100 of image use, the most that can be recovered from them via the courts is £100.

4. What else could he have done?

  1. Instituted authors' rights on the European model, such that assignment of copyright and moral rights are simply not possible outside the scope of employment. This would restore some balance in negotiation of licensing terms by relieving pressure on freelance creators to surrender copyright as a non-negotiable condition. All rights and exclusivity contracts would still be possible, but negotiation of terns would become necessary as the creator would be free to obtain best value in the market.
  2. This could be strengthened further by requiring that the initial contract regarding work cannot be all rights, that any all rights licence must be additional, subsequent and supplementary.
  3. The NUJ argued for the establishment of special copyright courts or tribunals that would deal with such matters, as a cheap and specialised process.
  4. German Copyright law since 2002 attempts to address the 'structural superiority' of media companies above their contractual suppliers and provides for challenge of unfair contract terms. If UK were to adopt something similar, publishers would be less able to impose unfair 'all rights' deals.