I believe that the UK’s or anyone’s cultural heritage is chosen and preserved by society and not by government. If government becomes involved it unfailingly chooses to dictate or to fail to make any choices at all. The first buds of a totalitarian state. I suggest as politely as possible that the government and our/their servants should leave creative matters to us the creators. It is our business and not yours. In short I think government should mind their own business and leave us to succeed or fail according to our abilities.

The proper business of government is to provide rule of law and to protect the rights and property of its citizens and to ensure fairness of contract and a level playing field. Why are we creative people not entitled to normal legal protection for our property and the results of our labours and legitimate sources of income? All citizens are entitled to that and that is all we ask for in compliance with the Berne Convention. We expect normal civil law protection and, indeed, protection against criminal acts such as the theft of our property. It seems that your aim is to undermine these fundamental rights including our human rights. Totalitarianism again?

Not only do you wish to curtail the above rights for your convenience but you intend to profit from the sale of rights in Orphan Works in order to pay the huge cost of indiscriminately protecting what you purport to be our cultural heritage while at the same time destroying its future.

As for Stop43, I believe that without that group we would already half way down the road to ruin. It is probably hard for people in your position to appreciate the personal sacrifices made by those, on behalf of other independent creators and future generations, who oppose your alarming schemes.

As one of the founders of Pro Imaging – an international group of full time professional photographers, we feel very strongly that it is important that a stop is made to the creating of even more Orphan Works. This can be achieved in many cases (thereby saving your members from time spent in trying to contact the owners of these works) by supporting ours and others frequent requests that government makes the removal of metadata illegal, and makes provision for punitive fines for any organisation found to be doing this. Metedata of course is the information attached to most professionally created digital files that gives the name of their creator and where they can be located.

We look to your organisation and members to support and press government to support our call above. Not only will this reduce your members’ workload, it will ensure that members working in the creative industries will have an improved chance to actually earn a living wage, which I imagine most of your members take for granted.

Kind regards

Richard Kenward

Co-Founder Pro Imaging (5 Christina Street, London, United Kingdom, EC2A 4PA)

I contributed towards the survey, mainly to point out how inadequate it is. The fact that one completes the survey doesn’t mean that one supports its lobbying aims. If the SCA believes that anyone who completes their form must neessarily support their propaganda, they are sorely mistaken.

For such a document to be issued from what should be an academically excellent organisation is unforgivable . That it should be issued from an organisation that is ultimately publicly funded in order to commit blatant lobbynomics is beyond the pale.

By all means conduct a survey , but make it fair , unbiased and circulated a wider audience than those who stand to benefit from a biased response .

I am puzzled by your comment on the Stop43 group . All of my research has pointed towards a fair and well researched group whose evidence is based on fact rather than uneducated opinion . To my knowledge , they have done nothing to dissuade photographers from completing this survey . Maybe you would like to clarify that point ?

For such a document to be issued from what should be an academically excellent organisation is unforgivable . That it should be issued from an organisation that is ultimately publicly funded in order to commit blatant lobbynomics beyond the pale.

By all means conduct a survey , but make it fair , unbiased and circulated a wider audience than those who stand to benefit from a biased response .

I am puzzled by your comment on the Stop43 group . All of my research has pointed towards a fair and well researched group whose evidence is based on fact rather than uneducated opinion . To my knowledge , they have done nothing to dissuade photographers from completing this survey . Maybe you would like to clarify that point ?

Rather appositely, this week’s Spectator magazine contains the following from Toby Young, commenting on what appears to be another biased report:

‘This is the problem with most evidence-based approaches to public policy. The researchers don’t impartially gather information and only then draw a conclusion. Rather, they start with a particular point of view and accumulate whatever facts support that view.’

I think we would all be grateful if you would engage in meaningful dialogue with us by addressing this point, Mr. Dempster, rather than hiding behind the anodyne bureaucratic platitudes expressed in your blog post.

‘Seeking New Landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010′, by Barbara Stratton, published by the British Library in September 2011, states the following:

• Permission to digitise was sought for 73% of the books in the sample. Of these:
• rights-holders gave permission for just 17% of the books to be digitised;
• permission was not granted for 26% of the titles.

Consider that, for a moment. Of the rights-holders traced, MORE THAN HALF did not grant permission for their work to be digitised.

On average it took 4 hours per book to undertake a ‘diligent search’. This involved clarifying the copyright status of the work and then identifying rights-holders and requesting permissions. From a rights-holder’s perspective, given that the purpose of this search is to breach our human rights, moral rights and copyright as granted to us by the Universal Declaration of Human Rights Article 27 and the Berne Convention Article 9 if we cannot be found, and in many instances fundamentally undermine the economic value of our copyright to us, this does not appear to be excessive.

Is it really worth disrupting the functioning market in rights to make these self-published and institutionally published ‘orphans’ more widely available? What are the justifications, cultural and economic? What is the value of this material? And to whom the profit, if any? Is this really a ‘treasure trove’, as Hargreaves and British Library CEO Dame Lynne Brindley insist?

I note that your blog post concerns itself with reciting your well-rehearsed justifications for your drive to legalise your commercial use of orphan works, which presently takes place on a ‘risk-managed’ basis, and extended collective licensing of all works. You do not engage with any of the arguments so eloquently put forward by many commentators on your original blog post.

When might we expect you to engage in meaningful dialogue with us?

There is no space here to go into the problems with orphan works legislation of the type Hargreaves proposed, but I went into many of them in detail here:

http://simoncroftsphoto.com/blog/?p=917

Whether that was the result simply of a lack of awareness of the main issues, or as a partisan lobbying tactic, is hard to judge, but either way, the survey is an unfortunately shoddy piece of lobbying.

Photographers are well aware of issues that museums, libraries etc. have with preservation of cultural works, and have, I believe been in favour of limited orphan works proposals that support these ends. The problem is, which the survey and also your post above totally fail to explore, that Hargreaves has gone much further than this, and is trying to introduce commercial use of orphan works.

Of course, many institutions see a potential income stream from exploiting works that don’t belong to them, and are using the preservation/cultural card to try to tap into that money, no matter what the cost.

There are a lot of complex issues around this debate, but the survey and blog post roundly ignores them all, and it is clear from the way that the survey is worded that the questions are an attempt to reinforce a myopic view – the very narrow one outlined in the blog post above.

Had the survey tried to ask some interesting questions: such as the extent to which museums, libraries etc. need to be able to make copies of works for preservation, to what extent for exhibition, to what extent for fund raising, to what extent commercial use is wanted or needed, and made some attempt to measure potential downsides, such as restricting access to future works then the survey might have had some value.

As it is, it’s only value and the value of the blog post above is to demonstrate that the key issues are either not understood or are deliberately ignored. These matters are raised so often, and so consistently ignored, that it becomes increasingly hard to believe that the ignorance is not cynical and deliberate.

Hargreaves and the IPO seem determined to ignore the provisions of the Berne treaty, which is one measure of their determination to introduce the proposals no matter what the cost or legality of them. The EU drafters of orphan works legislation seem to have Berne very much in mind when they drafted the proposed EU directive on the issue.

Why can’t Hargreaves and the likes of the IPO seem able to grasp the issues involved on even quite a basic level? This survey and blog post, with its obvious and blinkered lobbying on behalf of narrow interests, are not helping get the issues out into the open and discussed rationally.

Hargreaves proposals cannot go through in their current form. Even if they do, they will be challenged and thrown out shortly afterwards on the basis of Berne and/or EU law. Why can’t we have an informed debate in the meantime, and save everyone a lot of wasted time?