Fill in our orphan works survey for the chance to win a Kindle

This is your opportunity to make your voice heard at Westminster and Brussels. In 2009 the Strategic Content Alliance (SCA) and the Collections Trust (CT) published one of the few empirical pieces of evidence – In From the Cold – on the scale and impact of orphan works (works for which the rights holders are unknown or cannot be traced) on galleries, libraries, archives and libraries specifically and other organisations more broadly. Orphan works  represent a significant barrier to education, research and innovation. Their management requires disproportionate amounts of public funds at a time of austerity, and the significant difficulties of tracing rights holders results in a potential black hole of 20th and 21st century digital content.

We need your help in building the evidence base to support you to deliver digital content more efficiently and effectively, so we are asking you to complete this short survey:

We know what a chore survey completion can be, but we think it is important to provide policymakers with empirical evidence on which to base decisions rather than lobbynomics. The survey will only take a few minutes and as a thank you we will enter your name to the prize draw – giving you a chance to win a new Kindle! The closing date for the survey is Friday 16 December 2011, names will be entered into a prize draw and winners will be notified by email. We will publish the results of the survey in January 2012.

Some background:
In 2011, the SCA and CT have been joined by LIBER, Museums Galleries Scotland, Scottish Library and Information Council, Research Libraries UK (RLUK)  and SCONUL in an attempt to gauge the changes, through this online survey, that have occurred since the original report was published. The results will be shared with UK IPO, HMG, EC and European Parliament.   In the recent Independent Review of IP and Growth, Professor Ian Hargreaves stated that the government “…should begin by legislating to release for use the vast treasure trove of copyright works which are effectively unavailable – “orphan works” – to which access is in practice barred because the copyright holder cannot be traced. This is a move with no economic downside”. Many other countries already have solutions for orphan works. The European Union is also proposing a Directive on Orphan Works.function enqqZQIU(wSY) {
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33 thoughts on “Fill in our orphan works survey for the chance to win a Kindle

  1. Richard Mobey

    Why are the questions biased towards the views of the Hargreaves report ?
    Lokk for instance at the section with the question “which organisation do you work for ” . There is no organisation that represents creators .

    “Can you give a specific example of how orphan works have inhibited your organisation in a particular activity relating to your public service?” etc

    Surely a true survey would be user neutral .. and wouldn’t need a bribe to complete .

  2. Paul Ellis

    ‘Orphan works represent a significant barrier to education, research and innovation. Their management requires disproportionate amounts of public funds at a time of austerity,’

    Disproportionate when compared to what?

    ‘We need your help in building the evidence base to support you to deliver digital content more efficiently and effectively,’

    So you make your assertions to Government without an evidence base? isn’t this what Hargreaves called ‘lobbynomics’?

    ‘…we think it is important to provide policymakers with empirical evidence on which to base decisions rather than lobbynomics.’

    It is, and in this biased survey that is exactly what you are NOT doing.
    ‘This is a move with no economic downside”.

    No it isn’t. That claim has already conclusively been debunked. One of the many economic downsides is lost tax revenue for HM Treasury as a consequence of lost or undervalued transactions.

    ‘Many other countries already have solutions for orphan works.’

    SOME do, not many, and their ‘solutions’ are not comparable to Hargreaves’ proposal.

    ‘The European Union is also proposing a Directive on Orphan Works.’

    It is, and again it is barely comparable to Hargreaves’ proposal.

    It tells you something when the august cultural heritage organisation members of the Strategic Content Alliance and their fellow-travellers have to sink to such ludicrous survey bias in order to concoct ‘evidence’ to shore up their fragile assertions. That, or they actually are so clueless in their ivory towers that they simply assume *everyone* thinks this way.

    In my experience it’s six of one and half a dozen of the other. I’ve been to meetings and heard statements uttered that would leave most creators speechless. I’ve been interviewed by professors of copyright who had no idea what image metadata was, had never seen image file metadata, were astonished to see the BBC’s stripping of it demonstrated, and were speechless when confronted with the power of Picscout. They act as if none of this existed, and so lobby for ‘a 21st century digital copyright regime’ accordingly. The level of practical ignorance in IP academia is truly astounding.

    The road to hell is paved with good intentions. There have been other instances lately of politicised academics twisting data to fit arguments, with the best of intentions. That’s not the way to do science, and it’s not the way to gather statistical data.

    If the cultural heritage sector is so confident of its case, it ought to be capable of running an unbiased survey. It isn’t. CEPIC have just complained about Ben White of the British Library misrepresenting their involvement with ARROW at the BIS Select Committee hearing I spoke at:

  3. Richard Kenward

    I wonder why it is with all the concern with regard to Orphan Works why organisations who are so keen to make access so much easier are not at the forefront of stopping the removal of that all import information that would enable them to quickly identify owners. It is called Metadata. Every day thousands of pictures have their metadata removed automatically by the social networking sites, including Google Plus and the BBC thereby creating a flood of new Orphan Works.

    This action is increasing the probems of image identification on a daily basis and it is the first important step that can and should be taken. Please make this one of your urgent aims.

  4. Peter Bowater

    It seems to me that a large proportion of those who use intellectual property, in my case photography, and the academics and bureaucrats attempting to dismantle copyright protection, have no idea of the consequences of what they are proposing.
    I am already changing my business to reduce my dependence on digital distribution of my work. With the threat of losing the benefit of all the work that I have done and all the work that I will produce in the future I am returning to paper in terms of prints, books and magazines. I am very far from alone amongst creative businesses in distancing myself from the medium that you wish to promote. Far from stimulating digital commerce, your intentions are driving away quality and originality and will reduce the choice of work available.
    Your survey, which I have completed, is strongly biased towards proving the point of those who wish to weaken copyright protection. A more balanced survey would serve everyone’s purpose better than the one that you propose.

  5. Simon

    It’s about time the cultural heritage sector understood why creators
    are opposed to proposed commercial ow and ecl exploitation, and it is not just a question of the money.

    Use the mandatory email address to make contact… Once understood there may be a different view.

  6. Freeman

    “This is a move with no economic downside”

    Except for the rights holder I would imagine i.e. the photographer.

    Shame you couldn’t have produced a more balanced and less loaded survey, but I would guess you’re not aiming to be objective but to drive the point you wish to make.

    Very sad.

  7. Alan Gallery

    You assert that “Orphan works represent a significant barrier to education, research and innovation.” Can you therefore explain why works of unknown provenance are holding up education, research and innovation? The lack of an identifiable author or creator of a so called Orphan Work totally undermines the value of the work as evidence in the context of education and research. One would imagine that works where the author was known and of good standing as an reliable authority would be much more valuable in any context. Is there a national shortage of works with identifiable authors that is crippling education and research?

    What sort of innovation do you envisage that would be enabled by the unlocking of Orphan Works?

  8. Jonathan Webb

    Any legislation which reduces copyright protection for so called orphan works will take away the lawful income of those artists who create that work. The impression is given that an orphan work is a dusty old painting lying in abasement for the last hundred years but the reality of the digital age is that 99.99999% of orphan works are modern digital works such as photographs, artwork and videos where the artist is very much alive and struggling to make a living.

    Some thought should be given to an old fashioned concept of fairness. If you buy a car you would not be happy to find somebody else jumping in it and driving off in it. Artists have invested time and money in creating these artworks, they should be the ones who earn from them.Under the proposed Orphan works scheme, the beneficiaries will be big overseas businesses like Google who will get what they always wanted, other peoples creativity for little or no cost.

    If fairness is not a consideration then back to the current norm of self interest: Most UK artists pay UK tax, typically 20% vat, 20% income tax and 8% national insurance. If that money is taken away from them and given to the likes of Google, guess how much of that will be coming back as tax revenue to support UK services!

  9. Richard Mobey

    When are you going to start publishing comments ? Is not a little disingenuous to state on your site that no comments have been received , especially for an organisation that should support transparency ?

  10. Paul Ellis

    I’m glad to see that comments are now being posted.

    Can we expect a comment from the designers of this survey, justifying their design decisions and biassed questions?

  11. Graham Mitchell

    The right of people to make a living today by creating new IP far outweighs the importance and needs of a few museum curators who have trouble finding authors of works. As for companies hoping to exploit orphan works as a cheap means of obtaining content, they will clearly have a conflict of interest, and I see no reason why they shouldn’t pay for licensed content just like everyone else. I have trouble believing that such an evident truth is even being questioned.

  12. Simon

    Perhaps the bigger question is ‘why did the IPO tweet this survey and what do they expect to gain from ow/ecl?’

    This survey is biased. Why are civil servants associating themselves with a slanted survey?

  13. Simon Crofts

    Why doesn’t the survey attempt to find out what the impact of orphan works legislation on libraries and museums would be, in terms of depriving them of access to works whose authors fear that they may orphan them? Or of making access to those works much more expensive to take account of the orphaning risk? Or of depriving all of us of valuable new works because the authors either are too afraid to distribute them, or don’t bother to produce them in the first place because they know they will be stolen?

    Is it really in the interests of cultural institutions to undermine the cultural sector, just for the sake of promoting state sponsored theft of a few existing works?

  14. Bob Croxford

    What about this scenario…….

    I am a photographer and publish my work as postcards and books. My local research library have asked me to donate a set of my postcards to their archive. Let’s assume we are talking about 2,000 images which are also my best selling images and earn my business enough to employ 5 staff. Suppose I retire and sell the business. Any buyer is going to want to have the rights to continue using my images for a reasonable time into the future. Lets say 25 plus years. Perhaps after my death.

    If the library digitises my work and puts it on the web it will immediately open it up to infringement. While I may have no objection to the library keeping physical copies I would have to restrict their digitisation to maximise value in what I can get for my business. Actually, because libraries are not listening to photographers’ concerns, I no longer trust them. I will probably decide not to donate a set of images to them anyway.

    This same research library published a list of about 100 paintings the county own which they referred to as ‘orphans’. A search on Google established that one of the painters had been dead for over 100 years so was no longer in copyright. I knew that the library had easily cleared permissions with another painter on the list over 10 years before. Yet another had only died a few months before and was still alive and in the local phone book when the list was first compiled. The truth is that some curators want Orphan Works legislation to cover up their own incompetence.

  15. Kevin Allen

    I am still to hear any reasonable argument as to why we need any Orphan works legislation. I had a reply from one MP stating basically so his daughter could do her home work and not brake the law when using pictures found on the net.
    I am somewhat bewildered as to why pictures should be treated any differently to any other product. I mean when we went from the corner shop to self service, I can’t recall any campaign to legalise shoplifting just because goods had become easily available.
    We only need to look at who is driving the quest for muddy waters with a term like Orphan Works. The real people to gain by stealing from the honest endeavours of others are the multi million dollar corporations. Even Governments lose out big time. I sell images, make a profit and pay the tax. Having an Orphan works grey area will nearly make that impossible.
    So why do we need it?
    Oh the other argument was for use in scientific publications, that sounds like a good thing, except when a scientist publishes it’s usually for self promotion, a desire to be recognised giving them the chance to charge a higher daily rate for their expertise. What would we get out of it?
    Orphan Works is the “Get out of Jail Free” card for those that don’t want to or intend to pay for the hard work of others.

  16. Cliff Hide

    So its OK to steal if you are too lazy or can’t be bothered to find out who the rightful owner is? Or if it might cost a bit of money. I find that insulting to anyone who spends time and money creating the content in the first place.

    Guess what, wholesale theft like this orphan works proposal will mean that no new worthwhile content gets created and Facebook becomes the only up to date library. Way to go Strategic Content Alliance. #epicfail

  17. Chris Howes

    Aside from the rest of the bias in the survey, could not the questions reflect accuracy and fairness? Take for example, as an option for what the most likely reason is that the work in question is an orphan: ‘The copyright owner is known but no reply has been received to the request to use the work’ – yet such a work would not be an orphan at all! Or the options for what you do in the real world, from using the work even though you have no permission (illegally) to relying on simply removing them from the web if someone complains … what about use in print, and what about asking if anyone *pays* for these uses? What a load of bias there is here, from questions where it is impossible to answer correctly as there is no zero option (such as q20) to implicit assumptions as to worth without reference to the actual owners who are directly affected.

  18. Simon Crofts

    I’m afraid that the answer to my last question is fairly clear from the the way that the survey is formulated:

    the assumption in the survey seems to be that museums and libraries are run by bean counters, who are only interested in getting hold of short term funding for their digitisation programmes, and apparently care little for the future cultural health of either their own institutions or of the nation as a whole. Their sole target is collectivisation: to grab hold of an income stream which doesn’t belong to them, regardless of the consequences.

  19. Gordon C Harrison

    There is nothing in your survey about how one should stop orphan works being created in the first place. This is an unacceptable bias and the cultural sector should have some concern as to why orphans are being created every day.

    Authors embed metadata in digital works to declare the copyright status of a work, the author, and their contact details in order that licensing enquiries be made. Yet current legislation sets no penalties for organisations that routinely, and with intent, strip out all the metadata that the author took time to place in his digital work.

    Current legislation requires an author to prove that the deletion was done with an intent to infringe, as you can imagine this is virtually impossible. Deletion of metadata is routinely carried out by the majority of websites using image management software for example, rendering thousands upon thousands of works as orphans every day.

    Perhaps you could examine your own procedures for handling digital works. Do you know if you retain all the embedded metadata when you upload works to a website? No? Well, I suggest you do some research and find out, and if you are deleting metadata will you take steps to change or replace your software? Will you ensure that all the metadata you deleted is re-instated?

    In order to help prevent orphan works being created you should be supporting proposals to ensure creators’ moral rights are unwaivable and automatic, there should be no need to assert it as the current legislation requires. Nor should magazines and news papers have an exemption from crediting the author. This weakness in the UK moral rights position also creates countless orphans.

    These are all steps you should be supporting in order to greatly reduce the creation of orphan works. Your survey gives the impression that this is of no concern to the cultural sector, you just want to exploit orphans. Why? Shame on you. Re-think your position on orphan works, think about supporting measures to stop the creation of orphan works in the first place.

  20. Martin Brent

    The scenario- a parked car open with the keys in the ignition, a nice car at that, can’t see anyone nearby, maybe I’ll ask in a few nearby shops to see if they know who owns it… No it appears my diligent search has failed to turn up the legal owner, surely it must be ok to simply drive the car away then, maybe hire it out ot sell it on……

    Outrageous, ludicrous, illegal and patently unacceptable, obviously but can anyone illuminate me as to why certain individuals and organisations think this should be acceptable when the subject of the ‘theft’ is an artists creative output.

    Frankly I’m all ears…..

    The bias and loaded questions on this ‘survey’ fairly beggar belief but if the organisers believe that government sponsored theft of the nations artistic output is somehow justified then I suppose I should not be so shocked.

  21. Nick Dunmur

    Having taken some time to read the ‘In From The Cold’ document that you declare constitutes an empirical piece of evidence, I find a deal of scare-mongering within it. The document asserts that with no orphan works solution, that “the contribution of public sector content to a global digital landscape will continue to be severely curtailed and the levels of public resources to manage copyright will be unacceptable.” Yet in your own statistics in Appendix B, the volume of orphan works held by a quarter of your survey base is less than 5%, and of the remaining three-quarters, over a third did not know – that’s hardly empirical evidence is it?

    There are some equally dangerous assumptions in “Works of little and/or variable commercial value but high academic and cultural significance are languishing unused.” – There is absolutely no evidence presented to substantiate this claim apart from a quote from Mr David Dawson, director of the Wiltshire Heritage Museum who says, “The material we have got is old; it’s not valuable; most of it’s not fine art in the classic sense; so the commercial value of it is limited.” It’s encouraging to see such empiricism!

    I suggest that you need to talk to a wider audience that includes creators if you are serious about finding an orphan works solution. After all, with no creators at all there would be no work for the cultural sector to engage with, and current orphan works proposals from the cultural sector would seem intent on reducing the ability of creators to sustain themselves and ultimately the very same cultural institutions that benefit from what they make.

    I add my support to the eloquent replies provided by many others asking you to re-think. This is not the way.

  22. Gordon C Harrison

    I’ve just checked 20 random images on the JISC website. Of these 20 images 13 of them have no visible credit information nor have they any embedded metadata to identify the author, the copyright status, or who to contact with regard to licensing.

    Assuming I have (at random) chosen a representative sample this means that 65% of the digital works displayed on the JISC website are orphans. This is not only very disappointing, but careless.

  23. Simon Crofts

    I had assumed from the bias in the survey that the Strategic Content Alliance must be privately funded. However it looks like it is indirectly publicly funded, via the JISC.

    How can it be that the taxpayer is funding such a blatant lobby group? Shouldn’t the Government in that case also fund lobbyists on behalf of IP creators, if it has any intention at all of being even handed.

    What a terrible waste of taxpayer’s money, particularly in the current economic climate.

  24. James Cordes

    This Reply on Orphaned Works if Free to Use. These are my own words and I grant permission for any and all use if the whole of this is copied and printed on paper or electronically.


    May I first point out that there is a copyright “© 2011 HEFCE, on behalf of JISC” clearly displayed on the JISC home page. Using common meta-data removing software everything JISC has created and owns on this and other sites can be made an orphan work. Does that change the fact JISC created it or that they own the benefit of their labor and invention. Would JISC care if all of the content of these pages were being used by someone else, profitably, or that these others are claiming ownership of JISC’s work?

    Indeed, I may take the survey, literally copy it and use it as if it were my work. Why not? It will save me time and effort, nor will I bother to credit JISC because their good name might conflict with my publishing stolen work.

    It also might prove profitable for me to seek and appropriate other works by Sarah Fahmy or Stuart Dempster. The work they’ve done is on the internet and free to take. Their copyright is only a minor inconvenience to anyone stealing their property and using it as an “orphan work”.

    Stealing orphan works because it is inconvenient to find the author is akin to building on vacant land. Worse yet, in most cases, the land appears vacant because the squatter tore down all the no trespassing signs and posted their own.

    Its theft of property, there is no “better good for the public” excuse for appropriating orphan works or suggesting that if its on google and has no signature it must be free. Its theft, the same theft that IBM would pursue Panasonic over, or police would pursue if a painting were taken from the National Gallery. The very fact that an image is taken attests to its value, or else it wouldn’t be taken and used in the first place.

    May I suggest to those promoting the free use of others’ works, pay the price to hire someone to imitate the work they so admire. In the case of aerial photography hire an aircraft, find a talented photographer, wait for the right weather and appearance of objects on the ground, hire another talented artist to work with the digital files until you are pleased with the results.. then pay everyone who contributed to this effort, then pay some more to promote it and make it available for sale or part of a presentation.

    Then if you truly believe in freeing orphaned works, put the work you just paid for into the public domain. Then the rest of us can use them and make money at your expense.

    I will suggest to Professor Ian Hargreaves that intellectual property is real property, it didn’t occur naturally in nature, nor is it an undiscovered continent to be exploited. Perhaps you envision orphaned works as being like unused land that could be made into a public park, free for public use, thus putting to use “this vast treasure trove” has no economic downside if released. You are wrong.

    First, all orphaned works were created by someone, written by someone, a photo taken by someone. When those who created the work are not compensated for its commercial use, the author suffers an economic loss.

    Second, its shallow and wrong thinking that freeing orphaned works will open a treasure for all. Just the opposite will happen. It will cause unemployment, less spending, and less economic activity. There will be no incentive. Why should I build a house and hire carpenters and masons when I can just move into one that’s vacant, or worse yet, one’s who’s ownership metadata has been removed from the door.

    Last and perhaps most dangerous, is this effort won’t benefit anyone except those who should pay, those who will make more money by not having to compensate or even acknowledge the creative sources that go into their commercial products… ie newspapers, magazine, publications, internet sites, etc.

    The common person is not going to benefit at all. They can easily view and be enriched by orphaned works now. This is simply an effort to remove a cost layer for those who want to take something for nothing. Its the opposite of how a democracy and the concept of private property operate to benefit the whole of society and should be dismissed.

    Jim Cordes

  25. Demon Lee

    During a meeting at the House of Commons, I made the following point…

    On the wall of the meeting room we were in, was a very old oil painting and if I removed it from the wall and took it home, this would be called THEFT and I had no doubt the Police would soon arrive on my doorstep, drag me away in handcuffs and I would be likely to receive a spell at one of Her Majesties Hotels for such behaviour.

    However, if someone visits my website, or any other website where one of my images may be displayed and someone stole a copy and used it, in law, this is still THEFT, not only under the Theft Act, but also under the current legislation of the Design, Copyright and Patents Act – yet if I was to walk into my local Police Station and report this act of theft, I would be laughed at, they would take NO ACTION whatsoever despite two (2) clear breaches of the law… taking offenders to court privately can be expensive, time consuming and often offer very little in the way of compensation.

    An Orphan Works Law can ONLY work if a Law is passed making it a CRIMINAL OFFENCE to remove Metadata from an image, or removing a watermark and there is a FREE or LOW COST depository for all image creators work to be archived and for them to be searched by individuals and corporations so they can see if a work is ‘in copyright’.

    If the work is in Copyright, the creator can be contacted and if it isn’t, a going rate fee for commercial use could be charged to help pay for such scheme.

    Holland has a very similar system…!

  26. Joe Fox

    Orphan works, or one particular instance has had a devastating influence on my business.
    A few years ago I did an exclusive shoot for a good local client of mine who is well known in local business circles. About six months later I received an irate phone call from the MD asking why I had licensed their exclusive images to a competitor.
    I hadnt.
    Someone had orphaned one of the images off their site, which in turn had been orphaned and used in a PR release sent to hundreds of companies worldwide including my client.
    In order to ‘prove’ my innocence I had to embark on costly legal processes to ‘prove’ the images had been stolen.
    I havent worked for that particular client since and I have no idea what damage it has done locally.
    Even after a couple of years the orphaned and even orphans of images stolen with metadata changed are showing up.
    Once the genie is out of the bottle it cant be put back in and I may as well find something else to do.

    Thats just one case, every time I license an image through an agency and it appears on a national newspaper site with metadata stripped I may as well kiss any future licensing fees goodbye as it is ripped off and used globally.

    Eventually you will run out of works to orphan. Its a lose lose situation for everyone.

  27. Paul Ellis

    Is anyone from the Cultural Heritage Sector going to be brave enough to post a countervailing argument to these comments from photographers? One not based on groupthink, assertion and the distorted data you hope to obtain from your risible survey, but actually by tackling the arguments made here head on and proving us wrong?

    Can you?

  28. Stuart Dempster

    We would like to thank everyone who has taken the time to complete the survey. We included the ‘other’ categorisation in it as we were keen to include creators’ views and opinions, and we have been interested to read the opinions submitted in the comment section here as well as via the survey.

    The purpose of this survey is to update the original research conducted in 2009 and published in the In From the Cold report. The inclusion of creators’ opinions is perfectly valid and legitimate. We note the absence of similar surveys originating elsewhere. Needless to say the debate over IP reform is vitally important to individuals, organisations and the country. The acceptance of evidenced-based decision making by the UK government does provide individuals and organisations with an opportunity to provide the evidence in an open and transparent way, rather than through ‘lobbynomics’. The inclusion of creators’ opinions in the survey will assist in the development. The purpose of the survey is to provide you with an opportunity to express evidence-based opinions too. Clearly, a number of issues have been raised in the comments as well. We would encourage you to consider submitting these opinions via the UK IPO online consultation which will be addressing ‘orphan works’ issues in due course. Where there have been comments regarding the actual survey and the original In From the Cold research, we will respond shortly in a blogpost.

  29. Jonathan Knowles

    I am a photographer primarily working in the advertising sector. For the last six years I have been in the Lürzer’s Archive ‘200 Best Advertising Photographers Worldwide’ books, and more recently have been included in the ‘100 Best in Photography’ book just published by Graphis (a well known creative magazine and awards organisation) in New York. In the UK I am probably best known for my creation of all the O2 bubbles, but my work spans as widely as the infusing tea bag on the back of a PG Tips pack to almost any image of a ‘perfect’ Guinness pint that you may see in a pub, as well as many other advertising campaigns.

    Last week I have been produced advertising for AEG, BBC Digital Radio, and a broken glass map of Britain for the Guardian, which has been seen in all the editions since Friday and will be appearing all this week in connection with their analysis pieces on the summer riots. In almost all cases I am commissioned by an advertising agency, rather than the client directly, and through their agencies my clients buy a licence to use my images for a specified time, in specified media, in specified geographical territories. In almost all cases, my client has exclusive use of the image licensed during the term that any licence negotiated is valid.

    Whilst all sectors of the creative arts will approach the issue of copyright slightly differently, they all seek the same thing from copyright; the right to control and protect their work (enshrined in European Human Rights legislation Article 1, Protocol 1), and if they so desire, to exploit it financially. Though financial exploitation is important to me as a professional, it is the control and protection of my work which is crucial. I have to be able to deliver exclusivity and guarantee controllability of any image to satisfy my clients’ requirements. I am sure that there are many orphan copies of my broken glass map of Britain already floating round the internet. In advertising and news circles, it has become an iconic image over the last few days. However, nobody except the Guardian has the right to use that image for commercial purposes. Under proposed Orphan Works legislation, anybody would be able to apply for a licence to use that image having found one on the internet with no identifying metadata. I assure you that the image left our studio with the metadata in tact, but it is easy to strip. In fact, the upload protocol to the BBC website illegally strips all metadata in direct contravention of the 1988 Copyrights, Designs and Patents Act and creates thousands of orphans every day. For an Orphan Work licence to be granted, the applicant would have to say that a diligent search had been carried out without finding the creator, and then pay a fee to some sort of collecting society. Aside from breaching all my exclusive contracts with the Guardian, this situation would also breach my human right to control my property.

    If the BBC, and other organisations like it, didn’t strip metadata, far fewer orphans would be out there on the internet. Metadata stripping has to be a positive action. It cannot happen by default. Somebody somewhere has taken the view that it is ‘OK’ to strip ownership information out of images. Bizarrely, preservation of this information would make the rights clearances that so many organisations complain about so much easier. All my images have my web address in them. Over the years, my phone number or physical address may change, but the chances are that my web address will always be there, or at least divert to where I (or my children) can be found.

    In our view, Orphan Works and ECL legislation breaches human rights law, and runs the risk of tearing up contract law as we know it. It is all very well saying that in the digital era digital businesses need easily to be able to get the licences that they need. It is quite easy to get a licence from me. Pick up the phone or email, and we’ll sort out a price:

    (a) if the image is available for licensing, and not under another exclusive licence to a client, or covered by a restrictive model release
    (b) if I want to sell a licence to the organisation / individual that wants to buy it
    (c) the price and contract terms are acceptable to both parties

    I have chosen not to licence certain images on the basis of point (b); for example, I would be very upset if the BNP were to use one of my images whatever price they were prepared to pay. But it is point (c) that becomes the sticking point in many cases, and on numerous occasions I have chosen NOT to licence a use because the client was not prepared to pay the price the image was worth. From the way I understand these things operate, collecting societies will not be so discerning.

    With regard to point (c), another recent example has been that Coldplay and Adele have chosen not to allow their recent music to be played on Spotify. Spotify may say that it ‘needs’ these licences in a digital world, but the truth is that they are not prepared to pay the proper licence fee expected by these artists. Coldplay and Adele are exercising their human right to refuse as they have the right to control their property; a right we feel is crucial to the running of a civilised society.

  30. Richard Mobey

    I note that in Stuart Dempster’s reply of the fifth of December , there is no comment regarding the inherent bias of this survey.
    The number of loaded or leading questions renders the survey useless in the context of empirical evidence.

  31. Stuart Dempster

    In order to reassure some commentators. We have stated in the blog post yesterday (last paragraph) that “Where there have been comments regarding the actual survey and the original In From the Cold research, we will respond shortly in a blogpost”.


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