What are exceptions to copyright?

If you create something, you automatically own it and it becomes your copyright, which literally means ‘your right to authorize copying of your creation’. This right is granted to you by the Berne Convention and is yours alone, unless you’ve signed it away in writing.

Copyright is a property right: Berne says: ‘This protection shall operate for the benefit of the author and his successors in title.’

Copyright can have exceptions: for certain defined uses, you lose ‘the exclusive right of authorizing the reproduction of these works’ and anyone can use them for these purposes without first asking your permission, or paying you any money if you would normally require it.

Exceptions to copyright are not trivial; as the European Court of Justice puts it: a copyright work is not just property but also ‘the author’s own intellectual creation reflecting his personality’. It represents its creator. This is why copyright includes ‘moral rights’ and why your copyright is also your human right, as is your right ‘not to be arbitrarily deprived of your property’.

What are 'orphan works'?

If someone finds one of your photographs and wants to use it for a purpose not covered by an exception, they can't without asking you first. The Government intends to change all that by allowing anyone to use ‘orphan works’ - a photograph, illustration, or other copyright work they have found whose owner cannot be contacted for permission to use it, even though the owner might know perfectly well where that work ought to be.

If they can't trace the owner they will be able to do whatever they like with it after paying an arbitrary fee to a UK Government-appointed ‘licensing body’. If you are the orphan's owner you'll never know unless you happen to find it being used in this way, in which case you should be able to claim some money.

What is 'Extended Collective Licensing'?

Normally, photographers engage in ‘primary’ licensing, negotiating with our clients directly, or via our appointed agents. For a very few uses such as photocopying in libraries and schools it’s impractical to issue individual licenses for each use, and so a ‘collecting society’ can issue ‘collective licenses’ for these ‘secondary' uses, the proceeds of which are split between the society’s members. This is how DACS’ Payback scheme operates.

An ‘Extended Collective License’ (ECL) would allow the collecting society to license the property of non-members, including ‘orphan works’. Even if they can trace you, someone wanting to use your photograph still wouldn't have to contact you for permission to use it - they could go to a collecting society (that you might never have heard of) and ask them for an ECL instead.

They’ll pay an arbitrary fee and be able to do whatever they like with the photograph, without asking you first or paying what you would have charged, whether or not you would have agreed to your photograph being used in the first place. And again, you’ll never know unless you happen to find it being used in this way, in which case you should be able to claim some money.

ECL turns the normal working of copyright and markets on its head.

Who wants this?

The Academic Sector (schools, colleges, Higher Education and their corporate sponsors) simply wants to be able to use your property for free, as do large Internet corporations and ‘tech startups’ - the supposed saviors of the UK economy - most of which end up being bought out by those large Internet corporations.

The Cultural Heritage Sector (libraries, archives, museums, the BBC) say they have a great number of ‘orphan works’ in their keeping, which they claim represent a ‘goldmine of content’ going to waste. Because most of these ‘orphan works’ exist on traditional media they want to digitize them to make them ‘publicly accessible’ and fulfill their ‘public service remit’.

Both of these sectors want to be able to make money (and allow their commercial partners to make money) from ‘orphan works’. They’re ‘a goldmine of content’, remember?

Unfortunately for them they don’t yet have the right. So, they and their commercial partners (those Internet corporations) have mounted an intensive lobbying campaign to convince governments worldwide the ‘orphan works’ in their keeping are somehow a ‘special case’. The EU has fallen for this and introduced an Orphan Works Directive which the UK must implement within two years, allowing the Cultural Heritage Sector to use ‘orphan works’.

However, the UK wants to go further than this and allow anyone to make commercial use of ‘orphan works’. 2010’s Hargreaves Review was charged with seeing how UK copyright law could be changed to stimulate economic growth. Despite asking no direct questions about copyright exceptions, ‘orphan works’ or ECL, Hargreaves recommended that the UK should introduce the maximum exceptions to copyright allowable under EU law, schemes to allow use of ‘orphan works’ at negligible cost, and ECL. He ignored every plea from creators for strengthened protections except one: the new Small Claims track in the Patents County Court.

The Government accepted Hargreaves’ recommendations and set up a Consultation that occupied most of 2012, and which at the time of writing has yet formally to report. Even though the economic projections it’s based upon have conclusively been discredited the Government has gone ahead with legislation anyway, in the name of ‘growth’. It’s strange, that: most economists agree that growth comes from enabling people to trade their property, not from confiscating it from them.

What is the ‘Copyright Hub’?

An idea which has been developed by Richard Hooper to become an overarching rights registry and trading platform for digital media. It’s an industry-led market-based licensed solution to most of the problems copyright exceptions, ‘orphan works’ and ECL are supposed to solve, has solid support across the creative industries, and will be functional within months.

What do others think?

A letter sent to Parliamentarians and signed by an unprecedented number of creative industries bodes ranging from corporations to individuals describes the Government’s proposed legislation as ‘premature, ill thought-out, constitutionally improper and in breach of international obligations’. Foreign rights owners agree: US photographers forecast ‘a firestorm of litigation’ if the legislation goes ahead.