The British Association of Picture Libraries and Agencies is calling for clause 116B of the proposed U.K. Digital Economy Bill to be scrapped. According to BAPLA, the clause, which deals with extended licensing schemes, can translate to photographers losing control over how, by whom and at what price their work is used. Additionally, BAPLA expressed some concerns over the directly preceding orphan-works clause of the proposed legislation.
The Queen introduced the Bill on November 18. The goal of the legislation is to strengthen communications infrastructures to equip the U.K. to compete and lead in the global digital economy. It is the second legislation that attempts to take on the issue of orphan works, on the heels of a failed U.S. proposal.
Clause 116B reads: “The Secretary of State may by regulations provide for authorising a licensing body to grant copyright licences (within the meaning of section 116) in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts.” BAPLA says this language, which would allow bodies outside the industry to grant copyright licenses, will be wholly detrimental to the photography industry.
BAPLA consultant Linda Royles explains that there are many instances where photographs must not be used because of associated rights issues: for example, when a photographer desires to prevent the use of his or her creation in a different country or when use of depicted buildings requires special releases. “Extended Collective Licensing carelessly assumes that all images can be treated equally,” she said.
The Bill provides an opportunity to opt out of blanket schemes, but BAPLA says this does not mean a photographer’s work will cease to be used in extended collective licensing agreements. “It just means that when you opt out you lose the right to claim the money that is being collected for the use of your work,” explains the organization.
BAPLA chairman Paul Brown is concerned that the clause could affect the very principle of direct licensing and creators’ rights to control their economic and moral rights: “Imagine not being able to instruct anyone how you want your work marketed or respected. Imagine not being paid directly for an image usage, but having to claim for a random share of an unknown pot of money.”
Though with considerably less specificity, BAPLA also objected to how the proposed Digital Economy Bill deals with orphan works. Clause 116A(1) reads: “The Secretary of State may by regulations provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner.” BAPLA said it supports calls for changes that would address orphan-works issues without prejudicing photographers’ rights.
Notably, the overall consensus is that the U.K. bill favors creators—at least with its promise to pursue illegal file sharing, a centerpiece that is being welcomed by the entertainment and music industries and criticized by a host of other stakeholders. Chief among the objections to the bill is not necessarily one specific issue but the enormous power it places on one individual: Peter Mandelson, First Secretary of State. As evidenced by the clauses cited here and much of the other language in the bill, Mandelson stands to have near-unlimited power to enforce copyright by bringing into law any measure he sees fit, from granting copyright licenses to imposing new penalties.