Using Images Without Permission Becomes Legal In UK

Posted on 5/8/2013 by Jim Pickerell | Printable Version | Comments (3)

United Kingdom photographers are up in arms over the latest action by their government to make it legal for consumers to use their images without their permission.

The Enterprise and Regulatory Reform Act recently passed in the U.K. provides a way to legally use images found on the Internet when the copyright owner cannot be identified or contacted. Such images are known as “orphaned works.” It is not entirely clear, but the act may also make it possible to use images found in printed products if contact information for the owner cannot be easily found.

Suppose someone finds your image on the Internet and decides he wants to use it. Under the new law all he is required to do in order to legally use the image is be able to demonstrate that he has performed a “diligent search” to find the owner. What is a diligent search? That still hasn’t been defined. Will it be enough just to look at the “file info” box of the image file? Of course, we know the vast majority of images currently on the web have no information in the file info boxes. And, even when creators populate those boxes before uploading their images most social media sites strip the information.

An independent entity called the Copyright Hub is scheduled to launch this summer and become a one-stop online space for consumers of content to obtain information about rights ownership and copyright licenses. The Hub will determine what qualifies as a sufficient search. If the image is deemed to be orphaned the potential user will be required to pay a “license fee,” established by the Copyright Hub, for rights to use the image. It theory the fee will be based on “market rates.” But, it is not clear whether the market rate will be based on the intended use of the image, a flat fee regardless of use or the lowest fee any user is willing to pay.

The Copyright Hub will be built and led by U.K. music, publishing, audio-visual and images industries. The initial twelve organizations providing services are: the BBC, the British Association of Picture Libraries and Agencies (BAPLA), Copyright Clearance Center (CCC), Copyright Licensing Agency (CLA), Federation of Commercial Audio-visual Libraries (FOCAL), Getty Images, the Newspaper Licensing Agency (NLA), Pearson, the Picture Licensing Universal System (PLUS), PPL and PRS for Music.

The Hub will be designed to act as a portal with intelligent connections to a wide range of websites, digital copyright exchanges and databases in the U.K. and globally. Its goal is to streamline copyright licensing by providing a marketplace for various rights without geographical limitations. Amongst its proposed features are ease of use and low transaction costs. While creators may have their names and contact information in various databases, it is not clear how an image that does not have a creator’s name attached to it will be identified as belonging to that creator.

There is a concern that the Hub may not be all that motivated to find creators, since it will earn revenue when the creator is not found. If a potential user comes to them looking for a creator’s name or contact information there may be an incentive to do a cursory search and then price the usage. This could particularly be a problem if the potential user comes from the United States or some other country and not the U.K. since the Copyright Hub envisions offering a global service.

The U.K. government has provided the Hub with seed funding of £150,000 (approximately $233,430). When the Hub concept was first being considered KPMG was asked to analyze what would be required to develop such an operation. The KPMG report suggested that it could take over two years to build the Copyright Hub and depending on functionality and funding available it could cost £10-20 million.

Presumably, if customers go to the Hub and a “diligent search” produces contact information for the creator the license would be negotiated in the normal manner by the creator. In those cases where the user pays a license fee to the Copyright Hub the rights holder may claim that money (minus some type of Hub service fee) at a later date, if he becomes aware of the use. Of course the amounts collected will probably be so small that it may be impractical for a rights holder to jump through all the administrative hoops required to prove ownership and collect the funds. One would expect that most of the money collected will never be claimed by any rights holder.

The Act also fails to prohibit sub-licensing, so someone else can grab the creator’s work for Hub fees and license the work themselves for higher fees or use it to generate advertising revenue. This gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny.

The government says the act makes "copyright licensing more efficient". Photographers and stock agencies have set up and respond, “Yes, if by 'efficient' you mean no longer having to find, get permission from, and pay property owners before exploiting their property.“ Stop43 claims the legislation is, “premature, ill thought-out and constitutionally improper". There is also a question as to whether this new U.K. law is counter to the country’s obligations as a Berne Convention treaty signer.

Specifics of the legislation are still not known and expected to come later in the year, in the form of secondary legislation called a “statutory instrument.” The legalized copyright infringement schemes enabled under the ERR Act will not come into force until the regulations controlling them are enacted.

UK photographers place much of the blame for this act on Silicon Valley and U.S. business that lobbied hard for these changes.

For questions and answers about the Hub check out this link.

For David Riecks explanation of Six Ways to Keep your Digital Images from Becoming "Orphan Works" check out this story.

For a good series of questions and answers on this subject check out Andrew Orlowski's post here.

Copyright © 2013 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


  • Giancarlo Zuccotto Posted May 10, 2013
    Dear Jim,

    Your piece on the new Enterprise and Regulatory Reform Act 2013 (ERRA) is very interesting, but perhaps some of the conclusions you draw are premature. We spent a day with our lawyers going over the relevant part of ERRA, you may be interested to hear our conclusions.

    We should remember that what ERRA does is add sections to the Copyright, Designs and Patents Act 1988. As far as photographs are concerned, nothing in CDPA has been removed. ERRA adds clauses to allow future regulations to be enacted – these regulations are not yet written so we don’t really know what they will say. ERRA provides for what they must say and for what they may say. Most importantly, for those of us continuing to lobby for the protection of rights, is Section 116D(5) – any such regulations must be laid before and approved by both Houses of Parliament before they become law.

    What else MUST the regulations do?

    They must allow that a work qualifies as an orphan after a “diligent search” for the owner has been made. English law is in the habit of being very pedantic with words – ‘diligent’ will mean something far more rigorous than simply looking at an IPTC header and running it through Google Images. The regulations could be strict enough that it makes sense for commercial companies to set up a diligent search service, much as a patent agent will do the ‘prior claims’ legwork for an inventor.

    The regulations must provide licenses to have the same effect as if granted by the missing owner, nothing more, they may not give exclusive rights and they may not be granted to a person authorised to grant licences. Sorry, Jim, no content-scraping allowed!

    In the provisions for extended collective licensing (the so-called ‘Instagram Act’), the regulations must specify the types of work to which the regulations apply and the acts that are permitted to be done. The regulations must provide for the copyright owner to be able to limit or exclude the grant of licences, so the owner can simply opt out of the process. The speed with which users of social networking sites discover changes with which they disagree and disseminate the way of opting out is well documented.

    Finally, with respect to the central licensing body (the ‘Copyright Hub’), the regulations must provide that any royalties collected are subject to the deduction of administration costs, how long such royalties are kept and what happens to them after that – do they revert to the Crown as bona vacantia or do they go elsewhere? The regulations must also provide for what happens to already granted licences if the true owner turns up (orphans) or withdraws from collective licensing.

    Everything else in the yet-unwritten regulations MAY be done, they are not a requirement of the ERRA.

    As it stands, ERRA appears to us to enable more material to be monetised while providing statutory protection and a means for the owner to claim the income at a later date. Our focus is now on the regulations being drafted, to ensure that they meet the requirements of protection in ERRA while working fairly with the industry as a whole.

    Gary Evans
    Intellectual Property Manager
    Science Photo Library

  • Jim Pickerell Posted May 10, 2013
    Gary: Thanks for the information about the “statutory instrument” that still has to come outlining the regulations. I would hope that the regulations on the operations of the "Copyright Hub" are as tight as you suggest. I would also hope that the operating board of this organization will include some creators of copyrighted works, not just agents and publishers.

  • Helen Gilks Posted May 15, 2013
    Dear Jim,

    I have read your article on the Enterprise and Regulatory Reform Act with interest, but would like to add some comments from BAPLA (the British Association of Picture Libraries and Agencies) in support of those posted by Gary Evans of SPL, which hopefully will give your readers a more balanced view on this new UK legislation.

    The first thing to state is that the detail of this new act is yet to be finalised, so to that extent your article is somewhat premature as well as on several points inaccurate. Much of what you state as ‘fact’ is yet to be finalised, and is currently being discussed in working groups where BAPLA has strong representation.

    The most important point to make is that the role of the Copyright Hub is to direct people to those who can license content. It is not intended to take existing business from any sector by licensing content away from existing copyright holders and their representatives. It will also direct users to resources that help them identify content, and as such will hopefully become specified as part of diligent search when secondary legislation is passed. Also, importantly, the Copyright Hub is intended to be voluntary, opt-in and non-exclusive.

    BAPLA represents more than 200 UK photo agencies and picture libraries and has worked very pro-actively on behalf of picture libraries and the photographers whom they represent to influence this important legislation. We have worked tirelessly, both in the lobbying stage and through consultation with the UK Intellectual Property Office, to maintain the position of sign-posting, not licensing via the Hub, and also to support the development of resources which can be linked to the Hub to help with the identification of Orphan Works. To date, this work appears to have been successful, but there is still a long way to go. BAPLA will continue to work on the Hub for the benefit of the image sector, not only to defend its rights but also to build new opportunities for the future where they are appropriate to our sector.

    To address some specific points:

    "The Enterprise and Regulatory Reform Act recently passed in the U.K. provides a way to legally use images found on the Internet when the copyright owner cannot be identified or contacted."

    This is not true – it was actually conceived as a way for cultural heritage institutions to make use of their archive of analogue content after a thorough diligent search (covering an extensive variety of sources) for each work and approved by a government-appointed body.

    "An independent entity called the Copyright Hub is scheduled to launch this summer and become a one-stop online space for consumers of content to obtain information about rights ownership and copyright licenses…Its goal is to streamline copyright licensing by providing a marketplace for various rights without geographical limitations."

    This 'entity' is a body of UK-based organisations covering a wide range from the creative industries brought together by Sir Richard Hooper, with a remit of discoverability for copyright works and those authorised to license such works in the UK. At this point its scope is a national service, as copyright is currently limited to territorial borders.

    "The Act also fails to prohibit sub-licensing, so someone else can grab the creator’s work for Hub fees and license the work themselves for higher fees or use it to generate advertising revenue. This gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny."

    We have had UK Government assurances that the ERRA does not permit sub-licensing.

    You can find more detailed information regarding the ERR Act on the BAPLA website here:

    I hope this helps to allay some of the fears that have been spread in the media and photographic community with regard to this new legislation. Its exact impact will not be known until the detail of the Act is written and the Copyright Hub is in place. BAPLA will continue to be closely involved in that process.

    Tim Harris, Nature Picture Library,
    Vicechairman, British Association of Picture Libraries and Agencies

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