AV News 180 - May 2010
It is likely that legislation on orphan works will emerge again in some form
within the next few years. Those pressing for change remain committed to
allowing works that are effectively 'locked' from use, because their ownership
has been lost, to be exploited. The Publishing Association has already stated
its intention to work with the new government, whoever gains power in May, to
revisit this and it still sees a licensing scheme as the optimal solution.
We can therefore expect much more argument and lobbying over the route
in which any new legislation is to take. Both sides will line up to argue their
case. Any new Bill will attempt to find a solution that manages to protect the
interests of those who wish to utilise a significant body of work, much of it of
some cultural significance, that is currently locked away; and the interests of
copyright owners, who would be unaware of the use to which their works are
being put and who face having their property rights usurped by a government
body.
It remains to be seen how these competing interests will be balanced in any
proposed legislation.
In the meantime, all photographers should try to prevent their works
becoming orphaned. One simple method of doing this is to ensure that anyone
seeking to use an image is required to include the photographer’s copyright
statement (or at the very least to attribute the image to the photographer) on
the image itself. The photographer should insist on this as a term of the licence
and (where possible) try to see the image in the context of how it is used to
ensure compliance. As it stands however, the Digital Economy Act has brought
about a significant shift in UK copyright law even without the section dealing
with orphan works.
Much of the Act is concerned with threat of person-to-person file sharing via
the internet. The problems this has caused for the music, film and television
industries are well known, but the problem exists for all copyrighted content,
including photographs.
The Act has introduced the possibility of a new sanction to seek to prevent
this method of copyright breach. Ofcom, the regulator, has been given the
power to draw up a code of practice both for internet service providers and for
copyright holders to create a new procedure of 'Copyright Infringement
Reports'. It is hoped that these reports will discourage people from unlawfully
sharing copyrighted works on the internet. If people know they are being
watched and reported on, then the government thinks it likely that such activity
will lessen.
If however this alone does not work, the Act also gives Ofcom the power to
draw up so called 'technical measures'. These measures must first be
considered and passed by Parliament before implementation, but the Act
envisages that they will involve limiting the internet use of those who have
breached copyright through unlawful file sharing.
The Act is by no means the last word in bringing copyright laws into the
digital age. There is currently no real consensus about where the balance
between the rights of consumers of copyrighted works and those of rights
owners lies.
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