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April 29, 2013

UK passes Enterprise and Regulatory Reform Act: All your pics now belong to everyone!

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We have all uploaded photos to Facebook, Instagram , Pinterest, Flickr and hundreds of other sites. Taking a picture of your loved one, baby, anything. Unless you put your details on the pictures similar to this,

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Then you could lose any ownership to it.

But changes are now in place as an UK Act of Parliament namely the Enterprise and Regulatory Reform Act, which received Royal Assent last week, marks a huge shift in power away from citizens and towards large Worldwide corporations.
You’ll probably want to read this, because the rules on who can exploit your work have now changed radically, overnight. Amateur and professional illustrators and photographers alike will find themselves ensnared by the changes.

How so?
Previously, and in most of the world today, ownership of your creation is automatic, and legally considered to be an individual’s property. That’s enshrined in the Berne Convention and other international treaties, where it’s considered to be a basic human right. What this means in practice is that you can go after somebody who exploits it without your permission – even if pursuing them is cumbersome and expensive.
The UK coalition government’s new law reverses this human right. When last year Instagram attempted to do something similar, it met a furious backlash. But the Enterprise and Regulatory Reform Act has sailed through without most amateurs or semi-professionals even realising the consequences.

The Act contains changes to UK copyright law which permit the commercial exploitation of images where information identifying the owner is missing, so-called “orphan works”, by placing the work into what’s known as “extended collective licensing” schemes. Since most digital images on the internet today are orphans – the metadata is missing or has been stripped by a large organisation – millions of photographs and illustrations are swept into such schemes.
For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work – the user only needs to perform a “diligent search”. But since this is likely to come up with a blank, they can proceed with impunity. The Act states that a user of a work can act as if they are the owner of the work (which should be you) if they’re given permission to do so by the Secretary of State and are acting as a regulated body.
The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content-scraping industry, an industry that doesn’t have to pay the originator a penny. Such is the consequence of “rebalancing copyright”, in reality.

Excerpt from the Enterprise and Regulatory Reform Act. Full Act at the link below

Modernise the UK’s copyright regime to promote innovation in the design industry, encouraging investment in new products while strengthening copyright protections. Creating a level playing field for collecting societies and the thousands of small businesses and organisations who deal with them by strengthening the existing regulatory regime. For the first time orphan works will be licensed for use; these are copyrighted works for which the owner of the copyright is unknown or can’t be found. There will also be a system for extended collective licensing of copyright works;

What now?
Quite what happens next is not clear, because the Act is merely enabling legislation – the nitty gritty will come in the form of statutory instruments, to be tabled later in the year. Parliament has not voted down a statutory instrument since 1979, so the political process is probably now a formality.
In practice, you’ll have two stark choices to prevent being ripped off: remove your work from the internet entirely, or opt-out by registering it. And registration will be on a work-by-work basis.

Photo rights campaigner Paul Ellis said:

“People can now use stuff without your permission, to stop that you have to register your work in a registry – but registering stuff is an activity that costs you time and money. So what was your property by default will only remain yours if you take active steps, and absorb the costs, if it is formally registered to you as the owner.”

These consequences appear possible.
One is a barrage of litigation from UK creators – and overseas owners who find their work Hoovered into extended collective licensing programs. International treaties allow a country to be ostracised and punished. The threat has already been made clear from US writers and photographers, who’ve promised “a firestorm”. Reciprocal royalty arrangements can also be suspended, on the basis of “if you steal our stuff, UK, we won’t pay you”. In addition, a judicial review, based on the premise that the Act gives Minister unconstitutional power over the disposal of private property, is not out of the question.
Secondly, the disappearance of useful material from the internet is likely to accelerate – the exact opposite of what supporters wish for. We recently highlighted the case of an aerial photographer who’s moving work outside the UK, and we’ve heard of several who are taking their photos away from the web, and into lockers. The internet is poorer without a diverse creative economy – because creators need legal certainty of property rights.
I can see the European court of human rights receiving lawsuits which could force the UK Government to repeal the Act.

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Dave Thornton

Senior Editor

Senior Editor
Been involved in technology for many years, more than I care to remember. Live in Dundee, Scotland. I like Android, Windows Phone OS, BlackBerry OS and iOS, and love writing about all things techie. Currently have a Honor 6+, Elephone P6000, Nexus 5, Chrombook C720, HTC One M7, Nokia Lumina 625, Microsoft Lumia 435, Blackberry Q10, HTC Hero and iPad mini