My friend Robert Krausankas of copyright-trolls.com sent me a link to an article about a new UK Copyright law that could have a devastating impact on photographers’ rights. The new Act(called the Enterprise and Regulatory Reform Act, which received Royal Assent) states that all “orphaned works” can be used for free by anyone. An orphaned work is any creative work (not just photos) whose authorship cannot be attributed with due diligence. Since that will rarely happen to films, TV shows, recorded music, and such other works of art, this law will have its greatest immediate impact on digital photography. The article, called “IS the UK Government Trying to Kill Off Photographers?,” can be found at photothisandthat.co.uk.
Imagine if I re-post a digital image sent to me by a friend of mine but I do not attribute it to anyone, and a third party sees it and likes it. If I don’t respond to that third party’s requests about who owns the copyright in the photo, that image could be considered an “orphaned work.” That third party could then use it on a website, a TV commercial or however they see fit. Considering the millions of images uploaded without attribution or connection to the copyright holder, this could cause UK photographers to lose valuable copyrights.
Particularly frustrating for photographers is that many social media websites strip away the metadata imbedded in the photo which shows the authorship. Even watermarking the image only affords some protection as that can be deleted or cropped out and then re-posted and found that way by a third party with no knowledge of the watermark or metadata.
What’s unusual about this bill is that UK copyright law already favors a person who used a work of art innocently – UK copyright law states that the only recourse against an innocent infringer is that they must cease and desist from use of the work and that the copyright holder is not entitled to damages. So why make it even harder for artists to protect their work?
I have been fighting digital image warehouses like Getty Images for the past five years over their extortionate, threatening letters to innocent folks who did not know they were infringing on anyone when they used an image put on their website by some web developer they hired or bought from a website template company. I have often lamented on the site extortionletterinfo.com for protection for US innocent infringers like the one in the UK Copyright law. (Here, even innocent infringers are subject to a damages claim). But this goes too far. At the very least, the law should include a provision that only the copyright holder can delete metadata they inserted to establish authorship. The author of the UK article, Edmond Terakopian, suggest this as well. He also asks UK citizens to fight the passage of the Act by contacting Members of Parliament who have to vote it in before the Act can become Law. Will this is an admirable plea, it appears futile as he also reports that no Act which receives Royal Assent has failed to become legislation since 1979.
Many US photographers have their works published abroad and hold copyrights in the UK. They would be wise to register their images in the UK Copyright Office as further protection against losing their rights do this unnecessary and overbroad piece of legislation.