New UK Act May Allow Free Commercial Usage Of Orphan Works Including Photographs

Here is a fact that you should know by now. Images on the net are not up for grabs, even if you don’t know who they belong to.

New UK Act May Allow Free Usage Of Orphan Works

This means for example that if a newspaper found a photograph online, it has to located its copyright owner (sometimes it’s easy, if it was found on a Flickr gallery, but sometimes it’s harder, it was on that newsletter-you-subscribed-to-when-they-offered-free-Cheetos). Nevertheless, no one could have used your work if they could not obtain permission from you.

Last night, a new act in the UK, called the “Enterprise and Regulatory Reform Bill” receives Royal Assent which basically means that it is on its way to becoming a law.

Basically that act changed the UK copyright laws to allow commercial use of orphan works including photographs.

What? Why!

According to a UK Government press release, UK’s Business Minister Jo Swinson explains that:

  • “The measures in the Enterprise and Regulatory Reform Act will support the UK’s enterprise culture and help make it one of best places to do business.
  • It will put in place fairer systems for directors’ pay, create a world-class competition regime, support the Green Investment Bank and improve our employment system. This will help businesses to start up, grow and employ more people.”#

Why should you care?

Because that act changed the UK copyright laws to allow commercial use of orphan works. Here is how The Register Describes it:

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.”#

Embedding Copyright Data In Photographs

You may say that this is not an issue for you because you diligently update each of your images with the relevant copyright IPTC codes, but apparently a lot of the image hosting services out there strip out those codes, leaving the image an “Orphan Work”. Here is a chart made by the IPTC organization that shows how many of the popular sites are stripping down the copyright data

New UK May Allow Free Usage Of Orphan Works

As you can see stripping down the IPTC tags is pretty common with big services like facebook, Flickr and Twitter. They may be associated to your account when you upload them. But once they start circulating the web, it is not trivial to trace them back to the original creator.

What Makes a Photo Orphan Works

A photo becomes orphan works when a potential user can not trace the photo back to its copyright owner after performing a diligent search. But diligent search is not defined and while there are services that can help you track photos online like tin-eye and Google image search, finding the owner of an online photo is almost impossible.

Is Watermarking The Solution?

If you want to be 100% sure that your info is always with the images, than probably yes. While removing a watermark is technically possible, it is definitely a deliberate act.

Another option is to watermark photographs in an unobtrusive way that blends in with the picture. While it is only suitable for some types of images, it is both harder to remove and looks better than the usual watermark. Here is a tutorial on this method by Klaus Herrmann.

I would love to hear your thoughts on this.

[Enterprise and Regulatory Reform Bill receives Royal Assent | gov.uk]

  • Dan Bartosik

    And what exactly will prevent me from saying I got any image from a UK representative under this law?

  • Jon

    This is no different from the orphan works bill that was released in the US a while back.

    If you are concerned about this for your images, just watermark them so they can find your site / social profile. Also if you have a portfolio site and your images are indexed by google then they can easily be found using a google image search.

    Companies have to prove they did search for the owner so if you have done those two basic things they should have no problem finding you.

    So basically nothing to worry about.

  • jay sna

    I think a law that allows for free access to orphaned photos is a good thing. The problem is that its much too easy for someones photos to become orphaned without their intent or consent. If that can be fixed, this is a non-issue. As for watermarking, that’s not for me. I’m not a commercial photographer and stamping a logo on my images makes them look silly. Not to mention how easy they are to remove with a few minutes of PS work.

    • Doug Birling

      If you have a watermark, even a small one in the corner, my bet is reputable agencies would then track you down or not use the image. I’m not sure an image with a watermark can even be considered “Orphaned”?

  • http://www.facebook.com/todd.gardiner Todd Gardiner

    This article originated on The Registry, a UK tabloid about tech news. The author, Andrew Orlowski, has been described by a few as a “tech news troll”, and also loves writing endless articles doubting climate change. (His article list on The Registry: http://search.theregister.co.uk/?author=Andrew%20Orlowski)

    What kind of news article uses this sort of language?
    “Amateur and professional illustrators and photographers alike will find themselves ensnared by the changes, the result of lobbying by Silicon Valley and radical bureaucrats and academics.”

    Also, those orphan works are not free. UK users are still required to license them with the government, paying into a fund. Further, this bill only allows statues to be written covering this. There are many ways in which orphan works could be defined that would not make this a “land-grab”.

    So yes, pressure on lawmakers is needed at this point to make this truly workable, but it is hardly a crisis or a “done deal”.

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