UPDATE 13.04.10 - The Digital Economy Bill - Clause 43
As more details have become available regarding the letter issued by BAPLA on 25th March purporting to represent all of the joint signatories, including the BIPP, we have become increasingly concerned about its lack of accuracy. This taken with subsequent conflicting statements leaves the BIPP with no alternative but to distance itself from the views expressed by BAPLA with regard to Clause 43 of the Digital Economy Bill and its consequences.
EPUK clearly has similar concerns as it published an open letter to BAPLA this afternoon asking eight questions - we await with interest BAPLA's answers to these questions: http://www.epuk.org/News/947/an-open-letter-to-bapla
The wording of the original letter is here: <http://www.jeremynicholl.com/blog/2010/03/29/getty-bapla-uk-digital-economy-bill/>
BAPLA's final version is here: <http://www.bapla.org.uk/index.php?option=com_content&task=view&id=46&Itemid=89&favm=3595&stype=story>
Further details are available at: http://www.jeremynicholl.com/blog/2010/04/12/bapla-big-fat-lie/
Digital Economy Act
The full text of the new Digital Economy Act 2010 can be found at: http://www.opsi.gov.uk/acts/acts2010/ukpga_20100024_en_1
UPDATE 09.04.10 - The Digital Economy Bill - The Outcome
Spending two evenings in a row in the course of one week watching debates in the House of Commons is not my idea of fun but this week was different. I watched online, along with thousands of others to see our MPs debate the controversial and highly contentious Digital Economy Bill. Those unable to watch followed progress on Twitter where the tag #DEBill ranked 3rd worldwide.The interest in the matters of Parliament was unprecedented as over 20,000 people wrote to their MP, over 10,000 telephone and on the day of the 2nd Reading over 5,450 people had tweeted, urging MPs to vote against it.
Many of course were concerned about the effect that this wide-ranging bill would have on their use of the Internet and their freedom to download music, films and other copyrighted content but for photographers, the biggest concern was that relating to Clause 43, formerly clause 42, which related to Orphan Works and Extended Licensing. Our concerns over this Clause have been well documented and we joined with Stop43.org and other visual arts representative bodies in opposing this.
A bill that attempts to crackdown on copyright infringement is, after all, in our interests as visual artists as it would seem to offer more protection to our work. However, the way this bill had been put together and the wide range of areas it attempted to cover meant that our primary concern was that with the speed this government was trying to rush this bill through before an election that it would not receive the attention and scrutiny it needed and that this clause would simply go through as part of the wash-up process.
Despite all the public attention, the mainstream media chose to ignore what was happening with this bill. We can only assume that to be because it served their interests for it to go through - after all, with all those 'orphaned works' they would be free to use them as they saw fit.
On the evening of the 2nd Reading, only 40 MPs attended with only 10 remaining in the chamber by the time the vote was needed just two hours later. Although numerous MPs, from all parties and including Labour backbenchers, stood up and said how appalled they were at the arrogance of the government in thinking they could push this bill through and the lack of respect being shown to the House. Others said that that the bill was badly written and severely flawed and accused the government and shadow front-benchers of collusion and of there being a 'stitch-up', but when it came to the vote none objected. When the 3rd reading took place, a few more MPs attended and there was at least some form of debate albeit mostly focussed on the details of wifi security measures and how many letters would be sent by ISP's to customers thought to be infringing copyright. This led from a minister who we subsequently discover does not even understand what an IP address is or how the Internet works.
Several backbenchers stood up against their own whips and argued against the 'draconian measures' being outlined - some had taken the time to listen to public opinion and proposed amendments but mostly these failed. Eventually they ran out of time and when the vote was taken, this time there were objections, mostly due to clause 43 which the Conservatives had warned they would not allow through without amendment. When the hundreds of MPs appeared from the dining room in time to take the vote, the bill was passed but Clause 43 was dropped, supported by members of each party along with a couple of others.
The bill went on to have its final reading in the House of Lords yesterday, where some further debate took place and where several of the peers commented on the disrespect shown by the government in trying to push this bill through without adequate time for full debate in the 'other place' (the Commons) and that the proposed amendments should not have come back to them. They were also not happy about Clause 43 having being dropped. Despite some division, and some amendments not receiving approval, the bill was passed and went on to receive Royal Assent which remarkably was given within a matter of a couple of hours.
Undoubtedly there will be much further public debate on this and the results of the General Election on May 6th may impact it further - a new government may repeal the Act or revise it . A hung parliament, which is looking increasing possible especially after the disillusionment of the events this week, may mean it never gets put into practice but regardless, one thing is for sure and that is that our use of the internet and our responsibilities for doing so and for consuming content will change.
What does the Digital Economy Bill mean for photographers? Follow up article next.
Denise Swanson FBIPP 09.04.10
08.04.10 - Digital Economy Bill - Third Reading
We have been carefully observing events regarding the Digital Economy Bill as it has made its way through the Commons. As suspected, the full debate and scrutiny promised by Harriet Harman did not materialise but the 3rd reading finally got under way around 9pm last night - left until last.
It was clear, almost from the start, that some MP's had finally started to realise just what this flawed bill was about and what it meant - due in some part to the thousands of letters and phone calls they admitted receiving and also due to the campaigning by Stop43 and the rising pressure brought about by an incessant stream of protests and lobbying on Twitter (using the #DEBill hashtag) of which we were part. What also became apparent however was that whilst some MP's like Tom Watson, David Drew and Don Foster had at least taken the time to try to find out more about what was involved, and tried to put up some very good arguments and some alternative amendments none of those present really had much idea of what it was they were debating. One twitterer likened it to listing to a bunch of five-year olds discussing quantum mechanics and they were not far wrong. So when it came to the votes, each amendment was dropped, one by one as they all backed down and towed the party line.
They had spent so long debating the finer points of wifi security measures, peer-to-peer networks, sending letters and the impact of ISP's being able to close down the internet connections of suspected illegal file-downloaders that by 11pm there was insufficient time left to debate the other clauses. As John Redwood had already announced during the 2nd reading that the Conservatives could not support clause 43 in its current form they and some of the Labour backbenchers, plus a few Liberal Democrats, voted against. A division was called and they all left, returning some 10 minutes or so later with almost 200 other MPs who didn't attend the debates but who had been told how to vote despite numerous accusations of the whole bill being a front-bench stitch-up which was being pushed through regardless. 189 voted in favour only 47 voted against.
At least Clause 43 was dropped so visual artists and photographers have won the war we have been fighting.
Denise Swanson FBIPP
07.04.10 Clause 43 (orphan works) dropped from the Digital Economy Bill
Clause 43 (Orphan Works) has been dropped from the Digital Economy Bill. Clause 46 did however go through along with most of the other clauses but at least we won the main battle. Denise Swanson FBIPP
06.04.10 - Update on Digital Economy Bill Second Reading
The Digital Economy Bill had its' 2nd reading today, the bill has gone through, with no opposition, and will enter committee stage tomorrow (07.04.10) for the 3rd reading and final vote.
After spending the day lobbying and helping to try to get people to contact their MP's, some success in that 20,000 people wrote or emailed their MP and over 10,000 phoned their's and it became the top trending topic on Twitter, although it didn't count for much. Denise Swanson FBIPP listened to the entire reading and tweeted as appropriate the key points - see www.twitter.com/thebipp
The reading seemed timed perfectly to be railroaded on the same day the election was called, out of 646 MP's only 32 turned up with only 10 present for most of the 'debate', a few drifted in 5 minutes before the vote and despite numerous objections raised to having insufficient time for full debate and the bill being severely flawed, there was not one single vote against.
Public opinion is quite high and discussion on Twitter is still going on.
A joint statement in response to the proposed Digital Economy Bill has been issued.
The UK Photography Industry has created a unique alliance to strengthen our voice on Photographers’ Rights. Representing the vast majority of photographers, artists and photographic collections/agencies within the UK, the group has issued a joint statement in response to the proposed Digital Economy Bill. Click on the link below to open a pdf file of the full statement. It is vital that we present a united response to issues affecting photographers’ rights and this is a major step forward.
The Commons Second Reading is scheduled for 6 April - write to your MP today
With the potential to have the biggest impact on this industry since the 1988 Copyright, Designs & Patents Act, the Digital Economy Bill reached the reports stage in the House of Lords yesterday, where it will need to be read again after all the discussions on the various amendments, before it goes to the House of Commons and the entire process starts all over again. This normally works the other way around but as the sponsor of this bill is Lord Mandelson, it started in the House of Lords.
There were seven sittings at the committee stages, during the first six weeks of the year, held after the initial readings last year, in order to go through all of the sections, with amendments published last week before the reporting stage began today. New briefing papers were sent to Lord Puttnam and Lord Cope of Berkeley by the AOP with our full support.
Each reading in the House of Commons must be at least two weekends apart and there is a possibility that the legislation could go into ‘wash-up’ and be pushed through with both sides doing deals, without the remaining steps being taken, if parliament is about to be dissolved due to reaching the end of their 5 year term with no general election being called. Or, it could fail to make any further progress and just be dropped altogether. However, Government is likely to want to clean up as much as possible whilst it still can.
All of us in the visual arts industries would like to see section 42, which related to Orphan Works, removed completely but it is still there although collective lobbying has resulted in Clause 116A being significantly amended so that the amount of research required before an work can be classed as Orphaned is now ‘diligent’ rather than ‘reasonable’. This will help ensure that works are not orphaned due to searches for owners not being sufficiently thorough and should help to strengthen the case in arguing that orphaned works be limited to non-commercial use, a point which was argued for once again at a meeting arranged quickly by the Intellectual Property Office last week to which we were invited, along with other leading visual arts associations, to discuss our concerns. We are attending another meeting next week at the British Copyright Council when further discussion will take place.
When the copyright holder cannot be found, the work is considered orphaned so it is easy to see the impact that this could have and the opportunities for abuse. Our advice to members is do not rely solely on adding metadata to images as this can be easily removed and indeed, sites such as Facebook, Flickr and others actually strip all of this information out when images are uploaded to their sites. Ensure all digital images are watermarked with a © copyright symbol along with a name or website address. Cropping or otherwise removing the watermark then becomes a deliberate act of creating an orphan work.
To understand the full context in which Section 42 sits, the other areas that the Bill addresses are:
- Digital communications, in which Ofcom are to be given additional powers
- Digital security and safety, which deals with video gaming, age rating for computer games and the management and distribution of Internet domain names
- Public service broadcasting which deals with broadcasting licences and the increasing of Channel 4’s remit
- Creative industries, which deals with copyright infringement and updates to the regulation of copyright licensing and the public lending right.
The BIPP’s position on the Digital Economy Bill is that whilst we agree it is necessary to legislate to allow for the use of historically and culturally important works for the good of all, that should be limited to non-profit use within the non-commercial cultural sector. We firmly stand against the allowance of any works belonging to the copyright holder being taken and used for commercial exploitation or gain by a third party. We have and will continue to lobby against these measures and to gain suitable amendments to protect creators’ property and their rights. As it stands, the Bill allows any creative work, including photography, to be open to gain by a third party if the creator cannot be found or identified or if the creators’ details can be deliberately removed.
We would also like to lend our voice to the call for amendments to the standing moral rights legislation in order to bring the UK into line with the rest of the EU and the Berne agreement in international copyright law. We firmly uphold the belief that it is a creators’ right, regardless of whether they be amateur or professional, to be named as the author of their work without having to negotiate. We also agree for the need to deter copyright infringement by a penalty that is significantly greater than the lawful cost would have been to license the work, even if not all is paid to the rights holder, otherwise there is no effective deterrent.
All members will be asked to write to their MP’s to express their concerns once we have a date when the Bill will enter the House of Commons and in the meantime, we will continue to campaign for Section 43 to be removed.
Denise Swanson FBIPP