British Photographic Council concerns over consequences of new copyright law

In all of the publicity over the impending introduction of new ‘Orphan Works’ legislation, some of the finer points of proposed changes to copyright legislation have been overshadowed, including Exceptions to Copyright for Private Copying and Quotation and Parody.

These two exceptions went before the House of Lords for debate at the end of July 2014, with none of the concerns having been regarded or addressed by Government Ministers, and despite questions from the Joint Committee on Statutory Instruments concerning their legality under EU legislation.

These changes have now been approved, threatening seriously to impact photographers many of whom may not even have been aware of these proposals. The government has made these changes through Statutory Instruments, or secondary legislation, rather than being subject to the full scrutiny of parliamentary debate, which accompanies proposed changes to primary legislation.

The most important relate to Copyright Exceptions, which are those recognised exceptions to UK copyright law that allow use of copyright material for education, archiving and similar purposes without breaching copyright. These currently work well and are precisely worded to ensure no ambiguity.

Members of the British Photographic Council have been expressing concern over proposed changes to these exceptions since meeting with the then Minister for IP (Intellectual Property), Viscount Younger of Leckie, over a year ago, and a Joint Position Paper followed. Among the concerns were the proposed changes to the exceptions for Private Copying and for Quotation and Parody. Of particular concern was the ambiguity of the wording and the impracticality relating to how photographs could be ‘quoted’ and the separation of quotation from the previous sensible restriction to criticism and review, leaving its purposes vague and apparently limitless.

The ambiguity in the exceptions will require legal definitions that will be left to the UK courts to decide. There will be a financial impact for photographers both in loss of licensing revenue and in the cost of legal claims and damage to the reputation of photographers, particularly in the area of journalism and current affairs. Further restrictions are needed in the use for Parody & Quotation, to limit the impact of derogatory use. The impact assessments have been clearly done in a ‘one size fits all’ manner, with no consideration to the business models of the photographic sector.

Also approved was the exception for Private Copying with no compensation for rights holders, unlike in Europe where there is a compensatory levy.

We ask the Government where’s the evidence that supports these changes, who did they look to, and are they really striking the right balance for individual creators such as photographers?

The BPC supports concerns over the legality of these draft regulations that have been raised by various bodies such as the British Copyright Council, and our members including BAPLA, NUJ, AOP, BIPP, EPUK, BPPA and Redeye. We believe the Government would be acting ultra-vires if these regulations are implemented as drafted.

The BPC wrote to Lord Stevenson of Balmacara, Lord Clement Jones and Baroness Buscombe outlining these concerns, asking that they reject these proposals so that they can be subjected to the full scrutiny of Parliament via primary legislation.

During the debate Lord Berkeley of Knighton said: “Many people working in the creative industries live on fairly modest means. Their royalties need to be protected—without them, they will find it very hard to survive.”

Lord Scott of Foscote added: “The importance of this is plain. There are a number of individuals who create copyright works on which they rely for their livelihood. They are entitled at the moment to the protection of the law of copyright so that the work they have brought into existence is not taken advantage of by others, without reward for them. The regulations now before the House will have a very serious effect indeed on people of that sort.”

Baroness Morris of Yardley said: “I agree with everyone else who has spoken. I have real doubts about what they will mean for the creative industries.”

Lord Grade commented: “the Government are demonstrating a complete ignorance of the economics of investment in the creative industries. Today’s Motion is yet another example. It is time they tore up the Hargreaves report and listened to the people who make the investments.”

Lord Clement-Jones said: “I am afraid the statutory instruments will pass today, but they are fairly friendless and fraught with the risk of legal challenge. They are badly worded and unnecessary, and they are poorly explained, and the consumer will remain confused.”

Lord Stevenson of Balmacara concluded by saying: “The feeling in the industry is that the battle over these regulations is over and that those affected have been consulted to death but not listened to and, as a result, are simply exhausted. That, more than anything, suggests that the Government have got this completely wrong from beginning to end— although, in fact, I do not think that we have heard the last of these proposals.”

The House of Lords approved the exceptions with scepticism from our supporters. We want to see the Government start the process of a proper impact assessment straight away, working with photographers and their representatives to review the impact it will have over the next year, and ask both Parliamentary Houses to table the review at the earliest in 2015. Surely this approach is the purpose of legislation and the practice of good policy.

The British Photographic Council (BPC) represents over 20,000 photographers via 14 member organisations including trade associations, unions, institutes and networks. They are: Association of Photographers; British Association of Picture Libraries and Agencies, British Institute of Professional Photography; British Press Photographers’ Association; British Society of Underwater Photographers; Bureau of Freelance Photographers; Chartered Institute of Journalists; Editorial Photographers UK & Ireland; Master Photographers Association; National Association of Press Agencies; National Union of Journalists; Outdoor Writers and Photographers Guild; Pro-Imaging; the Royal Photographic Society and Redeye, the Photography Network.

For further information please contact:

Isabelle Doran (BAPLA) on 020 7025 2256

Simon Chapman (NUJ) on 07889 747916

Andrew Wiard (BPPA) on 07973 219201

Denise Swanson (BIPP) on 07973 373657

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