The UK has passed a new act that has photographers and other creators worried about maintaining ownership of their images. The Enterprise and Regulatory Reform Act theoretically aims to make it easier for companies to publish orphan works, which are images and other content whose author or copyright can’t be identified. But whereas in the past, orphan works were often out-of-print books and historical unattributed photos, today millions of images are quickly orphaned online, as they move from Instagram to Twitter to Facebook to Tumblr without attribution along the way.
The new law creates “extended collective licensing” systems that let publishers not only use those images without legal ramifications but also sub-license them, according to the Register. It’s been widely dubbed the Instagram Act, probably because it’s eerily reminiscent of what Instragram tried to pull late last year and because the new provisions create a legalized version of the photo stealing that more and more users have been seeing happen on the social media platform.
The allowance hinges on the companies performing a “diligent search” to find the author of a work before they go ahead and use it. But critics aren’t convinced that large publishers and companies can be trusted to do that honestly. Andrew Orlowski at the Register offers the example of the Daily Mail, whose “website is notorious for grabbing images found on the internet and using them without permission — even incorrectly attributing them, eg, ‘© Twitter’.” Orlowski has a good explanation of why the the new legislation is so troubling:
… [I]t marks a huge shift in power away from citizens and towards large US corporations.
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.
It seems that now, in order for photographers and other creators to make sure their works don’t get swept up by big companies, they’ll either have to avoid putting them online or take the extra step of registering them — and there’s apparently only one photo registry up and running in the UK at the moment.
Groups in the US have already threatened “a firestorm of international litigation,” and the British Press Photographers’ Association spoke out against the act a few weeks ago. Alex Hern at the New Statesman has a more nuanced take, however, writing, “the balance of power does appear to have shifted firmly towards publishers and away from artists. That could wind up being ripe for abuse, but it could also fix the system we have now, where artists ostensibly have the power but have very little ability to use it.”
It’s not quite clear to me how the latter could be the case — I suppose, by registering their works, artists could somehow assert more control over their images? But mainly the Instagram Act seems to exacerbate a huge issue that already exists online and that no one’s figured out how to solve. While many photographers may not mind too much if a teenager reblogs their image on a personal Tumblr without giving credit, letting British tabloid papers use and license images without paying for them seems like an entirely new and more nefarious form of copyright ignorance.