A government bill some fear will adversely affect photography copyright when it becomes law has reached a crucial stage in the House of Lords.

Digital Economy BillA government bill some fear will adversely affect photography copyright when it becomes law has reached a crucial stage in the House of Lords.

As we reported last year, professional photographers are concerned that the Digital Economy Bill will give members of the public the right to use images for free and without permission.

The bill, which is expected to become law before the General Election, would make changes to the Copyright, Designs and Patents Act 1988.

The controversy centres on ‘orphan works?, a term that refers to copyrighted materials whose owner cannot be identified or traced.

Photographers fear that the Digital Economy Bill would make it much simpler for images to be used, legally, without the consent of the copyright owner.

Among those closely monitoring the bill, as it makes its way through the House of Lords, is Linda Royles, a consultant to the British Association of Picture Libraries and Agencies (BAPLA).

She fears the bill will allow, for example, people to blog or publish digital photos without the permission of the copyright holder.

Speaking today Royles told us that, this afternoon, the House of Lords is expected to debate the most important section of the bill as far as photographers? rights are concerned.

Online image threat

Among those lobbying against the bill is a group called Copyright Action whose website warns: ?The end game is now in sight? It [the bill] introduces orphan works usage rights, which, unless amended? will allow the commercial use of any photograph whose author cannot be identified through a suitably negligent search. That is potentially about 90% of photos on the internet.?

The Association of Photographers told us yesterday: ?We feel everyone should be aware that should the bill pass in its current form, any creative work, including photography, is potentially open to political, social, religious or commercial gain by anyone; if the creator of that work cannot be easily identified and traced.?

However, the Intellectual Property Office (IPO) argues that the bill contains provisions for the creation of ?regulated schemes for licensed use of orphan works?.

Matt Cope from the IPO’s Copyright and IP Enforcement Directorate stresses that a work would only become ?orphan? once a ?diligent search? for the copyright holder has been carried out.

‘Misinformation’

The IPO, which has met photographic groups to discuss their concerns, claims there is a lot of ?misinformation floating around? concerning the impact of the bill on photographers.

Cope told us that the definition of ?diligent search? mirrors European ?best practice? guidelines. These refer, for example, to the searching of relevant catalogues and collections and ?advertising intent to use?.

The IPO adds that the framework in the bill will be fleshed out in secondary legislation, expected to detail specific areas such as photography, following public consultation planned for the second half of 2010.

?The main thing to realise is that the mere absence of metadata attached to digital images online? does not make them ?orphan?,? said Cope.

?Authorisations to run orphan works schemes will also be granted on a sector by sector basis, and if a particular area (such as photography) is problematic – for example, because there are no practical search tools that may be used, or because licensing of orphan works would unfairly damage the market for conventional licenses – the government will have the flexibility to not authorise any scheme in that area. Again these issues will be subject to public consultation later in the year.?

The Digital Economy Bill is currently at the report stage at the House of Lords. It will then pass to the House of Commons.