How the proposed Digital Economy Bill could kill parts of the photography business

BAPLA is calling for proposed clause 116B in the Digital Economy Bill, which could mean photographers and image rights holders losing the right to have a say in how their work is used, by whom and at what price, to be scrapped.

UK - BAPLA (The British Association of Picture Libraries and Agencies) is extremely concerned Extended Licensing schemes will be wholly detrimental to the photography and picture industry as it will enable bodies outside the industry to grant copyright licenses in which copyright is not owned by the body or a person on whose behalf the body acts.

Thousands of companies whose role it is manage and market photography will, under these proposals, see their intellectual property rights as well as their living taken from them.

The Bill is currently going through the House of Lords and these changes are due to be debated imminently. It is imperative that these issues are dealt with in the right way by seeking proper and thorough consultation with the rights holders it will affect and assessing the impact of changes on a system which is already fulfilling the role required in a more efficient way than the new proposals suggest.

The creative industries have been operating against a background of copyright regulations that are growing hopelessly out of date in this new digital era and BAPLA applauds many parts of the Bill that support the longevity of our industry. But we view Clause 116B as economically unviable and would question its ability to work. Linda Royles, senior consultant to BAPLA, commented “There are some instances when photography transactions and relationships should and could be managed between clients and rights holders managed directly.

However, there are 1000’s of instances when photographs must and should not be used due to the associated rights. For example these instances could be determined by the photographer (e.g. not to be sold in the US or in connection with a political ideology), they may be contractually agreed by the person in an image (e.g. all uses of the image of a celebrity must be cleared by their agent) or the object, building or skyline that appears in the image cannot be used without the appropriate permissions being sought (e.g. use of a leading brand logo may be considered an infringement of trade mark and many buildings and landmarks need approval before they may be used in a commercial context). Extended Collective Licensing carelessly assumes that all images can be treated equally.”

Whilst the Bill currently provides for an individual photographer to opt out of a blanket scheme – it doesn’t mean that their work will cease to be used in any extended collective licensing agreement. It just means that when you opt out you lose the right to claim the money that is being collected for the use of your work. This seems hardly fair; if you are against the principle of someone else having control over your work and your business, saying ‘no’ doesn’t mean no.

Many photographers do well from existing schemes that collect revenue, for example when a book is photocopied. So if these schemes are already running and in operation, it is unnecessary to single out one business model in law, in this Bill (116B) if the impact of this may be to the detriment of so many and the financial benefit of so few?

Paul Brown, BAPLA Chairman adds, “This clause could potentially destroy the principle of direct licensing, which is the most efficient means of ensuring that a rights holder is remunerated exactly and properly for the use of their work, and lose creators the right to control their own economic and moral rights. Imagine a photographer losing control of every image they shoot. Imagine not being able to instruct anyone how you want your work marketed or respected. Imagine not being paid directly for an image usage, but having to claim for a random share of an unknown pot of money. This is completely untenable and unacceptable.”

BAPLA also supports calls for changes to clause 116A to find a solution to the licensing of orphan works without prejudicing the copyright of photographers and other rights holders.