The Digital Economy Bill – The BAPLA position

Posted: 03/03/10

The Digital Economy Bill, with specific reference to clause 42, is a bill that has been presented to our industry as a solution to many problems.  This includes regulations around future management of Orphan Works, Extended Collective Licensing and the management of Collecting Societies.

For many months, BAPLA has played a high profile and widely reported role in lobbying to ensure the interests of the picture library licensing business and the rights of rights-holders are presented and protected.

BAPLA is supportive of the legislation but believes it is critical to highlight the concerns presented by our sector to the Bill.


Orphan Works

Non Commercial
We applaud and support attempts in the Bill to resolve the Orphan Works issue, an issue that dates back decades.  We welcome proposals to bring images out of hiding and legally into the public domain for use in cultural heritage, education and digital preservation purposes.  

However, we strongly believe that any proposed use of Orphan Works photographs must be for non-commercial use only. If OW were allowed to be used commercially their use could unknowingly;

  • be prejudicial to the subject of the image – in particular of un-cleared model release images and images of children, and breach privacy and confidentiality
  • be prejudicial to property rights, for example images of buildings or bylaws pertaining to property or land and from the inclusion of trademarks.
  • contravene other acts such as public order, data protection, official secrets, human rights, contract law
  • contravene international laws
  • be detrimental to the commercial interests of the publisher
  • be prejudicial to the moral and economic rights of the rights holder if and when these appear, here or abroad.  

If we fail, we will fight to ensure that for all of the reasons above, OW images must be licensed above the going ‘commercial rate’ and rights-holders and picture libraries are protected from legal issues arising from the misuse of any of their images which are licensed without their authority.

Image Credits
We do not accept that a foolproof solution can be found for Orphan Works if the emphasis is placed solely at the end of the problem without managing the root causes.  We believe that creating safeguards around moral rights and the protection of metadata would:

  1. drastically reduce the number of works being turned into Orphans in the first instance
  2. reduce the uncertainty of users as to how a work can be used.
  3. facilitate the identification of works claimed as Orphan

BAPLA has worked extremely hard to raise awareness of Moral Rights, and continues to do so with members of the House of Lords, the House of Commons and with policy makers at IPO. BAPLA gains great assurance from the IPO’s pledge to work with industry knowledge to influence the definitive wording of any such OW scheme and towards a robust and FREE technical solution for the management of future Orphan Works.

Extended Collective Licensing (ECL) (116B)

BAPLA had several grave concerns over ECL and these were made public in January. Following many meetings with the IPO, we are reassured that the right code of conduct will be created to regulate any scheme that might involve the management of our members’ images and rights.  

We are confident that provisions for opting out of such a scheme will mean that any rights holder wishing to be excluded from any Extended Licensing schemes WILL be able to withdraw SOME or ALL their images if they so wish.
BAPLA will fight to ensure that only the right licensing body will manage any ECL / OW scheme such that it affects our members.  

Furthermore, the management of ECL for photography will only take place after significant consultation with image rights stake-holder groups before and after the legislation passes.

BAPLA is supportive of IPO’s instigation of a robust technical solution for the management of Orphan Works and ECL schemes, ensuring that registration to OPT out is free to rights holders and managed on a non-commercial basis.  

Simon Cliffe BAPLA CEO says
BAPLA’s focus these past months has been on creating a level playing field for all our members to thrive on.  I think it’s fair to say that the last six or seven weeks have been some of the busiest in BAPLA’s history. And without doubt, the last six or seven weeks have certainly seen BAPLA go deeper than ever before on the lobbying front. The Digital Economy Bill offers new opportunities to sharpen up copyright procedures, opens up future debate on moral rights and protecting metadata AND it looks at finding solutions to orphan works.

What we want is a copyright agenda fit for the 21st century; the bridge to Orphan works is in strengthening moral rights; moral rights in the UK are weak and we need to work to change this in order for the UK to compete effectively and efficiently in the digital economy.
We will always stand up for this industry, no matter how much the cards are stacked against us. So much of the office time is spent promoting the industry and investigating, as we currently are, new business opportunities for our members. But when something as momentous as the Digital Economy Bill appears we will ensure our voice is heard at EVERY level. We hope the final Bill debate, including talks surrounding Section 42, will conclude soon. We will then have a much clearer idea of its future passage and start to form a better idea of how it will shape up. We’ll keep you up-to-date with all that important progress