Submission to the Proposed Changes to Copyright Exceptions – Taking Forward the Gowers Review of Intellectual Property

Introduction

The Association of Photographers Limited (AOP) is a not-for-profit professional trade association founded in 1968, our aims are:

To promote and protect the worth, credibility and standing of all photographers and the wider photographic profession.

To enable members to understand and safeguard their rights as authors of creative work.

To encourage the highest standards in creative, technical and commercial practices in the photographic industry at all times.

To defend vigorously and lobby for the best interests of the membership.

To form active links between photographers and those in related creative fields worldwide, and to recognise and respect each other’s objectives and needs.


Members of the AOP are professional photographers working in the fields of fashion, advertising, editorial and design. Members have a wide client range including individual clients in the corporate sector, design groups, publishing houses, music publishers and advertising agencies. Their work is published worldwide in magazines, newspapers, books and advertising campaigns and many sell their images as fine art through galleries and their own websites.

Recommendation 2
Extension to Educational Exceptions to Include Distance Learning

With respect to this recommendation we would refer you to the submissions made by ERA and DACS, who collectively license on our behalf and who cover this issue more fully. However we should like the following to be taken into consideration with regards to Artistic Works, specifically photography.

The AOP is not generally opposed to extending the educational exceptions to allow long distance learners the same benefits as those learning inside establishments, nor of the need to update the media and ways of transmitting the lawful copies. However we believe that narrow drafting is required to ensure creators’ rights are not abused and would ask that the proposed exceptions be limited and remain within the present confines of s35 (2) CDPA.

Should section 36 be expanded to include classes of work other than short extracts from published literary, dramatic and musical works? If so, what classes of works should be included?
What consequences would such an amendment have on rights holders?
What benefits would there be for educators?
If the exception is expanded to other works, what limits should be placed on the size of extracts? Would the application of existing limits to other works be desirable or practical?

Whilst Artistic Works are currently not specifically provided for in the current education exemptions (s35 & 36 CDPA 1988), they may be included within broadcasts, cable programmes and published literary works and are therefore affected by the current exceptions.

We do not believe that Artistic Works should be included in the exception as a specific medium, only if they are included as a part of a broadcast or literary work. S36 (2) CDPA allows for a maximum of 1% of a protected work to be copied – it would not make sense to copy any less than the whole of an artistic work. If Artistic Works were included as an exception in their own right, educational establishments would be able to freely circulate entire works of art which, once they are out in the marketplace (particularly the Internet), would be open to further copies being made illegally. We are already aware that the Internet is seen as the public domain by consumers, and any visual works on websites fair game and free to use by all. Neither watermarking/fingerprinting nor using low resolutions protects images online; this is evidenced by images being found on a number of social networking and blogging sites, having been lifted from websites without permission.

IV. Recommendation 8
Format Shifting Exception

We note that in paragraph 89 it is stated that you are aware of the concerns of photographers with reference to this particular proposed exception, and we thank you for taking into account our discussions. For clarity and transparency we are re-stating our concerns in this response.

What impact would the introduction of a format shifting exception have? What costs or benefits would accrue to right holders and users of copyright works?

In the AOP’s opinion, a private copying exception, allowing format shifting in general, should not be adopted, but particularly with reference to photography. The introduction of a format shifting exception will have a negative financial impact on photographers.

Portrait photographers average £250 and wedding photographers £1000 on reprints, per commission. A format shifting exception is likely to remove this income from the photographer – whilst the legislation may state only 1 copy can be made this would be impossible to monitor and enforce. Pricing ‘up front’ would only serve to reduce the availability of low cost images to all clients, as photographers would simply have to put a high price on releasing any images electronically or on a medium from which the clients can copy or print themselves.

Commercial photographers who licence their work or sell their work as fine art prints for hanging on walls also stand to lose income. Images are licensed to clients for use on mobile phones, and as screen savers etc in addition to publishing and merchandising - should copies be legal to make at home (under the auspices of “format shifting”) these types of licences would dwindle. Software is readily available to enable users to reproduce quality images from low-resolution files. Images can easily be taken from websites or CD’s and blown up using this software for use as fine art prints, reducing sales from online galleries.

We agree with the citation from the report of the Culture, Media and Sport Committee, published on 16 May 2007, that present statutory exemptions do not provide clarity or confidence for users or for the creative industries. The introduction of another exception will cause further confusion and will require campaigns to educate. We believe that education of users as to what is legal, rather than acknowledging illegal use and legislating to make it legal, should be the way forward.

Do you agree with the conditions proposed above?

The recommendation states that the proposed exception would allow “consumers to make copies of a work they legally own” and in other areas makes mention to “being in possession of the original”. This wording is confusing and needs clear definition – in the case of digital photography, “One great benefit of digitisation is that, unlike an analogue copying process, where generational degradation very soon destroys any quality in the image, a piece of digital information can be copied and copied, with each copy being an exact replica of the first. There is no such thing as a digital copy, there’s just another original.”

Would a requirement to dispose of a format-shifted copy if the original was given away or sold or otherwise disposed of, be practical or enforceable? What alternative can you suggest to address the problem of original copies going back into circulation after copies have been made?

We do not believe that this would be practical or enforceable and unlikely to be understood by the consumer, but cannot see an alternative. This is a good reason why a format shifting exception should not be introduced.

Should further conditions be imposed? If so, what are these?

‘Format’ needs to be clearly defined, stipulating what formats are acceptable.
Should Artistic Works be included then it is imperative that downloading from the Internet, web based viewing formats or CD’s to paper or personal computer: any reprographic process i.e. paper to paper or scanning & printing are classed as not acceptable. Additionally, that any images copied must not be displayed/exhibited in public e.g. pub or restaurant walls, on personal or social networking websites. It should be noted that the definition of “format change” within the photographic sector means something different and more specific than a transition from one media type to another. It is commonly used within the photographic sector to describe a change in dimension of an image.

Should the proposed format shifting exception be limited to recorded music and film or should it also apply to other works? If so, which ones?

Any format shifting exception will affect underlying works – literary and artistic works are often incorporated in other mediums. However, if the exception is introduced we would favour limiting the exception to recorded music and film whilst making strong provisions to ensure any negative impact on the creative industry is contained.

What impact would the introduction of a format shifting exception have on particular sectors of the creative industries?

We do not believe that the introduction of a format shifting exception will be good for any of the sectors. It will be impossible to monitor and enforce, the loss of finance and control to the Artistic Works sector in particular will further erode the industry. The Internet, whilst allowing visual creators easier access to clients, is already awash with images stolen from websites or scanned and distributed without permission and is totally unpoliceable.

New software is being introduced all the time, allowing anyone to download images illegally and produce perfect prints; DRM’s and other embedded data are constantly removed by clients; unfair contracts are rife; consumers do not understand that copyright exists in images. Another exception to allow use of images without fair remuneration to the creator will further add to the downturn of the professional visual arts market and ultimately, result in less diversity of expression in the sector.

How many format shifts should be allowed?
Should the exception allow additional format shifts to take account of changing technology?
Should more than one copy be allowed to address the technological process of transferring content?

We believe that, subject to points made previously, that the exception should be limited to specific media; that one shift only should be allowed; and that the exception should not try to encompass future technologies. Other creative industries, such as film and music, could not have envisaged past technological changes such as video to DVD, vinyl, tape, cassettes and CD’s and the visual arts the shift from film to digital. Sectors must be allowed to benefit from new technologies.

Should the exception apply to works:
-published after the date of the law changes;
-purchased after the date the law changes; or
-copied after the date the law changes?
What would be the practical implications of the above options?
Can you think of any alternatives

These options further show how this exception will be unworkable - the reason for this exception has been stated that unlawful format shifting already occurs. Therefore, if rights holders could not monitor and control this illegal copying how would they be now be able to show that copying was done outside the above proposals or in line with a single format shift?

DRM’s are in many cases impractical, and as mentioned earlier are stripped from images by clients, either in the process of publishing or purposefully. Incorporating a ‘fair’ cost into the original commission would, as stated earlier, result in reducing the availability of low-cost images to clients. Photographers are easy to contact to ask permission to copy.

The AOP believes that education of consumers in creators’ rights is the correct way forward, rather than passing legislation that legalises an unlawful act that is already taking place. We believe that legalising it will not prevent consumers from committing further illegal acts by format shifting further than the exception allows.


V. Recommendation 9
Extending the Exception for Copying for Research and Private Study

Photography as an Artistic Work is already covered as an exception in s29 CDPA and we cannot see the proposed extension affecting our members. We should, however, like to note that s29 does not make mention to the fair dealing being purely for non-commercial use. “Private Study” is a phrase that is not defined, and could be misinterpreted – “Research and Academic study for non-commercial use” would be more appropriate.

VI. Recommendation 10A and 10B
Amendment of Library Privilege Exceptions to Extend Permitted Acts for the Purpose of Preservation

Artistic Works are not included in s42 CDPA, neither as a specific category nor as an underlying work. We cannot speak on behalf of all Artistic Works (DACS submission will address the wider field) only for photography. We do not see a problem with extending this right provided that there is narrow drafting of the exception for preservation purposes only.

VII. Recommendation 12
Caricature, Parody or Pastiche Exception

The AOP does not believe that the case for this exception is justified. The examples stated in paragraph 193 do not, in our opinion, go any way to making a case for the need for an exception. Contracts and licensing ensure users are aware of what they are buying and the uses they can make of and to the artistic work.

Parody is a valid form of artistic expression, already recognised by the courts, and allowed under general copyright principles so long as they only “conjure up the idea of” the original, without reproducing any substantial part. It’s therefore unclear to us why an exception needs to be introduced.

Pastiche had many definitions depending on the dictionary visited; different languages; and interpretation in other countries legislation. The cited definition in the proposal would allow for substantial copying which would be detrimental to visual creators and we do not believe should be included in any exception.

What impact would the introduction of an exception for parody have? What costs or benefits would accrue to right holders and users of copyright works?

If an exception is introduced, there is a serious risk that it will be abused, to the detriment of the copyright owners of the original work. Photographers and other visual artists don’t have the means to test the limits of what may well be a somewhat subjective exception; legal action is above the means of most visual artists. Any exception would need to be defined as tightly as possible.

Could an unlimited exception undermine the interest of owners of copyright in the underlying work by allowing advertising or the endorsement of products which are contrary to their commercial interests?

An unlimited exception would have a detrimental effect on visual artists, many of whom license their work for advertising, marketing and merchandising purposes – either by means of commissions or through stock libraries and collecting societies. Additionally, creators must be allowed to continue to control how their work is used from a moral standpoint

If so, would framing the exception as a ‘fair dealing’ exception address the problem adequately?

Any exception should be limited to fair dealing for non-commercial purposes. Commercial users of copyright works should continue to rely on existing copyright licensing principles.

Should the exemption for parody include a requirement to acknowledge the underlying work and its author?

It is imperative that any exception includes a requirement to acknowledge the underlying work and its creator. By definition, a parody can only work as a parody if the underlying work is recognised, so there can be no harm to the parodist in acknowledging the underlying work, this generally already applies in practice.

Is the ordinary meaning of the terms caricature, parody and pastiche sufficient?

We do not believe that there is a close relationship between caricature, parody and pastiche as stated in the proposal. Pastiche does not have to have a ‘comedy’ element in it, whilst the other two are known to have a humorous element. Neither do we believe that there is an “ordinary meaning”, as stated previously different sources give different definitions be it in dictionaries or legislation. Visual artists do not have the means to take legal action and so cannot rely on a court definition. Any exception must include a clear and precise definition of parody, whilst pastiche should not be included.

Is there any reason for excluding particular classes of work from the exception?

The AOP does not agree that an exception for any type of work should be introduced, but in particular for the visual arts where substantial parts of the original work will have to be used to create the new work. We believe that the current definitions for infringement and the existing exceptions are sufficient to enable the creation of works of parody.

Should the exception only apply to certain exclusive rights of a copyright owner or to all such rights? If the exemption is to be limited, how should it be limited and why?

This question is academic, as stated above we do not believe a parody exception should be introduced.

Should the exception explicitly state that it only applies where the underlying work has been made available to the public?

Allowing a parody of a work which has not been made available to the public would severely restrict the rights of the copyright owner of the original work, impeding further any licensing or selling of the work.

Should the exception only apply where the parody relates specifically to the underlying work?

It is essential, that should an exception be introduced, the creator of the underlying work retains as much control as is possible over the use of that original work and that the exception is tightly drafted.

Paragraph 206 makes mention to the fair dealing exemptions for the use of criticism and review and also for news reporting. It should be noted that photographs are specifically exempted from the fair dealing use for reporting current events thus enabling news photographers to earn a living from their work – this right must not be removed if a large number of photographers are to be allowed to gain financially from their images.

Is there any reason why section 79(4) should not be extended to exempt parodies from the right of attribution?

As stated previously the AOP believes that authors of the original work should be credited and, therefore, should an exception be introduced, section 79(4) should not be extended to include parodies.

Is there any reason why section 84 should be amended to exempt parodies from the right of false attribution?

The AOP does not believe that there is any reason why parodies should be exempted from the right of false attribution.



Gwen Thomas
AOP Executive Director Business & Legal Affairs

April 2008

1) Extract from “Metadata” by Mike Laye published in Photo District News December 2001