Welcome to the world of state-sanctioned intellectual property theft, courtesy of the British government, which last week saw its Enterprise and Regulatory Reform Act achieve royal assent. This wide ranging yet little reported new law includes a major change to copyright that will take power away from individual content creators and hand it to commercial corporations.
The new copyright regulations are in breach of the 1886 Berne Convention and other international treaties, which state that the ownership of creative works is automatically vested in the creators upon creation. Copyright is as an intellectual property right.
With widespread abuse of copyright in cyberspace, and contempt for the interests of those who provide creative content and depend on it for their livelihoods, we have a challenge to the accepted interpretation of copyright. In place of respect for private property we are presented with the philosophical nonsense that “information wants to be free” (© 1984 Stewart Brand).
Those responsible for such intellectual vacuity now have state backing. The new UK legislation which has surmounted all of its parliamentary hurdles bar the tabling of statutory instruments, which invariably go through on the nod, will permit the commercial exploitation of, amongst other things, digital images where information identifying the owners is missing. Those who wish to use “orphan works” will be expected to conduct a “diligent search” for the owners, but in practice that will mean no more than a cursory web search.
Orphan works include images the metadata of which have been deliberately stripped from the files by those who wish to commercially exploit the images. All they need do is edit the files and seed them back into the public domain in a Googlable form, following which they can treat the images as if they were their own property. This is state-sanctioned sequestration of private property by corporate interests.
Britain’s domestic approach to the problem of orphan works clashes with a more considered Europe-wide solution geared toward enabling the use by non-profit bodies of publicly archived material that is still subject to copyright. The European Commission directive adopted in October 2012 clearly establishes the uses that may be made of orphan works, whilst the UK law is written primarily with commercial interests in mind.
The impact assessment for Britain’s orphan works legislation is a complete dog’s breakfast, and what’s worse is that the regulations governing the protection of copyright holders require for their enforcement registries of copyrighted works to which content creators must explicitly opt in. When it comes to digital and other imagery such a registry does not yet exist in anything other than experimental form, yet the new copyright law is about to go live. Freelance photographers especially have every reason to be worried.
In the circumstances the best that content creators can hope for, relatively powerless as they are in the face of corporate power, is for US publishers (i.e., other corporate interests) to carry through on their threat to sue the arses off commercial copyright infringers in Britain. The aim is to bog down the legal system such that the copyright law collapses under the weight of its absurdity.
Trade Unions such as the National Union of Journalists regularly act on behalf of individual and mostly freelance content creators whose works have been illegally exploited. Under the new regime we will be swamped with cries for help from the victims of intellectual property theft made possible by illiberal measures implemented by Liberal government ministers.