Last month the Enterprise and Regulatory Reform Bill received Royal Assent, paving the way for an updated UK copyright regime intended to “promote innovation in the design industry, encouraging investment in new products while strengthening copyright protections”.

Key provisions include:

  • The Business Secretary will have power to create regulations to form new rules to govern the licensing of orphan works (i.e. works with no identified author which at present cannot be exploited until the term of the copyright expires as it is impossible to get permission).
  • It will put in place a voluntary regime for extending collective licensing, intended to help reduce complexities in the system.
  • It will introduce an extension of the term of copyright for works created via an industrial process to life of the designer plus 70 years.
  • The Government will have power to make new rules relating to exceptions to copyright and rights in performances, in a statutory instrument still to be drafted.
  • It will reserve a power to introduce statutory codes of conduct for collecting societies if they fail to operate to minimum standards.

The provisions concerning orphan works have proved to be particularly controversial. The new regime will work on the basis that those wishing to exploit orphan works will have to carry out a ‘diligent search’ for the owner of the work. If they are not able to identify the owner after doing so they will be free to pay a reasonable licence fee to use it. What constitutes a diligent search would have to be verified by an independent body, which would also hold the licence fees paid for the exploitation so that the owner can potentially claim them if they are identified at a later date.

Photography groups in particular have been vocal in their dismissal of these provisions as a means of facilitating corporate giants’ use of online content at the expense of the artists who created it. They are concerned that much of the content uploaded onto sites such as Instagram has been stripped of its metadata and thus the means of identifying the author of the work. The proliferation of material online, with material being re-posted and re-tweeted numerous times at lightning speed, is such that it’s easy to see how tracing the creator of a work quickly becomes impossible. Photography groups and other rights-holders are concerned that the new legislation ignores this obvious difficulty in identifying a work’s true source, and that it will allow a publisher simply to tick the ‘diligent search’ box, before being able to exploit free from the risk of a claim for copyright infringement.

The Royal Photographic Society’s principal representative at the British Copyright Council, Andy Finney, has commented on the provisions as follows: “The sheer speed with which any photographer can create images means that we are particularly exposed to changes in copyright law. While the situation is unlikely to be as grave as some commentators believe I am not yet convinced that the government fully understands the implications for photographers of their current agenda”. In the opposing corner, the government is adamant that the new regime is “intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders”.

It will be interesting to see how the supporting statutory instruments are drafted and how the new regime works in practice. Much will depend on how ‘diligent’ a ‘diligent search’ has to be. Whether the orphan works provisions are sensible commercial steps to make use of otherwise (legally) unusable material, or licence for a photographic free-for-all on the internet remains to be seen.