There has been a lot of news recently about the UK’s new “Enterprise and Regulatory Reform Act” (AKA the “Instagram Act”) which allows the commercial use of ‘orphaned works’ under certain circumstances.
Yes, the act is badly thought out, and as a visual artist who puts images of his work up on the web I’m reading a lot about it, and I am concerned.
But—as mentioned in Techdirt—it’s worth pointing out that (my emphasis in bold):
“Under the Government’s plans, organisations that wish to use orphan works would have to conduct a ‘diligent search’ for the owner of orphan works before they could use the material. The searches would have to be verified as diligent by independent authorising bodies. In addition, organisations would have to pay a “market rate” to use orphan works so as rights holders could be recompensed for the use of the works if they were later identified.”
So, a company can’t just claim it did a diligent search (i.e. it didn’t bother) because the search needs to be “verified as diligent by independent authorising bodies”. Obviously there’s a worry that the “independent authorising bodies” will be toothless and in the pockets of big corporations, but this remains to be seen.
And if the real copyright holder of the image is identified after the image has been used (i.e. after a diligent search that has been verified by an independent body failed to find the copyright holder) then the company that used the image has to retrospectively pay a “market rate” to the copyright owner.
So that would actually force companies who ‘steal’ artwork off the internet and use it to pay up. Hopefully (IANAL!) making it easier to get cash out of them than the traditional approach of suing them, which is not a viable financial possibility for most artists & photographers.
Given that the law has passed (it’s here, we need to deal with it), I think the two areas that artists & photographers should concentrate on are:
- Ensuring the “independent authorising bodies” have enough independence—and teeth—to ensure that a diligent search is indeed diligent, and is not restricted to just running a search in a proprietary copyright-licensing database that artists/photographers have to pay to be included in.
- Ensuring that the “market rates” that companies would be forced to pay retrospectively are indeed market rates and not insultingly small token payments.