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‘Instagram Act’ potential threat to photographers

The UK ‘Enterprise and Regulatory Reform Act‘, which allows legal use of photographs on the internet which have been separated from their copyright details, has been specifically nominated by the Australian Attorney-General’s Department as a useful guide in setting local copyright rules.

Image © 2013 Jason Brown: ‘Please feel free to copy and redistribute this image.’

The UK act attempts to free up the use of artworks which have no identifiable copyright owner. In the past this was largely related to out-of-print books, but it now applies to any photo on the internet which is untraceable.

All the potential user is required to do is undertake an undefined ‘diligent search’ for the copyright owner, which if unsuccessful gives default usage and ownership rights.

In a 2012 report on copyright ownership, the Australian Attorney-General’s Department noted: ‘Given the increase in technologies facilitating the cross‑border use of copyright materials, it would be desirable to develop a system for orphan works that is compatible with orphan works developments overseas. In particular, Australia would need to consider work taking place in the EU, the US, the UK.’ It further noted ‘It may be particularly useful to observe the outcome of the orphan works reforms in the UK which are currently being developed following the UK Government’s agreement to the recommendation in the Hargreaves Review.’

With images moving from platform to platform – from Facebook to Twitter to Tumblr and then perhaps into a news story on another website, original ownership can and is accidentally lost along the way. But with the internet a largely lawless and unscrupulous environment (‘www’ as an acronym for ‘Wild, Wild West’) , the potential to deliberately lose alter or add copyright details by either cropping or simply stripping it from the original file metadata can’t be overstated. There’s potential here for an entirely new, illegal cottage industry.

Writing in The Register, UK journalist Andrew Orlowski has called the new legislation ‘The Instagram Act’:  ‘For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work – the user only needs to perform a ‘diligent search’,’ he wrote.

‘But since this is likely to come up with a blank, they can proceed with impunity. The Act states that a user of a work can act as if they are the owner of the work (ie, you) if they’re given permission to do so by the Secretary of State, acting as a regulated body. The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content scraping industry, an industry which doesn’t have to pay the originator a penny…

Already, according to The New Statesman, many otherwise legitimate websites crop-out watermarks on copyrighted images and republish them credited to ‘Twitter’ or ‘Facebook’ – a copyright notice with no legal backing.

Campaign group Stop43, which represents a wide range of photographers and agencies, said the act was ‘premature, ill thought-out and constitutionally improper’.


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