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Image Makers fighting for photographers’ rights

The Image Makers Association Australia (IMAA) is continuing its multi-pronged advocacy strategy by representing photographers at a recent Copyright Roundtable, as well as drafting a submission for an upcoming Government consultation on AI.

The IMAA might just be the voice that the Australian pro photo industry desperately needs, with the new professional photography association achieving all the milestones it set out in its initial roadmap.

The work hasn’t gone unnoticed, with Nikon Australia recently signing up as an affiliate partner to sponsor the Assisting/Emerging membership category.

Since its inception in June 2022, membership has grown from 50 to 126 members, with a 90 percent member retention rate at the turn of the financial year.

‘We are in a very healthy financial position thanks to an extraordinary volunteer effort from the committee, and a growing membership and industry support,’ IMAA founder and president, Dianna Snape, told Inside Imaging. ‘Our team of dedicated professionals have run successful businesses for between 10-20 years and the association is benefiting from this knowledge and business acumen.’

The IMAA’s formation came at an opportune time. Just as the new Federal Government began re-assessing proposed amendments to Copyright Law.

In March 2023 the IMAA entered a submission to the Australian Government’s Copyright Enforcement Review, which aims to ‘ensure copyright enforcement mechanisms in our laws remain appropriate, effective and proportionate’. The government found the IMAA’s submission, which recommended the adoption of a copyright small claims process, a useful perspective, leading to an offer to participate in the Attorney-General’s Second Roundtable on Copyright in June.

The Roundtable’s purpose is to continue discussion on three copyright policy reform issues: quotation of copyrighted material; usage of copyrighted content in remote learning; and most pertinent to photographers, Orphan Works.

Ben Guthrie, IMAA secretary. Source: IMAA.

‘The main objective is to have a voice and to ensure the government and whoever else are listening to us,’ Ben Guthrie, IMAA secretary, informs Inside Imaging. ‘That’s the most important thing to us. ‘

This point became more pivotal for the IMAA team after reviewing the Government Copyright paper, which didn’t once mention ‘photography’.

‘It was clear they were thinking about TV shows, movies, music and authors,’ Ben said. ‘While photography was included in a broad sense, by not mentioning images or photography it’s clear the government forgot about photographers. So we were really happy we made the submission, and the government came back to us. That’s how we got onto the Roundtable – they said the submission was really useful and also acknowledged they hadn’t been thinking about us.’

The IMAA was the only group representing Australian photographers, with Ben joining a room of over 30 people in suits, primarily lawyers, attending on behalf of rights holder and user groups.

‘It was very clear that I was the only individual in attendance whose career is to actually make (copyrighted material),’ Ben said. ‘There were people in there representing musicians, authors, and creators – the Copyright Council, Arts Law and APRA was there – a bunch of groups on our side. But none of them were practitioners of any field. They were all lawyers representing various groups. So I was the only one speaking in first person about what it is I do, and I think it helped to cut through. No one else was doing that.’

Crucially, Ben shared his views – the perspective of professional photographers – with a group of policymakers who will consider this information when drafting proposed copyright amendments.

Orphan Works

Inside Imaging has reported on Orphan Works several times over the decade – the last back in 2020 when the Morrison Government flagged plans to adopt the Orphan Works scheme. The change of government appears to have either stalled or taken the reform process back a few steps, to once again assessing the merit of adopting an Orphan Works scheme.

Orphan Works are copyrighted materials that become separated from the rights holder. The scheme would permit a party to use this work if they undertake a ‘reasonably diligent search’ that fails to locate the author.

Orphan Works stands to benefit archival institutions, like libraries and museums which possess historical material that’s not attributed to authors. An Orphan Works system will provide them – and others – a process to sidestep copyright infringement and use protected material. Archival institutions often err on the side of caution, limiting what they can do to avoid potential copyright infringement.

‘This is practical stuff where the law stands in the way and that’s very understandable,’ Ben said. ‘A lot of it starts there, but then where does it end?’

Two primary reasons why Orphan Works concern photographers is the ease at which images are separated from authors, particularly online where metadata is easily stripped; as well as the interpretation of the yet-to-be-defined ‘diligent search’.

Here is a worst case scenario.

A photographer publishes an image exclusively to social media, and popular content aggregating accounts re-publish the image without authorisation. An ad agency working for a multinational corporation decides the image is perfect for an upcoming campaign, but the metadata has been stripped and the author isn’t attributed. The agency follows the online image ‘diligent search guidelines’, requiring it to search via social media and search engines. The social media search doesn’t locate the author due to the image going viral and being re-published by more popular accounts. And a Reverse Google Image Search fails as social media content isn’t indexed. The agency makes an Orphan Work application, allowing them to use the image without charge in an ad campaign.

Here’s another example of an ‘Orphan Work’.

A situations like this is what UK photographers anticipated could happen when its government introduced an Orphan Works scheme in 2014. But by 2018 the UK Intellectual Property Office hadn’t received a single complaint about the system, which requires applicants to detail their ‘diligent search’ process, pay a small fee, and upload the content onto a public register. If the copyright owner finds their work, they can file a complaint to either have the application removed or claim the licence fee.

Ben noted that Roundtable participants referred to the UK system several times as a success, and it’s highly likely Australia will partially model an Orphan Works scheme on it.

While acknowledging that Orphan Works will ‘technically water down rights’, Ben found the government understood the concerns held by rights holders and seemed ‘capable of taking it somewhere proactive and productive’.

Here’s the Attorney-General’s summary of Orphan Works:

‘Participants generally supported or were open to a scheme to facilitate publicly beneficial access to, and use of, genuinely orphaned materials by removing or reducing legal risks for good-faith users without unreasonably prejudicing the interests of the owners of copyright in the materials, though views on how this could best be achieved differed in some respects.

Participants generally agreed that if a limited liability orphan works scheme were to be implemented, it should be broad in application and not be limited to particular types of copyright material, users or types of use. Participants acknowledged that certain kinds of use (such as commercial uses) and certain kinds of material (such as unpublished material, recent material, and material produced in a commercial context) presented a higher level of risk to rights holder interests. Participants supported the inclusion of due diligence search requirements in any scheme. There was broad agreement that these search requirements should be on a ‘sliding scale’, depending on the type of material and use, to help address the risks noted above, with higher standards of search and record keeping required for unpublished materials and for commercial use.

A best case scenario is the scheme will put end-users in touch with authors, and there will be a straightforward and efficient solution for all parties.

‘They’ll [end-users] be more likely to do searches and follow a series of checks and balances that might, in a circular way, bring money back to the author without the work becoming an “orphan”,’ Ben said. ‘I thought that might be quite optimistic, but time will tell if this system will benefit rights holders. It might – it has potential to.’

It seems to be a matter of ‘when’ Australia adopts Orphan Works, rather than ‘if’.  But Ben feels reasonably assured the system won’t drastically harm photographers.

It’s worth mentioning that the US-style Fair Use exception to copyright infringement wasn’t discussed as a potential copyright reform. And the Australian Digital Alliance, a Big Tech dominated lobby group that fought hard to bring Fair Use to Australian shores and weaken copyright protection, was not present at the Roundtable discussion.

Read the Attorney-General’s Second Roundtable on Copyright summary.

[Ir]responsible AI

With the Federal Government taking preliminary steps toward addressing the emergence of Artificial Intelligence, the IMAA is drafting its submission based on a recent survey sent to professional photographers.

The submission will be a response to the Department of Industry, Science and Resources discussion paper, Supporting responsible AI, which aims to mitigate any emerging risks associated with the new technology.

The Attorney-General is also preparing a Roundtable on AI, and the IMAA will draw on the information gathered from the survey to represent photographers.

Professional photographers looking for advocacy, education and industry representation may find value in becoming an IMAA member. Click here for more information.

 

2 Comments

  1. Ben Guthrie Ben Guthrie July 26, 2023

    Thanks for the write-up and kind words Will. Much appreciated.
    Cheers,
    Ben

  2. Robert Edwards Robert Edwards August 3, 2023

    Thanks Ben for your dedicated hard work. Governments pays attention when you speak on behalf of an organisation like the IMAA. History has shown that when no-one represents professional photographers at these meetings we lose out.

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