Stripping of 'metadata' from digital files will not automatically mean creative works become 'orphans', says IPO

Out-Law News | 02 May 2013 | 3:08 pm | 3 min. read

The absence of 'metadata' from digital files will not automatically mean that creative material would be 'orphan works', the Intellectual Property Office (IPO) has said.

Metadata contains identifying tags of information associated with content, including who is the owner of content. 

Photographers have raised concerns that their images could be used without permission or payment to them as a result of new legislation introduced in the UK late last month. The Enterprise and Regulatory Reform Act paves the way for new rules to be set to allow creative works with no known author - 'orphan works' - to be licensed. 

Photographers have detailed concern about current technology and practices that often result in information that identifies them as rights holders being stripped away from digital files. This, they have said, will result in their works being treated as 'orphans'. 

However, in a new 'myths and facts' information document relating to photographers' rights (3-page / 30KB PDF) and the passing of the ERR Act, the IPO said that the stripping of author-identifying metadata from digital files "does not in itself make a work 'orphan' or allow its use under the orphan works scheme". 

Recently 'Stop43', an activist group that campaigns for photographers' rights, said the ERR Act will "allow anyone to exploit your photographs without your knowledge, permission, and payment to you". 

In addition, an e-petition entitled 'Stop Legalised Theft of Copyrighted Works' has been lodged and has claimed that the ERR Act provisions will allow "artworks [to be] legally taken and used for another's own gain". It has been signed by more than 16,500 people. 

"Unless your works are registered or plastered with a watermark, anyone can use your copyrighted work for their own commercial and personal gains provided they have made a small effort to search for the original owner," according to the petition. "If no owner can be found, they are free to do with it whatever they want. There is nothing to stop people simply removing data embedded in digital files and pleading ignorance to the original author of the work." 

Orphan works are copyrighted material, such as books, films and music, which have no identified owner. At the moment many orphan works lie in storage in libraries and other institutions and, because of copyright law, cannot be digitised or used without permission until the term of copyright expires. 

The Government has sought to make it easier for orphan works to be used, and, through the ERR Act, introduced a power for the Business Secretary to set new regulations to govern the licensing of such works. 

Last year the IPO outlined its policy intentions regarding orphan works licensing.  Under those plans, orphan works could be used for both commercial and non-commercial purposes.  

Under the policy, organisations that want to use orphan works would have to conduct a 'diligent search' for the owner of orphan works before they could use the material and those 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. 

In the wake of photographers' concerns, the IPO has now reiterated that a 'diligent search' for the owner of orphan works would be required to be undertaken and "verified" under the new regime, and that a "market rate" will be applied to any use of works identified as orphans. 

"Anyone wishing to use a work as an orphan must first undertake a diligent search for the rights-holder which is then verified with permission to use the work granted by the Government appointed independent authorising body," the IPO said. "If the work is not genuinely orphan then the rights-holder should be found, if the search is not properly diligent, no licence will be issued."

The ERR Act was recently dubbed the 'Instagram Act' in a report by The Register technology news site. The report, published late last month, said that the Act "will permit the widespread commercial exploitation of unidentified work" because a 'diligent search' would likely "come up with a blank". In addition, the report claimed that the ERR Act "fails to prohibit sub-licensing" and that this "gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny". 

However, the IPO said that sub-licensing would be prohibited under the new orphan works regulations. It also said that the "rate payable for an orphan work will not undercut non-orphans". 

The IPO said that it is working with "representatives of the photography sectors and other stakeholders" to develop new orphan works licensing rules and that those rules would be subject to public consultation.

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