Recent UK legislation is causing concern for authors, musicians and photographers who publish and sell their work online. Similar to the Orphan Works Bill 2008 in the US, the Enterprise and Regulatory Reform Act 2013 in the UK allows ‘orphan works’ (artistic works with no identifiable author) to be licensed.
The intention of the Intellectual Property Office in introducing this Act is to put plans in place that would enable individuals or organizations to use orphan works non-commercially or commercially. However, before they can do this they must make a concerted effort to search for the owner, and the steps taken have to be verified by an authorized independent body. What’s more, those who wish to make use of the works can only do so if they pay the going rate, set by the markets, so that authors can be recompensed should they be identified subsequently.
One way the creative owner of a piece of work can be identified is through metadata. Metadata details a wide range of information related to the content of creative material. Unfortunately however, the availability of technologies that can strip the metadata in common file types such as Microsoft Office documents, images and PDFs, and thus potentially erase identifying information, could result in articles or images being treated as orphan works and used without permission or payment.
According to ‘Stop43’, the photographers’ rights campaign group, both US and UK Acts increase the risk of this happening. An online petition, ‘Stop Legalised Theft of Copyrighted Works’, has been signed by over 16,500 people. The e-petition indicates that there is very little to prevent people from stripping metadata and then asserting they have made the requisite efforts to search for the originator.
The Intellectual Property Office (IPO), however, states that files that do not contain metadata are not necessarily orphan and will not be treated as such. They have offered reassurances that a lack of metadata does not automatically mean a piece can be used under the scheme. There are more steps that need to be taken first including conducting a search for the owner. The fear is that what constitutes ‘diligent searching’ is not clearly defined, leaving the legislation open to abuse and resulting in the exploitation of originators. There is also a worry that the Act does not do enough to prevent sub-licensing.
So what can artists do to reduce the risks of their work being used without their permission?
Despite the risk that it may be removed, they should always add metadata to their work. Anyone who intentionally removes this information can face heavy fines if caught, so there is at least some deterrent in place.
About the Author: Barry Hadfield
Barrie Hadfield is one of the original founders and CTOs of legal software company Workshare, where he serves as head of the company’s research and development division. Barrie started his career by founding Information Management Services Ltd in 1990 as a software developer, building data matching systems for The Council of Europe, BZW, and several London law firms.
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