The “Instagram” Act
15th May, 2013
A number of reforms which could have profound ramifications for both publishers and owners of copyright material have come into effect following the passing of the Enterprise and Regulatory Reform Act 2013 (ERRA).
What are the changes to copyright law?
The change which has brought about the most discussion surrounds “orphan works” – so called because the copyright owner cannot be traced. The objective behind the changes is to enable the commercial exploitation of such works e.g. a song, a film or a photograph, without fear of being held liable should the owner ever come to light and make a claim at some point in the future.
The ERRA lays the foundations of a system whereby a publisher, or other end user, can obtain a non–exclusive licence in respect of a work if after a “diligent search” they can demonstrate to an independent body that the owner cannot be traced. A fee would then be payable which would be used to reimburse the owner if they later made a claim.
Why is this important?
This is a fundamental change to UK copyright legislation. Whilst the relevant provisions of ERRA amend the Copyright Designs and Patents Act 1988 (CDPA), the inclusion of copyright provisions in ERRA has sparked some consternation amongst copyright owners who consider that the changes have been bolted onto a piece of legislation which does not relate more specifically to copyright.
Furthermore, the real structure of the new framework has yet to be defined and will be put into place by secondary legislation made by ministers, which must be implemented by 29 October 2014. In effect, nobody really knows how exactly this will work in practice.
Surely “orphan works” are not a major issue?
Orphan works are in fact a growing problem. In the past, orphan works were typically older media where little or no contact information for the author was available. However the internet, and in particular social media, has fostered a situation whereby many newer works are becoming orphaned in a much reduced timescale.
For example, take a photograph that is posted on Instagram then on Facebook where it is repeatedly shared and is then uploaded onto Twitter. By the time a publisher comes across it, it may well be impossible to ascertain the original author, hence the nickname for the Act. This problem is compounded because uploading media such as pictures can often strip away important metadata which could be used to locate the author.
The Intellectual Property Office however has clarified that merely stripping a photograph of its metadata will not make it an orphan work. The steps set out above must be followed.
What is going to happen now?
We will have to wait until the actual system of licensing is devised and put into effect before we see any great changes but some critics have already declared it to be “premature, ill thought-out and constitutionally improper”. Some have gone so far as to say that the UK government could even be breaching its obligations under the Berne Convention to recognise and protect copyright.
On the other hand it has been argued that the proposed system will have little positive effect on the utilisation of orphaned works since licence fees will have to be set at market value so as to ensure that non-orphaned works are not undercut. This being so, it may well be that many publishers would rather use non-orphaned material.
The other main changes to the copyright regime as set out in ERRA relate to:
- Extended collective licensing, the aim of which, according to government, is to make copyright licensing more efficient. ERRA allows for secondary legislation to be introduced in order to set up a licensing body which will be able to grant licences of copyright works for certain uses. Copyright owners will be able to limit or exclude the grant of licences by such body in respect of their works;
- The limited term of protection of 25 years which applied to designs made by an industrial process has been extended so that like many other copyright works the owners of such works will have copyright protection for the life of the author plus 70 years;
- Changes to the provisions on exceptions to copyright, as well as rights in performances, through new regulations; and
- Changes to reduce the duration of copyright in transitional cases.
What does this mean for me?
Whether you are a creator of copyright work or a business or individual that exploits copyright work you will need to take great care in this area as the law is bound to take some interesting turns in the wake of this new legislation.
Whilst some copyright owners consider that the changes will mean that their protection under the CDPA is lessened, it seems likely that disputes will arise as the new system comes into effect and the courts decide exactly what it means.
How can I find out more?
If you would like to know more about the effects of the new legislation or on other copyright and licensing issues, please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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