In reply to Alex Ekins: I've had this response from my MP and would appreciate people's thoughts on it - its a very complex scenario and I think there's been a lot of hysteria about it - I'd like to reply to my MP with considered thoughts. It seems there are good reasons for legislation of this type (the photos of historical importance for example, although I fail to see how historical education is tied up in an "Enterprise" bill..), but my main concern is how this is open to abuse. But the MP makes some points which haven't been mentioned in any scaremongering - the fact payment still has to be made, and can be claimed by the rights holder, and that a notice of 'orphan' status has to be published alongside orphan works where used. Anyway, what do you think to the official line here....?
Dear Daniel
Thank you for sharing your concerns with me about the use of ‘orphan’ works and the Enterprise and Regulatory Reform Act. I completely agree that photographers – both amateur and professional – must have their work protected. I am sorry we cannot discuss this at a surgery but I appreciate you must be a busy man! I want to explain to you why I believe that the Enterprise and Regulatory Reform Act does this, and that it will not allow people to use orphan photos for free.
The current system makes it illegal for orphan photographs to be used. This acts as a restriction on both cultural and economic growth. For example, the Imperial War Museum currently holds 2.2 million photos that it cannot use solely because the rights holders are unknown. The Act addresses this problem, while protecting photographers with a number of important safeguards.
Under the proposals in the Act, anybody wishing to use an orphan photo will have to prove to the independent licensing body that they have taken all reasonable steps to locate the photographer. Once approved, they will have to pay a license fee, set at the market rate, to the independent licensing body. This fee will be set aside at the time the orphan work is used, meaning that there is no incentive for potential users to choose orphan works over known works in the hope that the rights holder may never appear.
Anyone using orphan footage will have to include a notice explaining how the rights holder can contact the licensing body. This is crucial because it will mean that photographers can reclaim the revenue from their pictures used through the licensing body. Currently, orphan works are either not used at all or are used illegally – both resulting in no remuneration.
Another important safeguard will ensure that when orphan footage is used, it will be assumed that the author has asserted their moral rights. This approach is used in Canada, where an orphan picture scheme already exists.
I believe that the Act doesn’t remove rights from photographers, and actually puts them in a better position than at present, because they will have a greater chance of being reunited with their work and will obtain remuneration if they come forward where they would not at present.
With best wishes
