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Orphans and Little Lost Politicians

5 May 2013

Last week the new Enterprise and Regulatory Reform Act was published. The brainchild of Dr Vince Cable, it includes measures across a wide range of disparate fields (from competition and employment to the environment), and was heralded in particular for reducing the burden of red tape. The provisions that particularly interested me as an art historian were those dealing with “orphan” images – photographs possibly protected by copyright, but which cannot be used since the copyright holder can’t be identified and so his permission cannot be obtained. They are mostly films or photographs, as the authors of books usually put their names on the cover, and it is the film industry that seems to have been the most audible voice, since old films are currently fashionable and there is money to be made.

I don’t need to repeat the evidence I submitted to the Intellectual Property Office during the consultation. And I recognise that the question of copyright can raise some difficult issues in reconciling the competing interests of creators, who need the exclusive right to profit from their labours for a reasonable period, and everyone else, including other creators, who want not just to enjoy that work at a reasonable price but also to share, enhance or transform it – to stand on the shoulders of giants, as one of the tallest put it.

Much has been said about this, some by writers far taller than I (one wonders how many of our politicians have actually read Areopagitica?), so in this note I just consider the issues relating to photographic reproduction of works of art. Since I am a specialist in pictures created before 1800, this shouldn’t raise copyright questions at all: but it does. Ever since the nineteenth century, when taking a photograph required a very considerable amount of ingenuity, that act itself is thought to require sufficient originality to be capable of copyright protection. Today that is nonsense (as is reflected in the contradictory case law I discuss in my IPO submission). It’s a bit like confusing the creativity of a David Linley in designing and making a table with asking a chippie to replace a broken skirting board: this calls for nothing more than craftsmanship, certainly not originality. Everyone reading this blog is capable of taking a good photograph of a pastel by Perronneau with a modern digital camera: none of you has the slightest chance of producing the pastel itself. Moreover if two of you take a little bit of care setting up your camera, following instructions precisely (of the kind I would issue to a carpenter), it will be impossible for anyone to work out which of you took which photograph as there will be no mark of individual personality in the result. I spend my life identifying the individual personality of real artists. A law which affords protection for the slavish reproduction in the same way as for the genuine creation is daft – and counterproductive, as it will hardly stimulate further creative acts.

Now all of this has been well rehearsed, so we expected that the ERRB would be a good opportunity to deal with the question: a clause could simply have clarified what is to be protected. But it’s not there. It is possible that some protection for scholarly use of images may still appear – although I shouldn’t hold your breath, but in accordance with the regrettable trend of lazy government, this will appear in secondary instruments which will be issued in due course – and thus avoid the scrutiny of Parliament.

What has appeared (although again without sufficient detail at this stage to figure out how it will work in practice) is an astonishingly silly scheme for dealing with orphan assets. Instead of saying: go ahead, and if the owner turns up his claim will be assessed later, the law proposes to make users first go through a diligent search, then pay a fee for an agency, called an “independent authorising body”, to check this. You can read more about this (if you don’t believe me or really want to know) in a note published on the IPO website, aptly called a myth and fact information document: this description surely applies to the last sentence, where it is claimed that “The licence fee will … be held for the missing rights-holder to claim.” In fact most or all will have been swallowed up in paying for the work (and profit) of the authorising body. That might be a proportionate solution to, say, rights in a major feature film but it is plainly a completely useless scheme for dealing with large archives of still photographs from multiple sources (none of which has much value since there are usually plenty of other reproductions of the same painting) – think of the Witt Library. In addition to the fees consumed by the authorising body, the applicant himself will have to devote extensive resources to the diligent search, not to mention time spent in liaising with the authorising body. So a bill designed to “make provision for the reduction of legislative burdens” has resulted in the production of a length of red tape on an intergalactic scale.

How is it that that is the best the Government can come up with? And why, when the proposal is so silly, was it not simply dropped rather than being enacted as law?

The explanation is of sadly general application: politicians are obliged to be seen to dealing with the problems that arise in society. But they are not required to solve them – it is sufficient merely to present something that purports to be a solution, and pass it off as if it were one. If you are not about to publish an art history book, you have probably only heard talk of the orphan issue, and when you are told by Dr Cable and his colleagues that the Government has enacted legislation that solves the issue, you will probably assume that they should be congratulated – and get your vote at the next election. Problems affect minorities; perceived solutions win the praise of majorities. And majorities are what interest politicians. Films are more important than photographs of old master paintings.

It is of course the role of politicians to adjudicate between these claims: we are all brought up to believe that the democratic process by which we choose those whom we entrust to make these calls will lead to the selection of people who will strike the balance optimally. But when our Culture Secretary has revealed a fundamental confusion between the price and value of artistic endeavour, it is difficult to maintain that optimism. One might even suspect a level of indifference to the value of making images of works of art available as easily as the works themselves (in museums with free admission – for now at least) compared with the contribution to GDP of having fees paid to collecting agencies by museums and scholars.

  1. Areopagitica? Few enough of our Milton scholars, and almost certainly none of our elected members, although I wouldn’t put it past a few amateur historians in the civil service.

    You’re right about the public’s understanding of the orphan rights problem and purported solution. That was me, for one, and now (thanks to your post), it isn’t.

  2. Thank you for your comments. Before anyone else writes in, I do know that Areopagitica is primarily concerned with censorship, but the liberty it craves, “above all liberrties”, “to know, to utter, and to argue freely” cannot be achieved if we are denied access to the material I describe.

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  1. Copyright and the long paw of the law | Neil Jeffares

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