The government forced through the controversial digital economy bill with the aid of the Conservative party last night, attaining a crucial third reading – which means it will get royal assent and become law – after just two hours of debate in the Commons.
You couldn’t make it up.
After months of warnings from photographers, and weeks of viral posters demonstrating the dangers of Clause 43 and misuse of photography, the Labour party have got in on the act by launching their election campaign with a poster using all the techniques warned of: only to see it blow up in their faces.
The now-infamous Ashes To Ashes poster, featuring actor Philip Glenister, and immediately spoofed by political opponents, has provoked much pointing and laughter in the media. How, the question runs, could the Labour party be so stupid as to launch a campaign portraying their main opponent as one of the best loved characters from recent British television?
But for those in the UK creative industry there is a far more interesting question: how did the Labour party get permission to use the Glenister image? The answer is: they didn’t. In the Clause 43 spirit of log on, go everywhere, steal everything, the image was apparently downloaded by a Labour Party activist, adapted by advertising company Saatchi & Saatchi, then approved by government ministers David and Ed Miliband. Alarm bells, anyone?
The poster manages to break just about every rule in the intellectual property handbook, and with entirely predictable results. Glenister has apparently said he is unhappy about the use of his image for political purposes. Doubtless lawyers for German car maker Audi will be interested in how one of their products came to be used to promote a British political party. And BBC chiefs are reportedly “furious” at the misuse: “we would never have given permission for any political use of one of our programmes,” one senior executive is reported as saying.
Quick, define irony: the BBC, one of the main proponents of a bill to allow them to use other people’s images in ways they didn’t envisage without permission or payment, is furious that somebody has taken a BBC image and used it in a way the BBC didn’t envisage without permission or payment.
Given the nature of the ill-fated poster it’s hard to see how anyone can claim they didn’t know the provenance of the Glenister picture: after all, the whole point of the poster is that he’s famous. But given the obvious folly of all involved it’s just possible they might make such a claim.
However a quick search of the internet reveals the original photograph hosted here, complete with all the BBC copyright information: it even very helpfully has a contact number for those who wish to use the picture legally.
Digital Economy Bill is now LAW
However it was forced to drop clause 43 of the bill, a proposal on orphan works which had been opposed by photographers. They welcomed the news: “The UK government wanted to introduce a law to allow anyone to use your photographs commercially, or in ways you might not like, without asking you first. They have failed,” said the site set up to oppose the proposals.
But despite opposition from the Liberal Democrats and a number of Labour MPs who spoke up against measures contained in the bill and put down a number of proposed amendments, the government easily won two votes to determine the content of the bill and its passage through the committee stage without making any changes it had not already agreed.
Tom Watson, the former Cabinet Office minister who resigned in mid-2009, voted against the government for the first time in the final vote to take the bill to a third reading. However the vote was overwhelmingly in the government’s favour, which it won by 189 votes to 47.
Earlier the government removed its proposed clause 18, which could have given it sweeping powers to block sites, but replaced it with an amendment to clause 8 of the bill. The new clause allows the secretary of state for business to order the blocking of “a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright”.
The Labour MP John Hemming protested that this could mean the blocking of the whistleblower site Wikileaks, which carries only copyrighted work. Stephen Timms for the government said that it would not want to see the clause used to restrict freedom of speech – but gave no assurance that sites like Wikileaks would not be blocked.
Don Foster, the Liberal Democrats’ spokesman for culture, media and sport, protested that the clause was too wide-ranging: “it could apply to Google,” he complained, adding that its inclusion of the phrase about “likely to be used” meant that a site could be blocked on its assumed intentions rather than its actions.
The Lib Dem opposition to that amendment prompted the first vote – known as a division – on the bill, but the Labour and Conservative whips pushed it through, winning it by 197 votes to 40. The next 42 clauses of the bill were then considered in five minutes.
Numerous MPs complained that the bill was too important and its ramifications too great for it to be pushed through in this “wash-up” period in which bills are not given the usual detailed examination.
However the government declined to yield – although it had already done a deal with the Tories which meant that a number of its provisions, including clause 43 and the creation of independent local news consortia, would not be part of the bill.
The bill, which has been seen as a threat to photographers’ businesses, received intense scrutiny during its four months in the upper chamber. At the centre of photographers’ fears is the bill’s Clause 43 [formerly known as Clause 42], which could allow the Secretary of State to grant licensing powers to orphan works to a third party organisation. Under these powers, the extended licensing body could allow a publisher to use an orphan photograph provided it had made a diligent search for its author.
However, the proposed amendment, introduced during the Bill’s second reading in the House of Commons yesterday reads: “The regulations may not authorise the grant of a license in respect of works of photography created after 1950”.
If passed, the amendment would limit the threat posed by Clause 43 to photographers, who will continue to hold controlling powers over their images. Furthermore, it would prevent commercial organisations from using any images without the copyright holder’s consent – as it is currently the case.
However, photographers united within the Stop43 campaign group have called the amendment ill-conceived, as it can prove difficult in some cases to show whether a picture has been taken before or after 1950. Furthermore, the group argues, the limitations introduced by the amendment could prove counter-productive to photographers in the long-term.
“In our view and experience, current copyright law suffers from significant defects in the way it applies to photography,” Stop43 says in an open letter. “The removal of photography from Extended Collective Licensing proposals will result in photography simply not being discussed when secondary regulation is drafted. As a consequence, this opportunity for professional photographers’ crying need for the defects in current copyright law to be addressed will be lost, perhaps for a generation. We will have no chance to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.”
It continues: “We urge the Liberal Democrats to consider what we believe to be the impracticality and negative consequences of your proposed amendments, withdraw them, and vote with the Conservatives to remove Clauses 43 and 46 from the Digital Economy Bill.”
Jeremy Hunt, the Shadow Secretary of State of Culture has called, in House of Commons, for Clause 43 to be deleted altogether. He said: “I am happy to reiterate my opposition to Clause 43, and to say that we are not prepared to let it through as part of the wash-up process. What is needed is a proper reform of copyright law, and my hon. Friend the Member for Windsor Adam Afriyie has said that under a new Conservative Government he will ensure that such proposals are put before the House.”
For more information on Clause 43 and on how to write to your MPs today, visit stop43.org.uk.
One clown giveth and the other clown taketh away
When I read about Gordon Brown’s plan to give the UK more broadband, I couldn’t restrain my laughter. Isn’t this the same clown now busy circumventing democracy to take away broadband from Britons who already have it? And what good would broadband do them if they’re punished for using it (or even being suspected of using it)? Laying cables would be a waste of resources if people are not allowed to use them.
Brown did suggest another possible use for broadband. He said that it would enable MPs to better communicate with their constituents and keep track of what they want.
There is a real need to improve such communication in Britain today.
Just now, thousands of Britons are trying feverishly to tell their MPs what they want: to reject the digital economy bill. But the message is only slowly getting through. Is this due to a lack of internet bandwidth? Or might the problem be at a higher level in the political system?
If Brown’s broadband plan had been carried out already, it might indeed help MPs do what their constituents want – but not the way he has in mind. More Britons with broadband could mean more Britons accustomed to filesharing, more Britons who realize that sharing is good, more Britons prepared to demand that their government serve them instead of the record companies, and more Britons supporting the Open Rights Group by telling this to their MPs now.
But you don’t need broadband to communicate with your MP. If due to insufficient bandwidth you find it difficult to send your MP a video recording, you can use email, a phone call, even a paper letter if you arrange for delivery before next Tuesday. A singing telegram might make a powerful impression, but hurry before they extend the copyright on the song.
If the government were to stop slavishly obeying the record companies as it formerly obeyed George Bush, and turn its attention to the real issue – how to support the arts in the digital age without impeding sharing – there is no shortage of methods it could try. My 1992 proposal for a special tax to be distributed to artists, with the money partly shifted from the most popular ones towards those not quite so successful, is still applicable. Meanwhile, many artists support themselves already with voluntary payments by their fans. If we make it easier to send these payments, with a send-one-dollar or send-one-pound button on every player, this method would work even better. And without disconnecting anyone!