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Response to Richard Hooper

RICHARD HOOPER has produced his report into the feasibility of a Digital Copyright Exchange. Most of it is devoted to answering the question "what's one of them, then?". The answer is largely that it'd be a "hub" offering a single point of access to databases that can answer the question "who do I have to ask before I can use this piece of work?"

It also suggests that the "hub" should provide facilities for those who want to offer automated or "one-click" licensing of their works. Mike Holderness, chair of the Creators' Rights Alliance, says: "while it is good, and legally necessary, that Hooper stresses that an Exchange will be voluntary, this will lead to pressure on creators to pile their works high and sell them cheap." If they don't offer their words, tunes and pictures in this way, he asks, "will would-be users turn to the of Getty Images, reinforcing their quasi-monopoly?"

As Hooper acknowledges, the concept of "one-click" licensing raises issues of media ethics and how uses harmful to the creator's honour or reputation will be stopped. Must there be a tick-box on the screen by use of which the buyer swears on their mother's life they are neither the Nasty National Party, Armageddon Arms Industries Inc nor Metastasis Tobacco plc, nor an agent for any of the above?

And the incidental inclusion of the idea that an exchange could provide means for creators to "transfer ownership" of their work to others is worrying. The proposed educational function of the Exchange will have to be very effective indeed - and rather annoying to the exploiters of works who would appear to be funding the next steps toward an Exchange - if it is going to explain to new creators why selling their work outright is a bad idea and granting non-exclusive licences for specified uses is a good idea.

Metadata a go-go

Mike Holderness welcomed the stress the report lays on the importance of having and preserving "metadata" - information about the information that is a creative work, including especially who created it. The report stops short of recommending changes to the law to make the theoretical prohibition on removing metadata properly enforceable. It does say:

Recognising that the stripping of metadata on a commercial scale can already constitute a criminal offence as well as a civil infringement, we call on all web publishing organisations that regularly use and resize pictures, such as broadcasters and newspapers, to agree a voluntary code of practice in which they publicly commit to: (1) end the practice of stripping metadata from images and (2) refuse to use images for which there is no metadata attached. And to the extent that it seems appropriate, we recommend that the Government works with the images industry, technology developers and other interested parties to find a practicable solution to this problem.

The report also takes seriously a suggestion from the BBC that, rather than creators being identified in each of their works, works should instead bear a reference code (a "URI") pointing into to a database that says who currently has the power to grant licences. Fair enough, in a sense - a creator might want to redirect queries to an agent or agency. But the fact that they are the creator and should be entitled to a credit won't change.

It is interesting that the National Portrait Gallery and British Museum are leading a project to grant licences to copy works they hold. Surely these rights either belong to artists or their heirs, or have fallen into the public domain 70 years after the death of the artist? The copyright in a photo of a painting is very "thin" indeed and in the US the case Corel -v- Bridgeman says it's practically nonexistent... More investigation is required. (See below.)

The next step, Hooper says, is to set up a Copyright Licensing Steering Group to co-ordinate proposals being developed by "the industry". Much more work follows to ensure that the interests of the actual creators who provide that industry with both its raw and its polished material are represented here.


The full Hooper report (large PDF)

A museum worker responds:

Corel/Bridgeman remains a controversial issue. It is a US case, and its relevance as a piece of case law in the English courts remains dubious. Museums and galleries contain lots of interesting things: many of these are in copyright, and which museums and galleries are mandated to license them on their own account or on behalf of others. There are also many objects which are out-of-copyright, but which have been carefully photographed by staff photographers. These latter kinds of images are as well-protected by copyright as any other photographs.

Museums and galleries are licensing these images because:

  1. There is a lively market for these images; and
  2. Museums and galleries really need the money, derived from image licensing, to help cover costs, particularly at a time of reduced government funding.

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