Pandora’s Box of sorts was opened by the United Kingdom in the form of the “Enterprise and Regulatory Reform Act” receiving Royal Assent for consideration as a law. Andrew Orlowski, Executive Editor of the “Register”, a British technology news and opinion website, dubbed it as the “Instagram Act“, and entitled it with the phrase, “all your pics belong to everyone now”.

The clause raising hackles is the “Orphan Works and Extended Collective Licensing Clause 77”, which basically allows granting of licenses for orphaned works allowing any act with them that would otherwise be restricted by copyright and require the consent of the missing owner. The jury is out on the definition of orphaned work which the act describes as – content who’s “owner of copyright in it has not been found after a diligent search made in accordance with the regulations.” The publisher can obtain a non–exclusive license 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. But as they say, the devil is in the details. Let’s review the article of the now famous “Instagram Act” and its implications on social media including second life and a rethink whether this is a Shakespearean “Much Ado About Nothing” or is there true merit to the vociferous opposition.

A look at the Act

1. The Enterprise and Regulatory Reform Act 2013: Excerpt from the original version (as it was originally enacted) (1) ---“Instagram Act”

77. Licensing of copyright and performers’ rights

116A. Power to provide for licensing of orphan works

The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations.

116B. Extended collective licensing

The regulations must provide for any license not to give exclusive rights.

116C. General provision about licensing

The regulations may include other provision for the purposes of authorization and licensing, including in particular provision—

For determining the rights and obligations of any person if a work ceases to qualify as an orphan work (or ceases to qualify by reference to any copyright owner), or if a rights owner exercises the right referred to in section 116B (3), while a license is in force;

1. http://www.legislation.gov.uk/ukpga/2013/24/section/77/enacted )

WHY IS THIS IMPORTANT TO ME?
If you create work that you copyright or use copyrighted work in your profession, you need to understand the nuances of how this law will affect you. Also there is a misconception that it affects only “photographs” and “only the UK” but it affects you and me, because no matter the country we are in, we create works like a you tube video, face book or a blog post image almost every day. This uploading process often strips away important metadata which could be used to locate the author i.e. “you”, and the work in effect without any owner becomes “orphaned work”. Sometimes the organizations doing this are unaware that they are stripping metadata in the upload process itself. Thus the internet, and in particular social media, has created situations wherein work is becoming orphaned on a daily basis. For example, take a photograph that is posted on Flickr then on Face book where it is liked by your friends who know that it is yours, and repeatedly share it around, then is uploaded onto Twitter. By the time a publisher comes across it, it may have become quite impossible to identify the original author.

HOW IS ORPHAN WORK CREATED…? (2)

· The copyright owner did not place information about themselves in their work before release.

· The copyright holder died or closed shop.

· The copyright owner did not understand the need for copyright in the first place.

· The author was deliberately anonymous or worked under a pseudonym and did not intend to copyright in the first place.

· The time period of copyright elapsed as per the internationally followed “Berne Convention” excerpt—

“all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death. For photography, it sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing.”

· Metadata stripping from uploaded content by organizations “knowingly or unknowingly”…

· The explosion of user, i.e. “you and me” creating content and uploading it (eg. facebook/you tube) without realising how it is going to be used.

2. Modified from( http://www.jisc.ac.uk/)

IN FOCUS: THE REGISTER ARTICLE: (3)

Andrew Orlowski has definitely drawn curiosity exciting the emotionally charged aspects saying , “Amateur and professional illustrators and photographers alike will find themselves ensnared by the changes, the result of lobbying by Silicon Valley and radical bureaucrats and academics. The changes are enacted in the sprawling Enterprise and Regulatory Reform Act which received Royal Assent last week, and it marks a huge shift in power away from citizens and towards large US corporations. How so? Previously, and in most of the world today, ownership of your creation is automatic, and legally considered to be an individual's property. That's enshrined in the Berne Convention and other international treaties, where it's considered to be a basic property right. What this means in practice is that you can go after somebody who exploits it without your permission - even if pursuing them is cumbersome and expensive.”

He feels the nitty gritty provisions of the act are just an eyewash and says, “Since most digital images on the internet today are orphans - the metadata is missing or has been stripped by a large organisation - millions of photographs and illustrations are swept into such schemes. For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work - the user only needs to perform a "diligent search". But since this is likely to come up with a blank, they can proceed with impunity.” “The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content-scraping industry, an industry that doesn't have to pay the originator a penny.”

His doomsday prediction being “In practice, you'll have two stark choices to prevent being ripped off: remove your work from the internet entirely, or opt-out by registering it.”

3. ( http://www.theregister.co.uk/2013/04/29/err_act_landgrab/)

OPINIONS ARE LIKE WATCHES… EVERYONE HAS ONE:

At the cost of sounding like the devil’s advocate, while it is an admirable act making the technical language of the law simpler for mass consumption, and the fact that we are all entitled to our opinion, it is yet very important as writers for mass media that we do so, without the sensationalism bordering on yellow journalism. Placing my refrigerator without identification out on my lawn and finding gone the next day, I ought to see it coming. In an ideal world it would still be there. It remains true that when you upload something on the internet, apart from the right to having your work recognized and credit being given to us, the fact is that we ought to have responsibility for the content we upload. I cannot hope to upload whatever strikes my fancy without properly identifying the material and hoping that no one would use it. It is another matter entirely when someone still chooses to do so inspite of taking measures. That’s plain and simple stealing which is going to happen no matter we wish for it or not. The appearance of properly titled and referenced material should increase and better credit can be given rather than the haphazard mess that is now plaguing different unknown forms of work. It might even make the internet more authentic because now everyone has to bear responsibility for their work. The ones who have suffered wild goose chases while trying to hunt the name behind the photograph or video or a piece of music or even advice in a forum can easily relate to this. Many a stuff is out there under “anonymous” talking about life altering medical remedies which are horrendous to say the least. The potential misuse of a law cannot justify revoking of all laws. The “internet” as of now is “freedom with anarchy”. The fear that a gun can shoot me is not legitimate reason enough to ban guns or, conversely, guns are themselves not harmful; so we do not need a license for guns, is also not really a productive approach.

In essence, an automated, industrial scale system for metadata stripping is occurring even today without the law. The WIPO Copyright Treaty (7) provides protections that,

“ensures that computer programs are protected as literary works. It also prohibits circumvention of technological measures for the protection of works and unauthorized modification of rights management information contained in works.”

In the US stripping copyright data is supposed to be illegal under the revised copyright laws. So why has no one sued those “major companies” who “orphan” images by stripping the copyright data?

At the end he says, “So while the Twitterati and intelligentsia were ranting away about "Big Content", we've just lost the ability to sell our own content. In other words, you've just been royally fucked.” Colourful oversimplification of the issue is seen. We have not lost ability to sell our own content. We need to take more responsibility for the content we put up.

7. (http://www.copyright.gov/title17/92chap4.pdf )

The Myths and Facts: (4)

Myth – anyone can use work they have found on the internet as an “orphan” if they cannot find the copyright owner after a search

Fact – A license must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorizing body which the Government will appoint before a work can be used.

Myth – anyone will be able to use my work for free if they cannot find who owns them?

Fact – If a work is licensed following the verification of the diligent search, there will be a license fee payable up-front for its use. The fee will be set at the going rate.

Myth - the stripping of metadata creates an orphan work

Fact – the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme

Myth – I will have to register my work to claim copyright

Fact – Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection.

Myth – the UK is doing something radical and unprecedented with the Orphan Works powers

Fact - Other jurisdictions already allow the use of orphan works. The UK powers are largely based on what happens in Canada – which has been licensing orphan works since 1990.

4. (http://www.ipo.gov.uk/hargreaves-orphanmyth.pdf)

THE GOOD:

1. National Treasure: The Act is trying to give a home to the “treasure chest of history in the attic.” It usually is meant to include the classically older media like out-of-print books, music or photographs with little-to-no contact information available. Long duration of copyright protection puts limits on Archive holders (such as the BBC), museums, galleries and libraries who become restricted by law from publishing orphan works, digitizing them and making them accessible due to risk of potential infringement claims from a reappearing “owner” . This has resulted in many orphan works remaining unused in archives and a massive resource & administrative drain for public sector. Museums often have to exclude historically relevant photographs from public display because they don’t know who took them or where they are from.

To understand clearly, let us consider a situation where you were say making a project on maybe the theories of Galileo or maybe a study on the interesting number of corgis, (breed of dogs), that the queen owns, or maybe a study on the unpublished works of Mozart. Traversing the internet, you happen to find a bunch of images and music which you would want to use but you have no clue about their origin, can you use them? It would be copyright violation at present. This is the problem that Britain is trying to solve. These are the type of works that are now covered by the Enterprise and Regulatory Reform Act, which will allow usage of such works after following a set of regulations.

2. What happens when the author is identified or makes a claim in relation to an orphan work? - The Act has certain safeguards for authors such as the requirement of a ‘diligent search’ and a timeframe (probably likely to be around 5-6 years) for authors to come forward to claim deposited license fees for use of their previously-orphaned works.

3. Legal issues: It is highly unlikely images of our children on face book will be used commercially. Most publishers will not risk using unreleased images of minors.

4. Large content: Companies don’t want legal headaches anymore than you do and are unlikely to intentionally use works that someone might sue over. Given the huge body of work, they could find (or create) stuff for advertising purposes.

THE BAD:

1. Increasing orphans: Today’s face book post is tomorrow’s orphan work. So now, if anyone performs a "diligent search" and fails to identify the creator of the orphaned work, he is free to use it without fear of a copyright infringement suit. Practically speaking, anybody can use work and then can legally claim, “Oh I’m sorry, I did not know they were yours”. Just how diligently does a company have to search before it can claim a work is orphaned?

2. Mobility: Cell phones and pocket cameras are more common now where people automatically upload the image without inserting copyright information.

3. Worldwide implications: If a company in the UK finds the orphan work, it can easily gain a license to use it because of its orphaned nature. Although this is a UK bill, it will affect work done by anyone anywhere in the world –if they can’t find the image’s copyright holder, they have no way of knowing if the image is from the UK or elsewhere, just that it is an orphan, hence requiring neither credit nor compensation.

4. Commercial exploitation: of work without due credit or the fear of being taken to court, should the owner ever come to light and make a claim at some point in the future.

5. Costs: A picture taken might be worth some value, but could be less than what it would cost in terms of time and effort to register it.

6. Fraud: this was an interesting concept I found while going through reader’s comments:

a) Locate an image X
b) Strip the image of metadata and repost it at Y
c) “discover” image at Y lacking copyright information
d) " diligently search" based on image from Y
e) declare image from Y as 'orphaned'…

7. Watermarks are a good idea if placed at the centre of the image, thus destroying it. If placed at the side, it can be easily cropped off on the sides without destroying the image. Many a time, the cropped version is “adequate” for most intents and purposes.

HOW DOES IT AFFECT SECOND LIFE?

Real money transactions are made by many “SLers” who sell virtual clothing, houses, and much more. For many of us, second life is a second home. Once 3- D immersion technology becomes mainstream, we may even encounter situations having real world implications. It’s getting more real all the time in the virtual world. Images, music and photography are an all-in-one part in SL. The infamous CopyBot, which allowed copying virtual goods without paying for them, comes to mind. Linden Lab banned the program but that did not deter the ones who were determined from using it. Filing abuse reports to Linden Lab and suing copiers under the Digital Millennium Copyright Act has become the norm. But the fact that the CopyBot is used under different guises is still a fact. This is an analogy to the “Instagram Act” which existing or not existing, protection of our stuff that we put on the internet has to ruled by our own common sense. The act itself does not make radical changes as is being implicated.

INTERVIEW

1. On interviewing some of the second life denizens, I got varied responses… Mostly it seems to be an unknown act and the main reason being:

Orchids: have you heard about the Instagram act?

Anonymous: No. Got a link for me to read about it?

Orchids: gives link

Anonymous: It really doesn't apply to me. To comment on something that is currently UK-only and image-only …

I truly hope this detailed article clears out the doubts that many of us are having with regard to this act. A person in America or Russia or even in the Pacific islands is affected by this act. Your image/music/ work can be stripped of metadata and used or if you place work on the internet without identifying information that could also be used.

2. However a “photographer in RL and Dj in SL” gave me answers in a way that made “my” understanding of the act better. I thank you!

Orchids: Thanks for replying :)... I wanted your opinion on the “Instagram act”... have you heard of it?

Anonymous: I've not heard of this act

Orchids: that’s okay... I’ll tell you the details and give you the link...

Anonymous :): kk….

Reads act….

Anonymous: not really major as that kind of can already happen as it is; so the act just now gives it a name

Orchids: is it okay if I quote you in there?

Anonymous: um... I guess, but could it stay anonymous?

Orchids: sure :)... that is totally your choice...

Anonymous: sounds good. I just don't want random IM’s after it lol.

Orchids: how would such an act affect your photography? It wouldn’t make a difference to you?

Anonymous: I do have a few pics on FB (face book) but no-where else, so I'm not too sure yet. I didn't plan on posting anything official till I managed to make a “LOGO” of sorts.

Orchids: it says that the FB photos which you haven’t sorta owned can be used by corporations. Does it not affect our privacy?

Anonymous: not really as FB is a free site that anyone can find … so it’s more of a post at your own risk there.

Orchids: you do have a point there... so, it is really our job to properly put our stuff up on the web...

Anonymous: true

Orchids: thank you again... :)...

Anonymous: good luck and thank you for understanding my need to keep my name off the quotes :)

Orchids: you are generously giving me a copyright on your words :))…. so thank you :p

Anonymous: what?

Anonymous: oh by letting you quote me without a name there *face palms*

Orchids: it’s because of sweet people like you that the world is still sane... otherwise we would all be at the hands of lawyers

Anonymous: :)...

3. A builder’s viewpoint:

Orchids: I’m writing on the so called “Instagram act"

Pameola: I read a little about that... seems a UK law could take over the world... The law itself is one thing... How it will be interpreted, applied, and abused...

is another thing :P

Orchids: true! Good idea. I could plagiarize that sentence for the article. :))

Pameola: LOL. I will sue under the copyright laws :P

Pameola: "The devil is in the details" I bet. You still should go through the "due diligence" search process...I wonder how many "diligent searches" for the

rightful owner of a work will be made

Orchids: and plagiarizing is rampant even now... but this act gives us a blanket to hide under.

Pameola... and so is the theft of pictures / graphics from the web etc...

Pameola: Then again, it will boil down to who has enough money to take someone else to court

Orchids: Thank you much for giving me the ideas.

Pameola: You are very welcome.

WHAT YOU CAN DO

1. Don’t post any work online, ever……..and if that isn’t an option--

2. Watermark it: start watermarking images or at the very least add some metadata to your files identifying you as copyright holder.

3. Name it: Your best game plan against your work being used without your permission is what you should be doing to protect your stuff anyway – put your name on it, and if you upload it to Flickr, Instagram, Face book or Google Plus, make sure that the metadata and description includes your name and your statement of ownership. This is not a guarantee your images won’t be orphaned as metadata is often stripped out by image hosting sites.

4. Register it: Photographers and artists can register each individual work with the U.S. Copyright Office (5) or the PLUS Registry in the U.K. (6) to ensure that they are identifiable. This way, even if someone could strip identifying information out of an image and repost it online, and you can always come forward to claim your work. However the cost and time required to register each individual work as prohibitive, but at the moment, there aren’t many options.

5. Google it: Google reverse image (C) search includes the option of dragging and dropping an image into the search bar. If you want protect your image, make it easy for “them” to find you. That way if you find an entity using your image without permission, you can prove that the very minimum of effort will establish you as the owner. Which, again, you should be doing anyway. . .

6. Follow it: Monitor Google for your copyrighted works. You can detect infringing uses, and assert your rights against the infringing party

5.(http://copyright.gov/ )

6. (https://plusregistry.org/cgi-bin/WebObjects/PlusDB)

HOW TO AVOID FALLING FOUL OF THE ‘INSTAGRAM ACT’

· One of the first responses an infringer will have to a copyright infringement claim is that he didn’t know that he was infringing. The “innocent infringement defense” states in part: (8)

“In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”

But it’s not an easy process in the court to prove innocent infringement. As one court explained: person doesn’t have to have the “specific intent” to violate the copyright protection to be liable for infringement.

· And even if the infringement is innocent, the infringer is still liable under a strict liability rule: “Innocent intent should no more constitute a defense in an infringement action than in the case of conversion of tangible personality.”

8.http://www.law.cornell.edu/uscode/text/17/504

A Review of the article http://www.theregister.co.uk/2013/04/29/err_act_landgrab/