Analysis A huge expansion of bureaucratic power over UK copyright has been smuggled quietly into draft legislation – giving civil servants the ability to sweep away copyright protection by statutory instrument rather than primary legislation.
The new amendments also allow new agencies to be established to permit the licensing of copyright works without the owner's permission. Such an "extended collective licensing" programme was only outlined last week.
The new amendments, tacked onto the Enterprise and Regulatory Reform (ERR) bill yesterday, were absent in the original text. The measures also include new powers to create and regulate collecting societies.
It's all part of the UK's go-it-alone policy under the "orphan works" umbrella, but proposals are far more radical and sweeping than that narrow remit suggests. The Register understands that the Public Bill Committee, which examines the legislation tomorrow, will be whipped into approving it. This is a highly unusual step which ensures the measures are driven through with no chance of amendment.
Why the rush?
Last week the government proposed a collectivisation programme to sweep away individual copyrights across any class of work, to allow "broad commercial use" of those works.
Such measures are illegal under the Berne Convention, legal experts tell us, and may result in costly litigation lasting years. The phrase "orphan work" can refer to any copyright artifact where the ownership information is missing, which in practice, means every photograph or image on the internet.
So Britain's copyright radicals at the Intellectual Property Office - formerly known the Patent Office but reborn as a hotbed of ideological radicalism in recent years - appear to be in a desperate hurry. Why would this be?
Well, a draft European Directive on orphan works is in the pipeline. While this has been fiercely criticised by creators' rights groups, it offers the individual creator much more protection than the scheme favoured by the UK.
For example, the UK would allow broad commercial use of orphans - the European Commission specifically excludes it. Crucially, however, the European legislation would leave any member state's existing collective licensing programme intact. This would appear to be a very strong motive for the IPO to ram through what it can, while it can.
Legal experts tell is that even if the UK's go-it-alone collective licensing becomes law, it would have to comply with European directives, and the government's doesn't.
Who is going to benefit from this?
Another reason somebody may want to rush through legislation now is because it tilts the playing field towards large content users and processors – hello, Google – and then locks in the bias through legislation.
Today we don't yet have the technical infrastructure to identify works and clear rights, even though image identification technology has largely caught up with the problem – every photograph on the internet can and should have the ownership metadata attached.
But large organisations that would like to exploit your stuff – ranging from Associated Newspapers and the BBC to Google – argue that they should merely need to perform a "diligent search" for the owner of an image, and if this draws a blank, should be free to go ahead and use it.
The phrase "diligent search" appears in the ERR Bill. A "diligent search" defined today, in the absence of a rights registry, is not what it would be if users were obliged to check the database thoroughly. If you're Google, you're going to be screaming for this legislation PDQ.
So what happens next? After Thursday's committee stage, the ERR Bill will bounce along to the report stage in the autumn.
Millions of people who share their photos on Flickr (for example) with an "all rights reserved" attached assume the words mean something - they own their works and can assert all of the rights that go with them - just as a professional can.
But those are not rights that the IPO's "director of copyright enforcement" wants you to have, it seems, and Flickr users might find they may not have those rights* for very much longer. ®
* PS: You can find them here, starting from the bottom.