Reinforcing photographers’ authors rights in the United Kingdom and Ireland.

Nick McGowan-Lowe

In 2009, the British Photographic Council began an annual survey into the state of

the UK photographic industry

In 2010, the survey went further, asking questions about lots of aspects of

photographers working lives.

Current UK copyright lawThe 1988 Copyright Designs and Patents Act is the current

law regarding copyright in the UK. When introduced, it was seen as a substantial improvement on previous UK copyright laws.

Since this Act, freelances now own the copyright on commissioned work . This copyright was a ‘property right’ that could be sold to others.

The legislation allowed certain moral rights, if asserted Copyright was extended to 70 years after the author’s death

Penalties for copyright infringement include the lost amount, damages, and - in some cases - imprisonment.

So does the current UK copyright system help protect creators ?The BPC’s second survey showed that in 2009:

93% of freelance photographers said they were put under pressure by a client to give away copyright or give a more extensive license for no extra money;

71% of freelance photographers said one or more of their clients attempted to acquire copyright from them for no extra fee; and,

40% of freelance photographers said that the majority of their clients believed that by commissioning a freelance photographer, the company owned the copyright.

But despite all these pressures:

Only one in ten freelance photographers said they voluntarily gave copyright to their clients by default.

If the law doesn’t help with commissioned work, does it help protect photographers against those who use their work without

asking?

Does UK copyright system help stop copyright infringements ?

60% of freelance photographers knew that their copyright had been infringed in the previous three years.

Photographers who knew of their work being infringed, said that on average they were aware of 21 infringements over the previous 3 years.

Only 30% of photographers said they pursued every known infringement - and 25% say they never pursued any known infringement.

48% of photographers said copyright infringements were a threat to their businesses.

So why aren’t UK photographers using the law to help recover money from those who use their work without asking ?

Why aren’t UK photographers chasing copyright infringers?

45% say the UK legal system is too difficult to raise a court action.

Of those who did pursue the infringement, 62% said they did so by raising an invoice and chasing it as a debt - a legally dubious method, but one that is often successful.

Of those who successfully pursued an action, only 34% were happy with the outcome.

30% say the infringer was in a different country and jurisdiction, making it too difficult for legal action.

What effect does this have on UK publishers?

UK newspapers routinely infringe the copyright of individual photographers - usually by taking photographs from the internet - because they know the penalties are so small.

Less than 10% of newspapers routinely credit individual photographers - and they are exempt from doing so under the law.

Almost every national and local newspaper seeks to circumvent the intention of the 1988 Copyright Designs and Patents by insisting either freelances give them copyright, or that the newspaper can reuse commissioned work without payment.

The statistics gathered by the British Photographic Council in 2009 and 2010

show that the UK copyright system is not defending the interests of photographers.

But to understand the fuller situation, we need to understand the industry as a

whole.

About the UK photography industry

It is predominantly freelance: only one in ten photographers is staff. 85% of those freelances work alone, with no employees.

It is poorly paid: the median profit or salary of a UK photographer is around £15,000 (€17,300) compared to a national average UK wage of around £25,500 (€29,400)

Staff photographers earn on average around twice as much as freelances.

Only 13.4% of photographers have a photography-related degree

So what does this mean ?In the UK, photographers are unregulated and do not need to

be a member of a professional organisation - making them difficult to contact and organise.

Most photographers work alone, with little contact with their competitors - which leads to suspicions that the competitors are charging less,or agreeing to more stringent terms.

UK photography training courses are notoriously poor at teaching copyright and business skills - meaning new photographers have little or no knowledge of the law and industry best practice.

A significant number of new photographers are middle aged and switching career.

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The difficulties this creates for trades unions

Photographers are difficult to find, organise and attract to membership.

Usually photographers have little contact with their peers - leading to distrust, and a lack of information being shared.

They are low paid and vulnerable to accept offers or terms which they would not normally agree to.

75% of professionals consider amateur photographers a threat to their businesses.

How do photographers want the UK system to change ?

82% of freelance photographers want a quicker and easier way to pursue copyright infringement.

84% want mandatory,legally enforceable credits and bylines when their work is published.

54% of photographers say any potential UK orphan works legislation would adversely affect their business

What the NUJ is doing :The NUJ is exploring new ways of reaching new

photographers- such as working with equipment manufacturers, instead of just colleges and universities.

Industry email discussion lists such as EPUS, EPUK and EPFrance bring photographers together to discuss issues and promote best practice.

The NUJ is exploring ways in which photographers can introduce the issue of copyright and licensing to clients, without being seen as ‘awkward’ or ‘difficult’

The NUJ continues to publish its industry fees guide, as well as circulating examples of acceptable fees for particular uses.

What the NUJ is doing :The NUJ recognises the possible damaging effects of any

orphan works legislation, and is committed to ensuring that were it introduced, it would include necessary safeguards including the automatic and mandatory right to a credit.

The NUJ believes that the 1988 legislation has come to an end, and that future changes to UK copyright law should be along the lines of authors rights as seen in continental Europe, and proper, enforceable moral rights.

The NUJ has long campaigned for a quicker,easier way to enforce UK copyright law for low-value, simple cases.

And there’s some significant good news from the survey.

There is one group of photographers who earn significantly more than their

colleagues - and it’s linked to one simple factor.

Freelance photographers who routinely keep their copyright earn

33.2%

more than those photographers who routinely give their copyright to their

clients.

Nick McGowan-Lowe,National Union of Journalists, andThe British Photographic Council

nick@nml.uk.com

The survey results: http://tinyurl.com/bpc2010survey