Fair Use?

Will Britain's 'Instagram Act' Let Companies Use Your Photos?


Will Britain's 'Instagram Act' Let Companies Use Your Photos?

Photograph by Bambu Productions

Britain has passed the boringly titled Enterprise and Regulatory Reform Act. Among other things, the law authorizes the government to update the nation’s copyright law—a dull, bureaucratic move last week that wouldn’t have garnered much attention save for one thing: It may change the way photos are used on the Internet.

Here’s the problem Britain is trying to solve: Let’s say you’re a university or a library and you’re assembling an exhibit on, oh, it could be anything—London during World War II, the Beatles’ first visit to America, Queen Elizabeth’s ridiculously comprehensive collection of hats—and you’ve found several photos that you’d like to include. But you don’t know who took them or where they are from.

“It’s the old ‘shoebox full of historical photos found under a bed’ situation,” says Jeff Sedlik, founder of the PLUS Registry, an online database of creative works. It doesn’t have to be an actual shoebox, of course; it could be a website or Facebook (FB) account or something found through a Google (GOOG) image search. These “orphaned works,” as they’re called, are copyright protected, but there’s no way to contact their rights holder to ask permission to use them. “The laws vary from country to country, but orphaned works are a real problem for everyone. It’s part of our culture that’s lost because copyright law limits our ability to make use of these things,” says Sedlik.

Canada and Norway have passed orphaned works laws, but in most places, including the U.S., the shoebox has to remain under the bed. Britain is taking steps to allow people to make use of these unclaimed works, but it doesn’t limit their use to well-intentioned cultural institutions; now, companies can use them, too.

This change has caused a mass, hysterical freak-out in parts of the British press, which have dubbed the law the “Instagram Act,” a nod to last year’s uproar when the photo-sharing service rewrote its terms of service to allow it to sell users’ images to third parties without their permission. (The company later removed that part of the rules.)

“Have you ever uploaded a photo to Facebook, Instagram, or Flickr (YHOO)?,” asked The Register. ”Rules on who can exploit your work have now changed radically, overnight.” The Telegraph warned that “Parliament could vote through a system that would effectively render every online photo a user posts beyond copyright.”

“This is a misunderstanding,” says Martin Kretschmer, a professor of intellectual property law at the University of Glasgow. “Nothing will change for that sort of work.”  It’s true, Kretschmer says, Facebook and Instagram photos are stripped of the metadata that lists where they came from and could, in a sense, be considered orphaned. But they’re also linked to an actual person’s account. The Instagram Act—OK, yes, that name is rather catchy—will require someone to conduct a “reasonably diligent” search for a work’s author before it can use the work. In other words, it’s going to be pretty difficult for someone to take your vacation photos from Facebook and still claim they couldn’t get in touch with you.

The law’s real threat is to professional photographers whose work is widely copied and distributed across the Internet, often without their knowledge or permission. Britain hasn’t made the text of the act public yet, so it’s too early to tell whether it will properly protect artists or if, suddenly, anything that pops up through Google is up for grabs. “If you’re a photographer who works for months and months on a project, you take these brilliant photos and post them to your website with your name and contact info, then Google image picks it up, the fear is that someone could go ahead and use it without contacting you,” explains Sedlik.

“This law is a very good idea in some ways, but it could be dangerous if it goes too far,” agrees Charles Swan, a digital media and intellectual property attorney in London. And the dangers aren’t limited to Britain. “If you’re an American photographer, you may think to yourself, how come people in the U.K. can use my work without me getting paid for it?”

“This is a very, very underhanded way to make a serious change to the copyright law,” worries Paul Ellis, a photographer and the founder of Stop43, a community of digital rights activists. “We’re essentially going to export the value of our creative work into the pockets of Silicon Valley entrepreneurs.”

Artists can protect themselves if they can ensure that their works are never orphaned. Unfortunately, with the speed and ease of digital reproduction, that’s almost impossible to do. But Sedlik’s PLUS Registry is trying to change that. The registry has 15,000 entrants and is currently beta-testing what it hopes will be an easily searchable way for people to find information about a photograph’s origins, similar to the ISBN codes given to books. It’s not a perfect solution, but it would make artists easier to track down should a company want to perform the so-called diligent search.

But that raises another question: Just how diligently does a company have to search before it can claim a work is orphaned?

“Who knows?” laughs Swan. “That’s how we lawyers make our living.”

Suddath is a staff writer for Bloomberg Businessweek.

Later, Baby
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