UK digital community responds to the “Instagram Act”

By Chris Lee

The UK Government has been criticised for a move which could see social media users lose ownership of their own images. Dubbed the “Instagram Act” after the Facebook-owned photo site’s efforts to accrue full rights to user-generated images without compensation in December 2012, the new Enterprise and Regulatory Reform Act seeks to liberalise the licensing of so-called “orphan works”, where ownership of the original imagery is hard to prove due to a number of reasons. This could be because, for example, the author is dead or metadata attached to the image does not link it clearly to any one copyright owner.

But what will the true impact be on image producers? NMK asked around.

Cultural ramifications

For Jack Miles, research manager at Northstar Research Partners, the Act will have ramifications beyond copyright and legal, it will also have a cultural impact on digital media.

“Over recent years, the internet has become a content sharing hot bed, with content being shared often for the purpose of knowledge pooling and education. The Act may dissuade photographers from sharing their work for fear of how it may be used and prompt worries about being hoodwinked by corporations who may use their images,” Miles warned.

Miles believes the secondary losers here are, the photographers – who are deprived exposure – and also other content surfers, who may use photography to improve facets of work they produce.

“However, the primary loser is digital culture – a concept built on all its members being willing to share and assist one another – which will now have unwilling members, decreasing its functionality,” he told NMK. “The government have stated that orphan licensing is trying to move innovation, but have they considered the effect it will have on core online behavioural dynamics?”

Intellectual property at stake

The Government argues that freeing the licensing of orphan works would “promote innovation, design and the arts”, reports the Daily Telegraph, but according to Niko Ruokosuo, CEO of global crowdsourcing website Scoopshoot, the core issue of the “Instagram Act” strikes at the heart of intellectual property rights.

“It’s hard to imagine a photo of your cat or something you ate for breakfast as intellectual property, but that’s exactly what it is and that intellectual property has a value,” he told NMK. “It might not be much, perhaps just a few pounds, but in some cases if a photo is really unique or newsworthy it could be worth tens of thousands. Unfortunately, the Enterprise and Regulatory Reform Act means that ‘orphan images’ can be used or licensed without permission or payment. That means that photos shared online could show up in ads for just about anything, without any warning.”

Aside from being deeply unethical, Ruokosuo says the Act shows a complete disregard for the public’s rights.  

“This isn’t the first time the issue of data ownership has been raised. The unauthorised use of photos and videos shared on social networks by the media has raised many eye brows over the last few years. As did Instagram’s proposed policy change last year, which meant it could sell its users’ photos. As a result, we’re finding that many people are becoming increasingly aware of what their rights are and having second thoughts about sharing photos online that could be worth something to someone,” he added.

Much ado about nothing?

Adam Rendle, an associate at international law firm Taylor Wessing, believes there is a great amount of misunderstanding around changes to the Act. He argues that before the introduction of the Act, the law was that any copyright work cannot be used without the authority of the owner of the copyright unless a defense applies and this position hasn’t changed.

“As it stands, the Act contains the power to introduce secondary legislation which will allow for the granting of licences to use orphan works and of extended collective licences. When introduced, there will be significant changes in the landscape of copyright licensing in the UK but the changes are not yet in force and we do not yet know how they will operate in practice,” he said.

“A copyright work will only be orphan if the copyright owner cannot be found after a ‘diligent search’,” he added. “The secondary legislation will provide more detail about what a diligent search involves. It will not be as easy as claiming to have carried out a diligent search and then proceeding to use the work without the owner’s consent; the user will still need to obtain a licence. The licence will be from someone other than the copyright owner and this reform is at the heart of the changes.”

For Rendle, the Act is the beginning of the road for use of orphan works and extended collective licensing but there is a long journey still to be travelled before the licences can be granted.

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