How do we know who owns a photograph?
We can’t, says the International Photographers’ Union (IPU).
The IPU, which represents more than 20,000 photographers worldwide, has called for an update to copyright law that would enable photographers to legally use photographs without the copyright holder’s permission.
The IPA says the current copyright system has become “invasive, overbroad, and expensive” and that the world’s copyright holders, such as Google, have been able to abuse their market power to gain exclusive rights over their users’ photos for years.
But the IPU is urging governments to create a new system that would be more effective, less expensive and fair.
According to the IPA, “intellectual properties” are the legal rights of a person or company that are recognised by the copyright law, and not those of another party.
They include:the right to reproduce, distribute and perform the work of a creator, and to exclude others from reproducing, distributing and performing it, and the right to make derivative works of the work.
It is also important to understand that copyright does not apply to “intangible personal property”, such as a person’s voice or the images on a page.
“It’s a bit like saying that a piano is not a copyright, because you can’t copy a piano,” said Andrew Furlong, senior intellectual property lawyer at law firm Hogan Lovells.
“There is no such thing as an intangible property.
If someone has a piano, it’s their piano.
You cannot just give them the rights to play it.”
The IPO argues that there is an imbalance between the right of authors to reproduce their work and the rights of photographers to use and share their images.
The current system has created a “huge disparity in protection for the right holder” and a “host of unintended consequences”, says the IPO.
It says the UK’s current copyright law has failed to reflect this imbalance.
“The UK has one of the worst copyright laws in the world, which has caused significant harm to photographers in the UK and elsewhere in the EU,” said Furlood.
“If this law had been changed to recognise photographers’ rights to use, distribute, display and perform their photographs, it would have prevented these harm.”
In 2014, the IPB proposed that copyright law should be changed to give photographers the same rights as authors.
The proposal was adopted by the House of Lords in May and is now awaiting Royal Assent.
The IPB has called on the government to adopt the new proposal.
The changes would also allow a photographer to claim the copyright for the images that they took using their equipment, including lenses and film.
Currently, a photographer cannot use his or her image for a commercial purpose without the permission of the copyright owner.
Under the IPP, photographers would be able to claim copyright for their images, but it would be up to the copyright owners to decide if the photograph was suitable for a public exhibition or private use.
In order to claim rights, a photo would need to have been taken “at or before” the time of the infringement, and a photograph taken after the infringement could not be used as evidence of the owner’s right to use the photograph.
The new proposal would also apply to images taken after January 2019.
If copyright owners are not able to provide the photographer with a copy of their work, they can seek damages for the infringement.
The maximum amount of damages would be £10,000, but the IPUs said the amount could be increased by up to 10 per cent in the future.
The UK’s Intellectual Property Office is currently working on a draft law to provide an easier way for photographers to recover damages from copyright infringers.
“We know there is a big gap between the rights holders and the public in the protection of copyright,” said James Brown, chief executive of the IP Office.
“We need to close that gap and give the public the certainty they need to be able have confidence in the work that they’re using.”
The proposals would not affect the rights held by photographers who were not taken under the current system.
However, Brown added that there are currently no mechanisms in place for protecting photographers who took photos during the infringement period.
“You can take a photograph during a period of infringement, but you have no way of knowing whether the work was taken under a different system,” he said.
“If a photographer takes a photograph of a car parked in a garage and the owner of the car is still out there and there is no way for the photographer to know who the owner is, then that photographer is not going to be protected.”
A government spokesperson said: “We have been working on an IP reform bill since 2016 and have already taken action to ensure that our laws are more efficient and fairer for photographers, the economy and consumers.
We are still working on how to implement the reforms and we have yet to finalise our final legislation.”