"Instagram act" under fire for treatment of copyrighted works

Is the Government handing your photos to media giants?

The Government's Enterprise and Regulatory Reform Act, which became law last week with the end of the 2012/2013 parliamentary session, has come under attack over its treatment of so-called "orphan works".

The act aims to legislate a way for publishers to use copyrighted material which has no obvious author, or no way to track down the author. In the past, orphan works were typically older media, like out-of-print books, with little-to-no contact information available. Those works still cause problems, and are covered by the Enterprise and Regulatory Reform Act, which ought to aid plans to catalogue them, like Google's audacious attempt to scan every book in America.

But the reason why orphan works are kicking up such a fuss now is that more and more works are being orphaned shortly after creation, thanks to the internet. You can see it all the time online: a photo is tweeted, someone cross-posts it to Facebook, someone else reposts it to Twitter from there, it makes it over to Tumblr, and then is incorporated into a Storify which a media organisation reports on. In such circumstances, it can very quickly become nearly impossible to track down the original image. That's why the law has been nicknamed the "Instagram act".

As a result, the bill comes up with a sticking-plaster solution: any publisher that performs a "diligent search" and fails to identify the creator of the orphaned work can use it without fear of a copyright infringement suit. The scheme is envisaged to be similar to that administered by the PRS, which collects money from establishments which play recorded music and distributes it to artists; but since details will be filled in by secondary legislation, we don't know exactly how similar.

As a result, there are reservations about how well the system will work in practice. For instance, the Register's Andrew Orlowski writes:

For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work - the user only needs to perform a "diligent search". But since this is likely to come up with a blank, they can proceed with impunity. The Act states that a user of a work can act as if they are the owner of the work (ie, you) if they're given permission to do so by the Secretary of State, acting as a regulated body. The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content scraping industry, an industry which doesn't have to pay the originator a penny. Such is the consequence of "rebalancing copyright," in reality.

A lot of the questions rely on the definition of a "diligent search"; if, as Orlowski suggests, it is merely a formality for any image which isn't obviously attributed, then real problems could occur. Already, it is relatively standard practice at many high-turnover outlets to crop-out watermarks on images and republish them credited to "Twitter" or "Facebook" – a copyright notice which has no legal backing – so it would not be surprising to see similar publications try to get away with woefully substandard searches.

But without some shady dealings (admittedly, discounting shady dealings might be a fool's game) it's hard to see how the act will lead to the situation where "most digital images on the internet" will be exploitable. Although metadata, embedded information about the image's provenance, is frequently stripped out on uploading, unless the image goes through a tortuous progress like that above there, a diligent search would still find the original uploader.

Nonetheless, the balance of power does appear to have shifted firmly towards publishers and away from artists. That could wind up being ripe for abuse, but it could also fix the system we have now, where artists ostensibly have the power but have very little ability to use it. We will have to wait and see which is the case.

Instagram's website.

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Photo: Getty Images
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Why are boundary changes bad for Labour?

New boundaries, a smaller House of Commons and the shift to individual electoral registration all tilt the electoral battlefield further towards the Conservatives. Why?

The government has confirmed it will push ahead with plans to reduce the House of Commons to 600 seats from 650.  Why is that such bad news for the Labour Party? 

The damage is twofold. The switch to individual electoral registration will hurt Labour more than its rivals. . Constituency boundaries in Britain are drawn on registered electors, not by population - the average seat has around 70,000 voters but a population of 90,000, although there are significant variations within that. On the whole, at present, Labour MPs tend to have seats with fewer voters than their Conservative counterparts. These changes were halted by the Liberal Democrats in the coalition years but are now back on course.

The new, 600-member constituencies will all but eliminate those variations on mainland Britain, although the Isle of Wight, and the Scottish island constituencies will remain special cases. The net effect will be to reduce the number of Labour seats - and to make the remaining seats more marginal. (Of the 50 seats that would have been eradicated had the 2013 review taken place, 35 were held by Labour, including deputy leader Tom Watson's seat of West Bromwich East.)

Why will Labour seats become more marginal? For the most part, as seats expand, they will take on increasing numbers of suburban and rural voters, who tend to vote Conservative. The city of Leicester is a good example: currently the city sends three Labour MPs to Westminster, each with large majorities. Under boundary changes, all three could become more marginal as they take on more wards from the surrounding county. Liz Kendall's Leicester West seat is likely to have a particularly large influx of Tory voters, turning the seat - a Labour stronghold since 1945 - into a marginal. 

The pattern is fairly consistent throughout the United Kingdom - Labour safe seats either vanishing or becoming marginal or even Tory seats. On Merseyside, three seats - Frank Field's Birkenhead, a Labour seat since 1950, and two marginal Labour held seats, Wirral South and Wirral West - will become two: a safe Labour seat, and a safe Conservative seat on the Wirral. Lillian Greenwood, the Shadow Transport Secretary, would see her Nottingham seat take more of the Nottinghamshire countryside, becoming a Conservative-held marginal. 

The traffic - at least in the 2013 review - was not entirely one-way. Jane Ellison, the Tory MP for Battersea, would find herself fighting a seat with a notional Labour majority of just under 3,000, as opposed to her current majority of close to 8,000. 

But the net effect of the boundary review and the shrinking of the size of the House of Commons would be to the advantage of the Conservatives. If the 2015 election had been held using the 2013 boundaries, the Tories would have a majority of 22 – and Labour would have just 216 seats against 232 now.

It may be, however, that Labour dodges a bullet – because while the boundary changes would have given the Conservatives a bigger majority, they would have significantly fewer MPs – down to 311 from 330, a loss of 19 members of Parliament. Although the whips are attempting to steady the nerves of backbenchers about the potential loss of their seats, that the number of Conservative MPs who face involuntary retirement due to boundary changes is bigger than the party’s parliamentary majority may force a U-Turn.

That said, Labour’s relatively weak electoral showing may calm jittery Tory MPs. Two months into Ed Miliband’s leadership, Labour averaged 39 per cent in the polls. They got 31 per cent of the vote in 2015. Two months into Tony Blair’s leadership, Labour were on 53 per cent of the vote. They got 43 per cent of the vote. A month and a half into Jeremy Corbyn’s leadership, Labour is on 31 per cent of the vote.  A Blair-style drop of ten points would see the Tories net 388 seats under the new boundaries, with Labour on 131. A smaller Miliband-style drop would give the Conservatives 364, and leave Labour with 153 MPs.  

On Labour’s current trajectory, Tory MPs who lose out due to boundary changes may feel comfortable in their chances of picking up a seat elsewhere. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog. He usually writes about politics.