"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.

Getty
Show Hide image

Nobody's bargaining chips: How EU citizens are fighting back against Theresa May

Immigration could spike after Brexit, the Home Affairs select committee warned. 

In early July, EU citizens living in Scotland received some post from the First Minister, Nicola Sturgeon. The letters stated: “The immediate status of EU nationals living in Scotland has not changed and you retain all the same rights to live and to work here. I believe those rights for the longer term should be guaranteed immediately.”

The letters were appreciated. One Polish woman living on a remote Scottish island posted on social media: “Scottish Government got me all emotional yesterday.”

In reality, though, Sturgeon does not have the power to let EU citizens stay. That rests with the UK Government. The new prime minister, Theresa May, stood out during the Tory leadership contest for her refusal to guarantee the rights of EU citizens. Instead, she told Robert Peston: “As part of the [Brexit] negotiation we will need to look at this question of people who are here in the UK from the EU.”

As Home secretary in an EU member state, May took a hard line on immigration.  As PM in Brexit Britain, she has more powers than ever. 

In theory, this kind of posturing could work. A steely May can use the spectre of mass deportations to force a hostile Spain and France to guarantee the rights of British expat retirees. Perhaps she can also batter in the now-locked door to the single market. 

But the attempt to use EU citizens as bargaining chips may backfire. The Home Affairs select committee warned that continued policy vagueness could lead to a surge in immigration – the last thing May wants. EU citizens, after all, are aware of how British immigration policy works and understand that it's easier to turn someone back at the border than deport them when they've set up roots.

The report noted: “Past experience has shown that previous attempts to tighten immigration rules have led to a spike in immigration prior to the rules coming into force.”

It recommended that if the Government wants to avoid a surge in applications, it must choose an effective cut-off date for the old rules, whether that is 23 June, the date Article 50 is triggered, or the date the UK finally leaves the EU.

Meanwhile, EU citizens, many of whom have spent decades in the UK, are pursuing tactics of their own. UK immigration forms are busy with chatter of UK-based EU citizens urging one another to "get your DCPR" - document certifying permanent residence - and other paperwork to protect their status. More than 1,000 have joined a Facebook group to discuss the impact of the referendum, with hot topics including dual nationality and petitions for a faster naturalisation process. British citizens with foreign spouses are trying to make the most of the "Surinder Singh" loophole, which allows foreign spouses to bypass usual immigration procedures if their British partner is based in another EU country. 

Jakub, a classical musician originally from Poland, is already thinking of how he can stay in the UK, where there are job opportunities for musicians. 

But he worries that although he has spent half a decade in the UK, a brief spell two years ago back in Poland may jeopardise his situation.“I feel a new fear,” he said. “I am not sure what will happen next.”