"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.

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The internet was supposed to liberate us - let’s claim our freedom

This week the Women's Equality Party launches an e-Quality campaign against online bullying and harassment in all of its forms.

Yesterday – a sunny, energetic day in our office - someone appeared on our website, wrote that he would like to “rape all the sluts” in the Women’s Equality Party, and signed off again.

Our team of female staff read his comment, deleted it and continued working.

If we paused at every message like this, we’d never get any work done. Facing up to daily abuse might not have been formally included in my job description – or in that of our administrative officer, or our digital officer, or any other member of WE staff. But it has swiftly become part of our daily duty, nevertheless.

The abuse has heightened as our party grows. Wearying perhaps, but also a reflection of the space we now occupy on the political scene. After the fantastic results of our first election in May – when the Women’s Equality Party won more than 300,000 votes in London alone – WE provoked as much rage in some quarters as jubilation in others.

Since May we have been pressed to say what we will do next. All of those questions focused on which election we would next fight.

Our next move in fact was to prepare our submission for the Women and Equalities Select Committee inquiry into sexual harassment and sexual violence in schools. Evidence submitted to that inquiry showed the torrent of sexual abuse that young girls now face in school, including pressure to take and send sexual images that are sometimes shared widely without their consent.

Women’s rights offline have a long way to go. Women’s rights online are practically non-existent, and worse, there is an even more ingrained acceptance that this is just the way it is.

So this week WE launch our next fight for women’s rights: our e-Quality campaign against online bullying and harassment in all of its forms. We’re focusing on revenge porn because if we can get that faulty and ineffective one-year-old law rightly focused on consent and compensation, we can set a template for wider use.

Later this year we will be rolling out a national campaign for mandatory sex and relationships education in all schools; we refuse to accept the government’s opposition to this vital tool that can help end violence against women and girls.

No, it’s not the Tooting by-election that many people expected us to contest. But politics doesn’t just happen in Parliament. It happens in our communities and in our homes and in our schools.

And we want to do politics differently. We will always be looking to engage in electoral contests. But we are also looking for other ways to empower people to take action and build the broadest possible movements for change.

So with this in mind we are calling on all parties of all sizes to work on this with us - and we are optimistic as we initiate those conversations they will bear fruit.

Later this week Yvette Cooper and a group of politicians will re-launch their campaign to reclaim the Internet for women. WE are delighted to hear this and extend to them for inclusion in that campaign the specific policies that today we are unveiling:

  • To refocus UK law on revenge porn on whether the victim gave consent, rather than primarily on the perpetrator’s intention to cause distress
  • To give victims of revenge porn recourse to civil law in order to seek justice and compensation not just from the perpetrator but also from the website operators that repost non-consensual porn for profit
  • To construct digital legislation that adequately protects against online abuse and harassment in all its forms and particularly recognizes the double discrimination faced by BME women, disabled women and LGBT+ women.
  • To build equality into technology and the forces that police it by increasing the numbers of women in both fields.

The Women’s Equality Party was established with the aim of doing politics creatively. WE showed in May’s elections that we have earned the right to be heard. Now WE are asking all of the other parties to listen to our voters, set party politics aside and ensure urgently-needed protections for women and girls online.

You can read more about the campaign here. To support equal rights for women online, tweet your support with the hashtag #CtrlAltDelete so that women’s voices are no longer controlled, modified and deleted online.

Sophie Walker is leader of the Women's Equality Party.