"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
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The beggar used to be friendly – now he was ranting at everyone

What was I doing, dismissing him with maximal curtness – and not caring?

The first beggar was walking but still wretched. Probably in his early twenties, clearly ravaged by more than just alcohol, he made a beeline for me, as if he had an appointment. He was not to know that I was in a mood from hell, though the look on my face would have told him, if he’d been in any kind of state to register it.

“Excuse me, have you got 10p for…”

“No.” And I walked on.

Why? I am almost invariably a soft touch for this kind of thing. But as I said, I was in the foulest of tempers.

Also, this was East Finchley. For those who do not know London, East Finchley is a northern suburb, which at one end hosts the wealthiest street in the country – the Bishops Avenue, where multimillionaires tear down houses and erect new ones even uglier than those they have replaced – and at the other end a typically seedy, dull collection of terraced houses.

The main supermarket is Budgens, a name so ungainly that it could only have belonged to a real person, either too proud or unimaginative to think of something else.

But what, I asked myself, was someone this wretched doing in East Finchley? And what was I doing, dismissing him with maximal curtness – and not caring?

The second beggar, further up the street, I met the next day: much older and clearly mad, rather than chemically poisoned. He asked how I was doing.

“Not so well, as it happens,” I replied.

“Would you like me to say a prayer for you?”

“Why not?” I said, and he placed a clenched fist to my forehead and made a brief incantation, something like an exorcism, and then kissed the large white plastic crucifix hanging from his neck.

I half-expected to feel a jolt of faith, some kind of divine restructuring. This time I gave him money: a pound coin and a 50p coin. But then later I thought: why didn’t I give him more? I’d been doing some tidying earlier and had retrieved a heavy pocketful of change; I could have given him a generous handful.

The third beggar was in Shepherd’s Bush. I knew him from the days when I lived there: a skinny, middle-aged guy who would occasionally stop and rant in a friendly way at me, just sane enough not to ignore. That was ten years ago. Now he was raging at everyone, accusing the teenagers queueing in the kebab shop of being batty boys and saying “bloodclaat” a lot. (Batty boy: homosexual. Bloodclaat: tampon.)

The people he was addressing knew perfectly well what he was saying. They shrugged it off. I got on the bus; so did he, and the whole bus knew about it. There was nothing friendly in him now, and I wondered through which hole in the increasingly threadbare welfare safety net he had been allowed to slip.

That’s it, I thought. I’m getting out of London, its pampered core oblivious to the surrounding anguish. The world in a nutshell. Luckily, my great friend S— had asked if I could cat-sit for her in Brighton. I know her cat, and I know Brighton. Also, I know about a dozen people there who I keep meaning to see, so why not? London was making me ill, and possibly a bad person. So S— invited me down a couple of days before she was due to go on her holidays, and I took the first train I could.

And now I find myself sitting on a sunlounger in a tiny backyard, in a charming house just abutting the North Laine, and the mood is palpably different to the capital’s. It is like a city ought to be: compact, diverse and funky. There is no reek of High Capitalism. It is healthily decadent. It would appear to be full of people who have rejected the idea of London. It still has an enormous number of beggars, but more people were dropping money for them than I ever saw do so in W1, W12 or N2.

So this is what it’s like to fall out of love with the city of one’s birth. What most surprised me was the speed and force with which it happened. I’d made my mind up over a nice lunch that my friend N— was buying me, to cheer me up.

“Don’t you have to stay in London? You know, for book launches and things like that?”

“I don’t go to fucking book launches any more,” I said. I was taken aback by the vigour of my reply. I’m only here for ten days but I have plenty of people to see and dozens of memories, all good, to bump into. I’m already feeling better. 

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 14 September 2017 issue of the New Statesman, The German problem