"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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What David Hockney has to tell us about football

Why the sudden glut of blond footballers? A conversation I had with the artist back in 1966 gave me a clue. . .

In 1966, I went to interview David Hockney at a rather run-down flat in Bayswater, central London. He was 28 and had just won a gold medal at the Royal College of Art.

In his lavatory, I noticed a cut-out photograph from a newspaper of Denis Law scoring a goal. I asked if he was a football fan. He said no, he just liked Denis Law’s thighs.

The sub-editors cut that remark out of the story, to save any gossip or legal problems. In 1966 homosexual activity could still be an offence.

Hockney and a friend had recently been in the United States and had been watching an advert on TV that said “Blondes have more fun”. At two o’clock in the morning, slightly drunk, they both went out, bought some hair dye and became blond. Hockney decided to remain blond from then on, though he has naturally dark hair.

Is it true that blonds have more fun? Lionel Messi presumably thinks so, otherwise why has he greeted this brand-new season with that weird blond hair? We look at his face, his figure, his posture and we know it’s him – then we blink, thinking what the heck, does he realise some joker has been pouring stuff on his head?

He has always been such a staid, old-fashioned-looking lad, never messing around with his hair till now. Neymar, beside him, has gone even blonder, but somehow we expect it of him. He had foony hair even before he left Brazil.

Over here, blonds are popping up all over the shop. Most teams now have a born-again blondie. It must take a fortune for Marouane Fellaini of Man United to brighten up his hair, as he has so much. But it’s already fading. Cheapskate.

Mesut Özil of Arsenal held back, not going the full head, just bits of it, which I suspect is a clue to his wavering, hesitant personality. His colleague Aaron Ramsey has almost the full blond monty. Paul Pogba of Man United has a sort of blond streak, more like a marker pen than a makeover. His colleague Phil Jones has appeared blond, but he seems to have disappeared from the team sheet. Samir Nasri of Man City went startlingly blond, but is on loan to Seville, so we’re not able to enjoy his locks. And Didier Ndong of Sunderland is a striking blond, thanks to gallons of bleach.

Remember the Romanians in the 1998 World Cup? They suddenly appeared blond, every one of them. God, that was brilliant. One of my all-time best World Cup moments, and I was at Wembley in 1966.

So, why do they do it? Well, Hockney was right, in a sense. Not to have more fun – meaning more sex – because top footballers are more than well supplied, but because their normal working lives are on the whole devoid of fun.

They can’t stuff their faces with fast food, drink themselves stupid, stay up all night, take a few silly pills – which is what many of our healthy 25-year-old lads consider a reasonably fun evening. Nor can they spend all their millions on fun hols, such as skiing in the winter, a safari in the spring, or hang-gliding at the weekend. Prem players have to be so boringly sensible these days, or their foreign managers will be screaming at them in their funny foreign accents.

While not on the pitch, or training, which takes up only a few hours a day, the boredom is appalling, endlessly on planes or coaches or in some hotel that could be anywhere.

The only bright spot in the long days is to look in the mirror and think: “Hmm, I wonder what highlights would look like? I’ve done the beard and the tattoos. Now let’s go for blond. Wow, gorgeous.”

They influence each other, being simple souls, so when one dyes his hair, depending on where he is in the macho pecking order, others follow. They put in the day by looking at themselves. Harmless fun. Bless ’em.

But I expect all the faux blonds to have gone by Christmas. Along with Mourinho. I said that to myself the moment he arrived in Manchester, smirking away. Pep will see him off. OK then, let’s say Easter at the latest . . . 

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times