"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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Keir Starmer's Brexit diary: Why doesn't David Davis want to answer my questions?

The shadow Brexit secretary on the resignation of Sir Ivan Rogers, the Prime Minister's speech and tracking down his opposite in government. 

My Brexit diary starts with a week of frustration and anticipation. 

Following the resignation of Sir Ivan Rogers, I asked that David Davis come to Parliament on the first day back after recess to make a statement. My concern was not so much the fact of Ivan’s resignation, but the basis – his concern that the government still had not agreed negotiating terms and so the UKRep team in Brussels was under-prepared for the challenge ahead. Davis refused to account, and I was deprived of the opportunity to question him. 

However, concerns about the state of affairs described by Rogers did prompt the Prime Minister to promise a speech setting out more detail of her approach to Brexit. Good, we’ve had precious little so far! The speech is now scheduled for Tuesday. Whether she will deliver clarity and reassurance remains to be seen. 

The theme of the week was certainly the single market; the question being what the PM intends to give up on membership, as she hinted in her otherwise uninformative Sophy Ridge interview. If she does so in her speech on Tuesday, she needs to set out in detail what she sees the alternative being, that safeguards jobs and the economy. 

For my part, I’ve had the usual week of busy meetings in and out of Parliament, including an insightful roundtable with a large number of well-informed experts organised by my friend and neighbour Charles Grant, who directs the Centre for European Reform. I also travelled to Derby and Wakefield to speak to businesses, trade unions, and local representatives, as I have been doing across the country in the last 3 months. 

Meanwhile, no word yet on when the Supreme Court will give its judgement in the Article 50 case. What we do know is that when it happens things will begin to move very fast! 

More next week. 

Keir