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Orphan rights

Dids MacDonald, CEO of Anti Copying in Design, discusses orphan rights and whether it’s freedom of use or a free for all

The Enterprise and Regulatory Reform Act passed into law recently and certain elements regarding intellectual property have significantly changed, particularly elements relating to the use of images and other works which are deemed 'orphan works'. Therefore if an image is placed on the internet and the author cannot be found following a diligent search, the work will be free for anyone to use commercially. Authors will now be able to register their images in a planned Copyright Hub so they can always be found, however, there is likely to be a cost involved in this and it has not yet been created, despite the fact the act has been passed. As photographer David Bailey said: "You are about to put the cart before the horse."

Many photography groups have reacted adversely because they believe that the new Act paves the way for exploitation of images posted on the internet because they believe it has been ill thought out.

So what are the rules?

Just because images can be downloaded from the internet does not mean they are free to use. It's more than likely that the owner of the website will be the owner of the rights for all images on their website, or they will have taken a license to use any images which are not theirs. On this basis, the use of these images could amount to actionable copyright infringement under the Copyright Designs and Patents Act 1988 (hereafter CDPA) and there may also be other offences committed. If you check the websites carefully, you will usually find a statement similar to the one that we recommend ACID members use on their websites.

"All copyright, design rights and intellectual property rights existing in our designs and products and in the images, text and design of our website/ marketing material are and will remain the property of (company name). We will treat any infringement of these rights seriously."

In terms of any potential copyright infringement, there are some exemptions in the new act, which may allow certain uses of images belonging to others. Examples would include things such as research and private study where work is to be used for non-commercial purposes and where copyright work is taken for educational use.

One of the main areas affected by the new act will be images uploaded on social media sites such as Facebook as the sites often strip the metadata from the images so the author cannot be identified.

Niall Head Rapson, an IP specialist and Senior Partner at McDaniel & Co, said: "The real issue is the existence of public websites such as Facebook where the meta data of the provider is removed, presumably for data protection issues. If you are using your own web site, the work is unlikely to be an orphan work and practically, if you are going to use Facebook or some other form of public website, put a copyright notice on your photo as per Getty Images etc. It removes the need to show that the offender did not use a reasonably diligent search. e.g. Copyright © company name 2013."

Andrew Orlowski of the Register said: "Most digital images on the internet are orphans because the metadata is missing or has been stripped by a large organisation. 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."

ACID advice

It's a good idea also to use the ACID logo alongside your intellectual property statement on your website, as it shows that you do understand what your rights are. So the advice is to ensure that anything you have online has a copyright notice and that your intellectual property statement is firmly placed in a prominent area of your web page. Ensure that you send any images that you are going to use online to the ACID Design Databank if you have photographed them yourself - or commissioned someone else to do so. If that is the case, ensure that the photographer signs the rights over to you to clarify ownership of the intellectual property rights. It's all about proving your origination and ownership of the copyright work. If you follow these guidelines you should be able to display your website images knowing that you have a protocol in place.

For more information, visit www.acid.uk.com

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