Legal expert: alarm over social media photos "not justified"

Fears that social media users' photos are up for grabs from private companies might be over-inflated

Shona Ghosh
30 Apr 2013

Fears that incoming government legislation could deprive photographers and social media users rights to the images they post online are "not justified", according to one legal expert.

The government’s Enterprise and Regulatory Reform Act deals with licensing work where the owner can’t be identified, known as orphan works.

For example, the Imperial War Museum holds more than two million archived photos where the owners can't be identified. That means it doesn't have the licenses to put those collections online, but must still plough resources into physically preserving the documents.

The act proposes placing such works under "extended collective licensing", allowing UK institutions like the Imperial War Museum or the BFI to catalogue their archives online.

But the phrasing of the proposals also prompted fears among creators and social media users that they would lose the right to license any work they had uploaded to sites such as Twitter, Facebook or Flickr.

I do not think that concerns expressed over online anarchy and the legislation effectively removing a photographer's right to generate wealth from content is justified

Since photos are often stripped of their identifying metadata once hosted on the web, they could fall into the orphan works category. Creators specifically worry that unscrupulous firms could copy such photos, use them for commercial benefit and claim they were unable to identify the rights holder.

But Manches LLP’s IP and IT specialist, James Howarth, said the scheme didn't actually remove copyright, or owners' right to make money from their work.

"I do not think that concerns expressed over online anarchy and the legislation effectively removing a photographer's right to generate wealth from content is justified," he said.

He pointed out that any company trying to use any unidentifiable work would have to conduct a "diligent search" to try and find the owner, and would have to pay fees to an independent body overseeing the licensing of orphan works. At this stage, it isn't clear what exactly a diligent search entails.

"This is not a charter to strip meta-data and make free with content. It is, in fact, arguably likely to discourage such conduct given the requirements lawfully to use such works that will be imposed," said Howarth.

Still illegal

The Intellectual Property Office added that it is still illegal for companies to use work without permission and without paying fees.

"The powers do not remove copyright for photographs or any other works subject to copyright – nor do they allow anyone to use a copyright work without permission and free of charge," said the IPO in a statement.

But it isn’t clear in practice how exactly the IPO proposes to stop unscrupulous firms doing exactly that. Although it might be illegal for a newspaper site to copy an image from Flickr or Facebook and repost it online without permission, it can be a fruitless task for the casual user to track down the photo and request fees.

In an assessment last year, the government admitted that an orphan works licensing body couldn’t actually prevent copyright abuse.

"There is a justified concern, particularly from photographers, about the current copyright system, where their work, once digitised, is appropriated by unscrupulous content sellers, and the identifying information (metadata) is removed in order that the work can be presented as owned by the unauthorised seller," it said. "The authorising body would not prevent such abuse across the copyright system, but it would make it more difficult for a seller to explain the presence of work without metadata in a catalogue if they could show no evidence of having registered it as orphan."

Howarth suggested that it would be down to individual organisations and policies to insure against the misuse of social media images.

"This would be best addressed through policies preventing this practice and/or from commercial organisations refusing to use images that do not have appropriate metadata attached," he said.

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