What does 'The Instagram Act' mean for online image copyright?

The government says it's much-needed legislation, but critics argue it allows wholesale theft of copyrighted material. Danny Palmer examines the implications of the The Enterprise and Regulatory Reform Act

The Enterprise and Regulatory Reform Bill received royal assent on 24 April, effectively making it law. The act has been passed with the aim of modernising the UK's copyright legislation for the digital age.

It includes a raft of measures, among which orphan works - copyrighted work for which the owner is unknown or untraceable - will be licensed to be used online for the first time.

But labelled by critics as "The Instagram Act", the bill has come under fire for supposedly providing a free licence for anybody to use online images without the need for crediting the original author, potentially threatening livelihoods.

The government argues the act doesn't in fact allow the use of copyrighted work free of charge. Nonetheless, the legislation itself states that orphaned work can be used so long as a "diligent search" for the original source has been attempted. However, there currently isn't any definition of what a diligent search consists of, muddying the waters of what counts as orphaned work.

The Department for Business, Innovation & Skills declined to respond to Computing's enquiry into how it defines "diligent search". Perhaps it doesn't know?

The fear among artists is that if an image is uploaded to photo-sharing service Instagram, then re-posted to a blog that doesn't correctly source it, anybody who subsequently finds the unaccredited image will more than likely use it without attributing it to the original owner. A search for the owner is likely to result in nothing. That raises the possibility of photographers losing income as their images are replicated online without consent; at least that's what opponents argue.

But according to Jonathan Cornthwaite, partner and specialist in copyright law at Wedlake Bell LLP, the fact that the definition "diligent search" is unclear is no coincidence, while worries about the impact on orphan works are premature.

"This is deliberate, for the definition and procedure are going to be spelt out in the regulations to be made by the Secretary of State pursuant to the act," he told Computing.

"As is so often the case, the devil will be in the detail, and until we know what these regulations say it is probably premature to make much of a fuss about the subject, even though the photographers and their trade association have already gone on the warpath."

However, Cornthwaite believes the new laws relating to orphaned works should have received their own legislation, rather than being bundled with the Enterprise and Regulatory Reform Bill, but nonetheless, argues the act is much needed.

"In my view the issue deserves to have been dealt with in a separate free-standing copyright act," he said.

"But, even though the procedure adopted is less than ideal, the substance of the orphan work law reform seems to me to be essentially a good idea in principle, and most of the respondents to the government's consultation on the subject agreed that it benefited no one to have a wealth of copyright works being entirely unusable simply because the rights-owner could not be contacted."

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What does 'The Instagram Act' mean for online image copyright?

The government says it's much-needed legislation, but critics argue it allows wholesale theft of copyrighted material. Danny Palmer examines the implications of the The Enterprise and Regulatory Reform Act

But there are those who worry about the implications of the legislation. Stop 43, a coalition of photographers and press have criticised it, accusing the government of sanctioning wholesale image theft.

"The powers breach copyright owners' exclusive right of authorizing the reproduction of their works, because it will be legal to exploit the works without their owners' knowledge, permission, or payment to them. In practice the works will remain under copyright, but that copyright becomes meaningless and worthless," the organisation said in a statement.

"The copyright owner will get no benefit whatsoever from the commercial exploitation of his work; work which was often made with high skill and at considerable difficulty and cost, in order to generate licensing income for its creator."

However, the Intellectual Property Office, the government body for granting IP rights, has defended the legislation, insisting it doesn't remove copyright.
"The powers in the Enterprise and Regulatory Reform Act 2013 aim to make copyright licensing more efficient," a spokesperson said.

"They are intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders.

"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."

Ultimately, the true impact of the legislation will only been seen once The Enterprise and Regulatory Reform Bill officially becomes the law. Much of that, it seems, will rest on the as yet unanswered question of what a "diligent search" is defined as.