Analysis Photographers, illustrators and authors will be amongst those to lose their digital rights under radical new proposals published by the Government today. New legislation is proposed that would effectively introduce a compulsory purchase order, but without compensation, across an unlimited range of creative works, for commercial use.

Millions of amateurs who today post their images to Flickr and automatically receive the full protection of the law, would also lose, unless they opted-out.

The changes involve orphan works reform - floated as Clause 43 of the Digital Economy Act in 2010 but killed off by photographers - and an Extended Collective Licensing (ECL) program. The white paper follows intense lobbying by the culture sector and large corporate users of copyright works, such as Google, who wish to lower their costs.

It would operate roughly like this. A new agency, let's call it 'Bastard Ltd' could apply to become a licensing authority for a given class of work, for example, cartoons or poems. It could then license any work in that class without the rightsholder's permission, for any fee it cares to set, so long as it was "significantly representative of rights holders affected by the scheme". Amazingly, Bastard Ltd would have no obligation to return revenue gained to the rightsholder, if it couldn't find them. The obligation would fall upon the rightsholder to keep the agency updated at all times - the reverse of the law today. The Government calls the proposals 'voluntary', but it's actually anything but: if you don't like it, you too will have to opt out.

It's certainly great news for large publishers, and wannabe-publishing empires such as the British Library, and other large corporate interests, but that freedom comes at a price. The fundamental presumption of international copyright agreements is turned upside down by the proposal, and this assures a bumpy ahead for the Government. How so?

Copyright is internationally recognised as a basic individual, exclusive property right. Weakening this means the individual loses the ability to protect their work, and destroys markets. So in order to protect the individual, all the major treaties and international agreements (WIPO, TRIPS, the Berne Convention and the EU's copyright directive) have a 'three step test' against which new legislation must be measured. Limitations are only permitted "that do not conflict with the normal exploitation of the work" and "that do not unreasonably prejudice the legitimate interests of the author / right-holder."

One might think that the Government can afford world-class legal advice, but as with the rush to Iraq nine years ago, it doesn't seem to want to listen to the advice it's been given. An expert on collective licensing consulted by the IPO told Parliament in May that the proposals were illegal. It's pushing ahead regardless.

“Now somebody has told those very nice people at the IPO that ‘This is the answer that has to be provided'. I was left asking myself – I wonder where that decision comes from?” Hubert Best told the All Party Parliamentary IP Group's enquiry into the IPO in May.

The proposals go much further than the EU's copyright directive, in explicitly allowing broad commercial use.

"The Government wants to get its own scheme into law before the Directive lands and limits what can be done," one rightsholder told us.

So what happens next? The Government wants primary legislation to allow the new copyright regime - and it will want it in a hurry to head off Europe. If legislation succeeds, then a Judicial Review into the way that officials dealt with the legal advice they received - which clearly states the proposals are illegal - can be expected. Given the precedent, ministers and officials feel it's worth the risk.

You can find the White Paper on the IPO's Hargreaves pages here, and some good deep background here. ®

Bootnote

You may be wondering why you haven't heard of such a radical scheme before. And with good reason. When the Hargreaves Review was published in May last year, the ECL was omitted from both the Executive Summary, and the main bullet points in the press release. It was was buried deep in the text. It's left as an exercise for the reader to speculate why. ®