In the fifth part of our AOP se­ries, Nick Dun­mur ex­am­ines how copy­right en­ables creators to safe­guard their work

Computer Arts - - Contents -

The lat­est part of our AOP se­ries fo­cuses on this fun­da­men­tal is­sue

The As­so­ci­a­tion of Pho­tog­ra­phers (AOP) cel­e­brates is 50th birthday in 2018 and we re­main as pas­sion­ate about pro­mot­ing and pro­tect­ing our mem­bers as we did when the as­so­ci­a­tion was first es­tab­lished in 1968. We fought tire­lessly for the Copy­right, De­signs and Patents Act that thank­fully came into force in 1988. But what does copy­right ac­tu­ally mean for a com­mer­cial pho­tog­ra­pher to­day?

Copy­right un­der­pins the na­ture of how nearly all pho­tog­ra­phers make a liv­ing. As a form of in­tel­lec­tual prop­erty and en­shrined in leg­is­la­tion (the afore­men­tioned Copy­right, De­signs and Patents Act 1988), it is a prop­erty right and gives creators the abil­ity to gen­er­ate in­come by li­cens­ing the use of their en­deav­ours, as op­posed to sell­ing ‘units’ of pho­tog­ra­phy, as if they were fac­tory own­ers shift­ing boxes of wid­gets. The words ‘copy­right’ and ‘li­cens­ing’ are equally ap­pli­ca­ble to all forms of cre­ative out­put, not just pho­tog­ra­phy.

This no­tion of sell­ing use not unit is vi­tal to mak­ing our busi­nesses sus­tain­able as well as main­tain­ing and safe­guard­ing the in­dus­try in which we work, not just for our­selves but for the next gen­er­a­tions of pho­tog­ra­phers who seek to carve out a liv­ing as we have done. Con­trary to what some might believe, most pho­tog­ra­phers, with a few rar­efied ex­cep­tions, do not make huge in­comes and in fact year-on-year since the ad­vent of dig­i­tal imag­ing and the wide­spread use of the in­ter­net, these in­comes have shrunk over­all. It has be­come harder than ever to gen­er­ate enough to pay for the busi­ness over­head and a decent enough salary to en­joy a rea­son­able life­style – noth­ing fancy or over­the-top, but some hol­i­day time and a few bells and whis­tles that make life more com­fort­able. It’s true that we are very lucky to be able to earn from some­thing that most en­joy as an ac­tiv­ity and would do re­gard­less of whether we were get­ting paid for it, but that is not the point. The moment you’re a pro­fes­sional, the scene shifts and it be­comes nec­es­sary to think about the bot­tom line and the fu­ture.

Copy­right – or, the right to pre­vent and con­trol copy­ing – gives us flex­i­bil­ity and gives our clients and buy­ers pro­tec­tion over the use of a cre­ative piece of work. It is the case, how­ever, that not enough of our clients and buy­ers un­der­stand that this cre­ator’s right is en­shrined in law, was hard-fought for, and that fees paid to us do not au­to­mat­i­cally con­fer own­er­ship or ti­tle in the work to them. This is no dif­fer­ent to if you were to buy a mu­sic track or a book; you do not own the con­tent but have pur­chased the right to use a copy for your­self. You might own the pa­per the book is printed on, but you do not own the words them­selves, like­wise, you might own the hard drive or me­dia the im­age sits on, but you do not own the im­age it­self. The fees we charge cover our in­vest­ment in skills, train­ing, equip­ment, in­sur­ance, some profit (we’re in busi­ness, af­ter all) and gen­er­ally also in­clude some el­e­ment of li­cens­ing. This helps keeps costs to the client lower than they would be if the client wished to own the work cre­ated out­right.

Un­less a pho­tog­ra­pher as­signs the copy­right in their work in writ­ing to some­one or has ac­cepted the terms of a con­tract that con­tain a copy­right as­sign­ment, the own­er­ship of the in­tel­lec­tual prop­erty rights, or copy­right, re­mains firmly vested in the cre­ator.

Sit­ting along­side the eco­nomic el­e­ment of con­trol­ling copy­right is a set of moral rights, equally en­shrined in the same leg­is­la­tion. These are there to help pro­tect us, in terms of rep­u­ta­tion (and hence our abil­ity to earn), as well as af­ford­ing the client or com­mis­sioner some pro­tec­tion in the form of the right to pre­vent pub­li­ca­tion in cer­tain cir­cum­stances. They are what’s called in­alien­able rights, so they can­not be sold or as­signed, but they can be waived and of­ten we will see con­tracts that seek an as­sign­ment of copy­right as well as a waiver of moral rights.

Lastly, it is worth men­tion­ing that there are sev­eral ex­cep­tions to copy­right law, in­stances when the law does not ap­ply to cer­tain uses of works pro­tected by copy­right. We might con­sider these to be im­por­tant to balance the rights of the cre­ator against the needs/de­sires of a po­ten­tial user of a piece of work. Suf­fice it to say that the copy­right regime in the UK is one of the best there is. Al­though there is room for im­prove­ments, over­all it is a sys­tem that’s em­u­lated across the world.

Above: Copy­right should es­tab­lish a sys­tem that ben­e­fits both cre­ator and client.

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