Our response to the IPO consultation on Copyright and Artificial Intelligence

Back in December the Intellectual Property Office (IPO) launched a consultation on the use of copyright material for training AI models. They pointed out that this has presented new challenges for the UK’s copyright framework, and many rights holders (especially photographers) have found it difficult to exercise our rights in this context. They pointed out that it is important that copyright continues to support the UK’s world-leading creative industries and creates the conditions for AI innovation that allows them to share in the benefits of these new technologies.

This consultation sought views on proposals to deliver against the government’s objectives for this area, which are:

  • Boosting trust and transparency between sectors, by ensuring AI developers provide right holders with greater clarity about how they use their material.
  • Enhancing right holders’ control over whether or not their works are used to train AI models, and their ability to be paid for its use where they so wish.
  • Ensuring AI developers have access to high-quality material to train leading AI models in the UK and support innovation across the UK AI sector.

Thanks to a great deal of hard work from Board Member Andrew Wiard we have made a submission to the consultation which makes it clear that we, as photographers, have a lot to lose if the Government introduce an opt-out system for those wishing to not have their work used for creating AI models. We have pointed out that the current copyright laws, if enhanced and properly supported, offer rights holders the best chance of protection against widespread copyright theft that these AI models are employing.

If you’d like to read it, you can find The BPPA’s submission here

EU Copyright Directive to be debated in European Parliament

Tomorrow (26th March 2019) MEPs will vote on a controversial EU directive to copyright work used on the web. It sets terms and conditions for others to reuse content (posted by people like us) commercially.
The battle has been between the tech giants, whose business model is all about reusing other’s intellectual property without license or renumeration, and us ‘the creative community’.
Scares have included that ‘readers will be unable to share links’ (wrong) or ‘Wikipedia will collapse’ (nonsense). Many of us have had content stolen by others to market their photographic services from our clients’ own media sites, and now Publishers’ Right (Article II) in the directive will allow us to chase our payment, which should stop many thefts. It should allow a revenue stream that before was tricky to say the least.
As Angela Mills Wade, the director of the European Publishers Council is quoted, “a vote for the directive will be a vote for fairness, for culture, for creativity, and crucially, for the future of Europe’s professional, diverse independent press.”

Alamy – a follow-up

The UK Press Gazette quoted The BPPA’s open letter to Alamy’s CEO in their piece about his video signalling his intention to reduce the photographers percentage of royalties to 40%. This morning the UKPG asked us to provide a response to James West’s latest video where he offers to keep the 50% split for exclusive content. We provided the following text:
 
“Alamy’s move to alter their commission structure has brought a large number of other issues to the surface such as the low prices they sell pictures for, their broken promise that when they reduced the photographers cut to 50% they wouldn’t go further and their somewhat grudging acceptance that it is the commitment and buy-in from thousands of photographers that has got them to the positive position in which they now find themselves.
 
The BPPA welcomes Alamy’s decision to reconsider their reduction in the percentage paid to photographers but in making this only for exclusive content they are still going to anger many of our members. One of them has said “exclusivity is appropriate to a delicatessen, not a Walmart” and this sums up how most feel.
 
Should they push ahead with this plan the details of how they manage this will be complex. Will photographers have to make some sort of declaration for every single picture retrospectively? Will the burden for proving exclusivity rest with the photographers? Our opinion is that Alamy are still not listening and are still cutting the income of all those photographers who for very good reasons do not wish to, or cannot, surrender exclusivity.”

An open letter to Alamy CEO James West

Dear Mr West
When our members first pointed out that Alamy was reducing the commission that it pays to contributing photographers the first reaction was “oh no not again”. Sitting and watching the video that you posted on YouTube didn’t help. 
Alamy is a company whose success is built on its relationship with the people who have trusted you to handle their stock and live photography sales. Relationships built on trust are destroyed very quickly when one party moves the goalposts and that’s exactly what you are planning to do.
Many of our members are contributors to Alamy and a significant number of them have invested incredible amounts of time and money supplying images through your service. They have done this based on an expectation of an equitable split of sales. The graphs showing increasing revenue and turnover do not show the whole picture when it comes to the incomes of individual contributors. Very few of them have had the degree of income or turnover growth that Alamy can proudly boast about. We know many photographers whose income from Alamy has plateaued at best and, in a number of cases, reduced significantly.
We are not stupid. We are amongst that group of photographers that you mentioned who understand the market. We know that many individual images fetch lower prices than they once did, that it is a complex and competitive market and that sales models have changed since 1999. We understand that the financial uncertanties of Brexit mean that you have to be cautious over the next twelve months or more. We understand that Alamy wants to improve and grow. We understand that you want to fund those goals from within your own revenues but we don’t understand why you would do so at the expense of the contributors whose effort has been one of the key drivers of your rise to a turnover in excess of $30,000,000.
In essence you are asking hard working and dedicated photographers to take a 20% pay cut. It doesn’t matter that Alamy is selling more and has the potential to sell even more in the future if your investments in technology and research pay off. By reducing the photographers percentage you are asking them to pay for those developments and we would be interested to know if anyone at Alamy is taking a 20% pay cut to help fund their futures.
You will, no doubt, have read the comments underneath your video on YouTube. The anger is there for all to see and there are many photographers on there who are going to reconsider their relationship with Alamy. They don’t agree with your assertions that 40% of more sales is better than 50% of a slower increase in sales and, as individual photographers, they are probably correct.
We would ask that you reconsider this move and that you continue to pay existing contributors 50% of the sales. If new contributors want to join then maybe you could agree the 60/40 cut with them. There has to be a way to keep the trust of our members and still be able to fund development because, as things stand, Alamy keeping 60% of fewer pictures of lower quality is a distinct possibility which benefits nobody.
Kind Regards
The BPPA Board

FREE MONEY!!!!

Ok – now we have your attention.
Every year DACS ( The Design and Artists Copyright Society) collects millions of pounds worth of royalties due for use of our photographs from libraries, universities and other organisations. It is payment for lending books, photocopying and things like that.
They then redistribute this money to us through the “Payback Scheme” – and it usually comes to several hundred pounds each.
THIS MONEY BELONGS TO YOU – IT IS OWED TO YOU – BUT YOU HAVE TO CLAIM IT!!
You only have until September 30th this year to make your claim – but it only takes about half an hour to do – and you will get a decent payout just in time for Christmas.
We realise that many photographers are daunted by the prospect of making a claim – but it really is very simple – and can all be done online.
To help you with this – here is a beginners run through of what you will need to do…
REMEMBER DO NOT ALLOW AN AGENT TO PERSUADE YOU TO ALLOW THEM TO DO IT FOR YOU – IT’S YOUR MONEY – DON’T GIVE AWAY SEVERAL HUNDRED POUNDS FOR NOTHING!
So – here’s what to do.
Firstly you have to get together some info.
(Yeah – I know this sounds like a drag – but look at it this way – Its a couple of days wages for half an hours work)
1. Get together the title and date of three (thats all!!) books that have used your pictures in the whole of your career – it doesn’t matter what they are or when they were published , just so long as they have an ISBN number.  You can look up this info via Google or maybe find it on Amazon.
2. Now find the same info for three magazines that have used your pictures. Not in the last year – but in your whole career.  I’ll say it again – thats three pictures used in magazines EVER!!  All you need if the title, date and the ISSN number of that magazine – again you can get this info with a google search.
(If you don’t have cuts or are struggling to remember dates then maybe you can work backwards – go through your picture archive and dig out some pictures you know made it into a magazine, and then check magazines shortly after this date?)
3. Finally – Have you had any pictures used on TV in the last year? Make a list of these too – although these have to have been during 2015
Thats it – you’ve done the hard part.
4. Now go to secure.dacs.org.uk and register.
Fill in your relevant details; that you are claiming for photography, how many years you have been working as a ‘visual artist’, what organisations you belong to, etc.
Now make your claims…
Firstly books.
You are claiming for all uses throughout your career up until the end of the relevant claim year, in this case ending 31st December 2015 – but you don’t have to list them all!
As we said earlier DACS cannot identify specific secondary uses of your work, so all you need to do is prove that you have had pictures published in books at some point in your career. They only ask for the ISBN number, title and year of three books included in your claim.
Then they then ask you to estimate how many times, throughout your career, your pictures have been used in books.
Finally then ask you to tick off all categories into which these uses fell – Academic, Art, etc.
And that’s it.
Next – Magazines and Journals.
Its an identical procedure – asking you to list three magazines where you have had pictures published – including their Name, issue number or cover date and
ISSN, ISBN or barcode number
Then – Television.
In this case only your claim is restricted to uses in the relevant DACS claim year, for now 2015. You are asked to enter how many uses in specified TV channels. Skip this if its not relevant or you can’t remember.
Thats all they want to know about pictures published.
Really.
It’s that simple.
After that all you have to do is read and accept the mandate authorising DACS to act on your behalf, which you sign with a tick. Then enter your bank details, tax status, and VAT detail. And finally you are asked to accept their Payback T&C’s.
(Please read the mandate and T&Cs – make sure you understand and are happy with them!!)
That’s all you have to do. Job done. Sit back and wait for a few hundred quid to drop into your bank – just in time to buy xmas presents or to pay for the xmas party!!!
But, do it now, before September 30th!
NO, REALLY – DO IT NOW – DON’T PUT IT OFF!!
Do not allow your agency to claim on your behalf – they take a big commission and in some cases even an admin fee too. Whatever they say, it’s your choice. Beware any new agency small print you may not have read authorising them to claim instead. They cannot do this without your express permission.
Do not give it – it’s your money. Not theirs.
(If they have in the past claimed in your name, and are now being a bit difficult about releasing the necessary sales info, you may well find DACS accepts the details provided in those previous claims as evidence for your claim today).
Finally, if any of the above is unclear, go to DACS FAQ’s:
DACS FAQ’s
Or ask us via the BPPA members Facebook page.
DO IT NOW – AND DON’T LET ANYONE TELL YOU THAT THEY HAVE A RIGHT TO HALF – ITS YOUR MONEY!!!

Self-publishing 'Coast People'

Ian Forsyth


As I write this post sitting at my desk in my home office I am surrounded by an ever-increasing collection of photography books. Books that I have been gathering over many years firstly as an amateur with a keen interest and now as a working professional photographer. Over these years and I assume like many other photographers I have always found that seeing a photograph in the printed form is indeed a wonderful thing. Whether it was a print that I made myself in a basic but functional darkroom at the start or then later in the digital world as a print came rolling unceremoniously out of an inkjet printer tethered to my laptop it was still a great feeling.

The photobook is an extension of that.

A way of seeing the work of photographers I admired and the kind of work I was interested in. Looking over the titles surrounding me I see familiar names that have inspired me through my photographic career. Names like Tom Stoddart, Don McCullin, Larry Burrows, Philip Jones Griffiths, Robert Capa, Jane Bown, Robert Frank, Robert Doisneau, Weegee, Bresson, Sean Smith….the list goes on. All of them offer ideas and inspiration to the photographer and provide an insight into a time and place in history and of course it goes without saying they provide fine examples of photography. So as a photographer one of my ambitions was always to have my own book of photography. To have my work printed and have something that I could be proud of and which I would be happy to have in my collection.

My journey into publishing has been an adventure to say the least. It’s been quite a stressful undertaking. It has been financially challenging and it was a long process that at times nearly reached the point where I simply let it go thinking it was too much of a task to take on. As my collection of rejection letters from publishers increased I thought that the idea of having a book picked up by a publisher was pie in the sky so when I received a letter saying that a publisher was interested I was all ears! Now we’re not talking Steidl or Thames and Hudson here! I’m not talking about an international publishing house knocking at my door! This was a decidedly smaller affair and one that would result in only a small run of books. To try and generate interest and arrange with bookshops that would be willing to stock the book meant I had to be very proactive and most of the publicity for the book fell upon me.

Things were going well. Layouts were all done. Captions were written and pictures decided upon. I had approached some local media and started to generate some wider interest in the book. I provisionally secured nearly thirty orders in one day just by posting it on social media. I had spoken to my friend, a photographer who’s work I admire greatly, Tom Stoddart, who kindly agreed to write the introduction for the book and all was going well. But problems arose when I saw the quality of the prints in the book. They weren’t what they should be. Not for a good quality photography book.

Now I was under no illusions about this book. I had no thoughts at all that this would make it into the collection of the world’s great photography books! I’m not under any impression that this small addition would make a difference to the world of photography as a whole. But that wasn’t the point. This was my book with my pictures in and so I wanted it to be right and I wanted it to be printed well. So after a few weeks of trying to work through the problems with the printing it became clear that it wasn’t going to get resolved and I had to look for an alternative way of doing it. Now I’ve self-published a couple of one-off books before through the online company ‘Blurb’. So I knew that the quality was very good and at least with the template style options available there were plenty of ways of making the book my own and which gave me some creative freedom when I put it together. So I found myself going down the route of self-publishing to try and get this book off the ground. After a re-design and a change in layout I eventually had a finished copy that looked how I wanted it to look.

Now the financial outlay of self-publishing is one that shouldn’t be underestimated. Unless you have a few thousand quid put aside it’s an uphill struggle. So much so that the costs of producing a number of copies was, for me anyway quite prohibitive. I could have waited for a couple of years or whatever until I had enough money put to one side to allow me to produce a few thousand copies off but let’s face it…when do any of us get to the point when we ever have enough money to do something like that. Sometimes you just have to go for it and see where it goes. So my book, ‘Coast People’ was released on-line through ‘Blurb’ last month. It represents the culmination of a long-term photography project that I had been working on for around 5 or 6 years and is a visual document of something that I’m passionate about and which I have access to all year round. It looks at the coastline between an area called South Gare at the mouth of the River Tees in Cleveland and down the coast to Flamborough Head in North Yorkshire. With the book I’ve tried to show the people who live or visit and who use the coastline for recreation, sport and business or simply as a means to get a break away from whatever they usually do. My approach was to look for the simple, the quirky or the humorous. Some are posed portraits whilst the majority are just ‘as they happened’ without interference from me and which I hope, as a documentary photographer might form some part of a visual record of how people use the coast and which might help promote the heritage of the area and ultimately help protect it.

So only time will tell if it achieves this. But all the comments I have had back so far from those that have bought it have been very positive and as far as self-publishing goes? Well as a working photographer the financial aspect cannot be ignored in anything we do. The pursuit of a fair wage for what we produce is ignored at our peril and as professionals none of us should ever work for free! Occasionally however the challenges of taking on a self-publishing task might bring other rewards that might as yet not be immediately obvious. It can bring an understanding that in this oppressive digital age the production of a book of photography is a real-time extension of the digital world we now live in. A book has form. It has texture and feeling. It is a collection of pictures chosen over many months by the photographer and a collection that has been put together with pride and commitment. It is also quite addictive! I am also releasing a high-quality magazine at the start of December that shows a selection of my feature stories and documentary work from through the year. Called ‘Room 2850’ – after my blog of the same name – I hope to produce twice a year showing more of the stories I photograph.

So maybe give it a go? Turn that long-term project that has been simmering away for a few years into something tangible, something that can be held and looked at many times. Maybe a few copies will sell or maybe thousands will be bought but at the very least it is something which can stand alongside all your other photography books but which can claim to have the one thing none of the other books have…you made it.

 

You can get the book from Blurb here and you can see more of Ian Forsyth’s work here

 


           
Our Draft Code
 

Immediately after the Leveson Inquiry we started to think about how a code of conduct could be drafted for The BPPA that would help prospective members and the British public understand what our profession is all about.

We looked at similar documents from all over the world and we looked at the various codes of conduct and practice that our clients have already signed up to. It has been a massive task and we are proud to unveil what we are calling the “Final Draft” which was approved at a Board meeting last week. Here is the code in full:

The British Press Photographers’ Association Code of Conduct

Members of The British Press Photographers’ Association are professional photographers concerned with taking, editing and distributing news, feature, sports and other editorial photographs. Their work is predominantly for the British news media. The photographers take every care with their work, but it remains the responsibility of publishers to carry out checks concerning accuracy, damage to reputation, and the will of the Courts.



Press photographers should:


    

  1. Observe the highest ethical, technical and creative standards. They should conduct themselves in a manner reflecting those standards and be aware that their actions, both positive and negative, reflect on the profession as a whole
    2. 

  2. Not materially alter their images, or edit them in such a way as to give misleading impressions of news events
    3. 

  3. Provide accurate and comprehensive caption information
    4. 

  4. Resist any offers of payment or other inducements from third parties involved in the story to change the way they approach the coverage of news events
    5. 

  5. Remember they are subject to the laws of any country they work in
    6. 

  6. Always be aware of the codes of conduct observed by their employers and clients and act appropriately when working on their behalf
    7. 

  7. Treat people they meet in the course of their work with respect and dignity, giving special consideration to anyone suffering the results of war, crime or other difficulty or hardship
    8. 

  8. Protect their own intellectual property and respect the property of others
    9. 

  9. Defend media freedom, and the right to work in a fair and unfettered manner
    10. 

  10. Feel able to refuse any work involving excessive or unnecessary risks to themselves or others
    11. 



Ten clauses that sum up how we should behave rather than a set of absolute rules. This is important because we live in an age where there are lots of blurred lines and where each of us may well be doing a wide range of work for which each of these clauses will have greater or lesser significance. PR and hard news are very different and it is important that you read the Code with that in mind.

You will probably have questions about the wording and why it does and doesn’t feature X or Y and we are more than happy to answer those questions. We anticipate the most common query being about why it doesn’t have more specific rules and the answer there is in clause 6:

“Always be aware of the codes of conduct observed by their employers and clients and act appropriately when working on their behalf”

This is important because it refers to the IPSO Editor’s Code for those working for newspapers and other codes for magazines, broadcasting both in the UK and around the world.

According to our constitution this code can come fully into force once it has to be approved at a General Meeting and the next one is scheduled for the 4th of June in London.


             
What's going on at DACS? Part 2
Sir John Tenniel
In this second part of his assessment of what is happening with DACS, Andrew Wiard explains why the current situation is not something that photographers should accept.


“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”


Insisting on ALL secondary rights – does it really matter? Is it such a big deal?

Yes it is, but first, what exactly are these secondary rights everyone is talking about? Fact is you will not find a concise legal, or any precise, definition anywhere (or if you find one, please let me know). They can be defined negatively – they are those rights which are not primary. And primary rights are? For want of a better definition, the rights we exercise directly ourselves.This is how DACS describes, not defines, but describes secondary rights: those “ it would be impractical for you to license……. on an individual basis ”. At first sight all sounds plain common sense. Our primary rights  are those we exercise individually and directly (or through our agents) and as for photocopying, well, that’s best left to DACS. That’s secondary. 

But hang on, who decides what rights it is impractical for us to license, and how? What’s secondary and what’s not? Photocopying is pretty obvious, but where is the line drawn and can we trust those who draw it?

Take the strange case of the European “Memorandum of Understanding”.  I first wrote about this for the Stop43 website.  The point here (and I’m afraid you really do have to plough through all that to get it) is that the signatories to this European memorandum were plotting to consign our *primary* rights to collecting societies (you should also read DACS’s reply). The idea behind the MoU was  to republish out-of-print works, for the benefit of humankind of course, if the authors or publishers do not do so themselves. Their rights would have to be taken into account, but then what to do with embedded works, works embedded on the printed page?

Embedded Works? – photographs, to you and me. Ah, the solution is obvious – collecting societies!

Why? Why? If any publisher, any publisher, whoever they are, wishes to produce a new edition of a book containing a photograph which I have already licensed directly once, all I have to do is – do it again. Negotiate a further licence. Directly. Any photographer who supplies books for a living will do this as a matter of course. By any definition, we are not talking secondary rights here. These are primary rights. Our rights. Not secondary rights, the rights which according to DACS, are those it is “impractical for us to license on an individual basis”. But the rights we know perfectly well how to license directly ourselves. No doubt the publishers of out-of-print works will find dealing with us tiresome. All publishers find licensing any works tiresome. But however secondary rights are defined, they are most certainly NOT those rights which publishers find it oh so inconvenient to have to license on an individual basis! And we have no idea what other rights of ours will be considered secondary in future. This is why it is so important that any secondary rights agreement spells out precisely what rights are referred to, and any additional rights to be collectively administered thereafter are specified, negotiated and agreed in advance, and agreed without the threat of money being withheld.

A gang of European collecting societies agreed to this. And our UK rep there? – yes, you guessed it, DACS. Which is why, in their reply referred to above, they are so keen to make out that the memorandum doesn’t say what it means when it says what it says – or rather, as DACS puts it, it is all subject to consultation: “ a collective management organisation for visual works (such as DACS) would be obliged to consult with rightsholders prior to any agreement being reached “. DACS would consult. But that doesn’t explain what on earth they were doing going along with all this in the first place. Consult, over our *primary* rights? And, anyone remember being consulted?

DACS, consult? Really? The way they consulted about this new agreement of theirs? It went like this. First they got a small number of important figures into a room, told them all about the forces of darkness (true) but that none of this could be publicly revealed for fear of (legal?) consequences. Utterly false. It’s all coming out now, but nothing we couldn’t have been told right at the start. These figures were then to go out and tell all photographers, without going into  details, that they must sign up. Which, BAPLA  excepted, they then did. The one thing DACS did not do was consult their contributors. They represent us individually. They were after individual signatures. They should have talked to us, individually.

Instead, a series of inducements, “prizes”, to get people to sign up before the annual deadline. I was offered a prize draw, where I “could win up to £250 in vouchers to spend on art and photography materials” . And if I were to recommend Payback to a friend, “we’ll offer you both the chance to win £150 to spend at on art or photography materials at Jackson’s Art Supplies or Metro Imaging”. Talk about desperation!

Are we adults or kids to be tempted with sweeties?

No mention, of course, in these emails, of the new contributor agreement which had to be signed as the last stage of completing the claims form, or of its significance. Those discussions were only for the chosen few. If you doubt that, look at what happened to the NUJ’s NEC member for photographers Pete Jenkins, who dared to ask them what was really going on. DACS first offered him a meeting before the signature deadline. Then withdrew the offer, refused to meet him, saying they’d be holding a meeting for a wider group after the deadline. After the deal was done and it was all over! And, after the deal? Pete naturally asked to come along but was then told no, they were full up, and they had what they thought was a wide enough range of interested parties already.

Translation – no awkward squad, thank you.

Just before Christmas I received an email from DACS.


“ With the introduction of a new Payback membership, we are now able to formally consult with you on issues concerning your rights, and importantly, safeguard your existing and future royalties.”


What nonsense. They’ve been able to consult us, formally or not, for months. Before, not after, we had to sign. They just didn’t want to.

Let’s be clear what they did. They announced a new agreement. They said they would consult. But not, of course, the individual photographers required to sign. They then stuck to what they said in the first place. The DACS take it or leave it discussion, followed by their take it or leave it agreement.

And what if we did not sign? The payouts last Christmas were for sums collected before last year, that is before this new agreement which has only now come into force, collecting for future payouts in Christmas 2015. DACS was clearly saying, no signature, no payout. You couldn’t complete your claim for this year without it. In other words, they were applying this agreement retrospectively, to enforce compliance. Signing under duress – legal? – well, which one of us had the time, the energy, and most of all the money, to find out?

So, there you have it – consultation, DACS style.

This is serious. DACS say they will consult in future about collecting any other secondary rights. I think I now know what that means. We have given them the power not only to interpret that word as they see fit, but to collect whatever they think falls into that category, and regardless of what we think. They say we can always withdraw our signature at a future date, but so what? Because what we have signed up to now will now in all likelihood give them, under the new ECL regulations, the power to collect the “secondary” rights of all photographers, whether signed up or not. So you can unsign if you like, but you’re going nowhere as DACS will just carry on collecting.

What to do? The law is an expensive but no longer the only way to bring collecting societies to heel. Under the new ECL regulations they have to behave. So the CLA thinks it can collect for pictures but not pay photographers? Time to shop them to the Secretary of State. That’s one way.

There’s another. It will become increasingly practical for us to collect directly. Cue Paul Ellis of Stop 43: “ The solution is obvious – the Copyright Hub, which when implemented will suddenly make a load of ‘secondary’ rights ‘primary’, because it will no longer be impossible for individual photographers to manage them.” The future should indeed lie with the Copyright Hub, see here: https://www.copyrighthub.co.uk/ .

That however is still under development, that is for the future, and today we are already trapped by our signatures. And did we really have a choice?  For there’s no doubt whatsoever that the  vultures are circling. This from DACS earlier this month:


“ In DACS’ view, the CLA is trying to use its market power to reduce the existing 8% share of its revenues that go to visual artists and possibly risk the future of the Payback scheme. DACS has insisted that the existing arrangement should continue until the end of September 2017. This will help manage the transition to any new arrangements and protect our members’ incomes in the interim. To date the CLA has not accepted this.”


The latest is that DACS has now, using the authority we have given them, forced the CLA to accept this – temporary – deal. Only a temporary deal, but a deal none the less.

For this we have paid a heavy price. Let’s be clear. DACS may be on our side. But we have just given a hostage to fortune.


“The question is,” said Alice, “whether you can make words mean so many different things.”


“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”


         
A Gun To Our Heads – The new DACS Agreement, part 1
Andrew Wiard
In the first of a two-part blog post Andrew Wiard, a member of The BPPA’s Board, asks “What’s going on at DACS?”


Last year we all had to sign a new agreement, and if we didn’t – no annual payout at Christmas. So, why? Short answer, because DACS is at the bottom of a collecting society food chain, and they are all fighting like rats in a sack. Over our pictures, and our money.


Collecting societies – we photographers know that every year we get our DACS money, but not all of us know how or why. Here’s how it works. I’ll make this as simple as I can. In the beginning, way back in 1983, writers (through ALCS, the Authors’ Licensing and Collecting Society Ltd) and  publishers (through the PLS,  Publishers Licensing Society Ltd), established the CLA (Copyright Licensing Agency Ltd), jointly owned by them, for collective blanket licensing on their behalf. Which means authors and other right holders do not issue licences individually or directly, instead the CLA charges clients a one-off fee for a licence to make multiple copies of multiple works, without identifying any of the copyright owners.  So what are we talking about here? Essentially, the photocopying of books and magazines, though there are also other sources of income such as cable retransmission of TV programmes. Which all fall into the category of so-called ‘secondary’ rights. We exercise our ‘primary’ rights directly, collecting societies only stepping in where it is impractical for us to do so. After paying a small amount of money to overseas right holders, CLA then gives the lot to writers and publishers. So what about us then? We photographers said hang on a minute, we are copyright holders too. Eventually the CLA gave us our share through the DACS (the Design and Artists Copyright Society Ltd) payback scheme. Though with only an 8% cut – think that’s because we were late to the party.


Why not newspapers you might ask? Because they set up their own society, the NLA (Newspaper Licensing Agency), paying out to the newspapers, who then pay their freelance contributors any money they think they might owe. Or not, as is usually the case. Anyone remember getting an NLA payout at Christmas? Which is where all the recent fighting started, and that needs a blog all to itself, but briefly, authors were furious at not getting their share of the NLA money. And then a lot of magazine publishers jumped ship from the CLA to join the NLA instead, now re-branded NLA Media Access. After all, why share their (our) CLA money with writers? Or anybody? The ALCS began to fight NLA Media Access, while also fighting – I mean, of course talking – with the remaining CLA publishers over their shares from the CLA. Who have now decided to save money picking on DACS, by tearing up their agreement. That’s right – make the photographers pay! So what exactly are our brothers and sisters in the ALCS – the writers, photographers’ best friends – playing at? They are  joint owners, with the PLS, of the CLA! In the middle of this unholy mess, the CLA chief exec departed.


It would seem the CLA put a gun to the head of DACS, and so DACS put a gun to ours. Sign our new agreement here, or get no Christmas money.


Why so? What is this new agreement and how is it supposed to get DACS out of this hole? It requires us to sign over to DACS our secondary rights, exclusively. Actually a new agreement makes a lot of sense. Signing exclusive rights to DACS means they can stand up to the CLA, ALCS, PLS, NLA Media Access or anyone else trying to grab what’s ours, on firm, or at least much firmer, legal ground. It also means DACS can withstand scrutiny under both new EU directives and new UK legislation. Which any other organisation grabbing rights signed exclusively to DACS would – or rather should – be unable to do.


So what’s the problem? Why not just sign? The problem is that DACS is not just seeking the specific rights they already exercise on our behalf today, but ALL our secondary rights tomorrow. The distinction is crucial, see part two of this blog. I’m not the only one to object to this. BAPLA (The British Association of Picture Libraries and Agencies) said, rightly, that the new agreement should be confined to only those secondary rights currently being exploited by DACS, i.e. photocopying/scanning, educational recordings and cable re-transmissions. If DACS is to administer any further rights that should be the subject of future consultation. What could be wrong with that? BAPLA is right. Now we photographers don’t always see eye to eye with BAPLA , and especially when it comes to DACS. Many BAPLA members think they’re the ones who should be taking the DACS money, and a big cut, before handing the rest to us. We think it’s our money ( and it is ) and that we should deal direct with DACS, unless we choose, as some of us do, to go through an agent. Big money at a stake here. But whatever schemes BAPLA may now be planning, with our pictures, we do have common cause when it comes to how and what DACS actually collects. We and our agents must insist on our right to license our photographs directly without a collecting society coming in between – unless, that is, that is totally impractical and absolutely unavoidable.


All we should have been asked to do last year was sign up to what DACS had already collected in previous years. Now what could be simpler than that? But DACS wouldn’t hear of it. They seem to think they don’t have to listen to us – or rather, while they make a great show of listening, they just don’t take any notice. The obvious objections were repeatedly made. They didn’t change a word.


So where does this leave us? As far as I can see the picture now looks like this. The ALCS doesn’t know if it has the legal firepower to fight NLA Media Access. The CLA doesn’t know if it has enough to fight them or their new magazine publishers either. DACS doesn’t know if it has enough to fight the CLA. But there’s one thing DACS knew for sure – we individual photographers did not have the time, energy or the money to take them to court over our payout. So who’s in charge here – us or them? The photographers who took the pictures, or the organisation that claims to represent us?


That money was collected in 2013. In withholding our money to enforce a new agreement for the future they were applying it retrospectively to money that already belonged to us. That was our money. They should have paid it without question and then sat down with all of us to negotiate – repeat, negotiate – the new agreement.


Instead, when the CLA put a gun to the head of DACS, DACS put a gun to ours.


Why all this really does matter? – see Part Two.


       
An open letter to Time Inc UK
 

When several photographers started getting letters from Hamish Dawson, Publishing Director  of  Time Inc.(UK) Ltd, Specialist Sport and Leisure with a new rights grab which asked them to agree to sign away all rights in any work that they carried out for the magazines and websites in the group we decided to write to him. Below is that letter and below that is his reply.

We are pretty sure that few people will bother to go down and read what he said in reply but it is worth noting that in the final paragraph he says:

“If an individual contributor does not wish to enter into an All Rights agreement, it may be possible for that individual to negotiate a different arrangement, for example, a Qualified Rights agreement. Each case continues to be considered on its own merits, and that decision remains with the senior team on the brand concerned.” 

This is a long way from being the response that we would be looking for but it is a course of action that is open to individual photographers to follow if they are offered work by one of the Time Inc UK titles and they don’t want to sign the new contract.


Dear Mr Dawson


What would make a photographer with well over twenty years experience, a mortgage and a family tell one of his key clients to “get lost” – using language that we couldn’t and wouldn’t want to post on a public facing website?


The answer is your new rights-grabbing contract which includes a not-so-subtle line giving them a choice between signing what appears to be a massively unfair deal or losing any and all chance of supplying you ever again. Sadly, you aren’t the first major publisher and buyer of photography to decide that you want to tear up long-standing agreements which saw you buying licenses to use the photographs whilst the copyright remained with the photographer. Sadly, you probably won’t be the last either.


The reason that the old one was a ‘long-lasting agreement’ was because it was fair – the word ‘equitable’ even comes to mind. The fees paid were OK but the ability to re-sell the work after an initial period of exclusivity made the jobs worth doing. Had you, the publisher, substantially increased the fees payable to the photographers to redress this balance then that sense of fairness may have been saved from what most of those photographers feel will be a sad, painful and untimely death.


Receiving these letters just before Christmas has been causing anger, resentment and pain for a large number of photographers who can be excused for assuming that the calculation within the Time Inc UK management must be that enough existing people with no real option to do otherwise will sign and enough struggling photographers who don’t yet work for you will grasp their opportunity to get more work and keep their heads above water.


Make no mistake, this is not a small adjustment to the terms and conditions under which so many photographers supply work to you. This is moving the goalposts, repainting them and renaming them as ‘scoring portals’.


We would like to give you the opportunity to explain why this is being done. We probably know the obvious answers about maximising shareholder returns and the less obvious ones about protecting the brands but what about the relationship that you had with talented, creative and dedicated suppliers?


Does a rights-grab of this magnitude make it worthwhile destroying relationships that have stood the test of time and that have worked well?


Any explanation that you can provide will be shared with photographers because many of our members are struggling with your decision.


Kind regards


Neil Turner


[email protected]


Dear Mr Turner,


Thank you for your e-mail.


As you correctly observe, we are not the first publisher to re-evaluate our rights purchasing position, and a number of our agreements are indeed long-standing.


Unfortunately, while the agreements may not have changed, the markets, media and commercial circumstances in which we all operate have changed quite dramatically over the last few years, and we now operate in quite a different publishing and media landscape to the one which pertained  when many of our existing rights agreements were first set up.


I would first make the point that most of our existing agreements are between IPC Media and the contributor concerned. Since becoming Time Inc. (UK) Ltd., we have viewed it as necessary to bring these agreements up to date. Secondly, many of our agreements do not acknowledge the fact that the company now has significant and rapidly growing, digital publishing platforms and the new agreements reflect this development.


We have also been encouraging our specialist editorial staff to improve the clarity of their commissioning and written communication, and have set out some standards which we expect to be followed, and which we believe are in the interests of both contributors and the brands alike.


Regarding the All Rights agreement that is being sent to Time Inc. (UK) specialist contributors, it has been our practice for a number of years to ask many of our freelance contributors to enter into either an All Rights or Qualified Rights agreement when we purchase content from them. In many instances we’ve asked contributors to sign on-going agreements to cover all the material that they sell to Time Inc. called ‘Core Rights Agreements’. So the agreements that are now being dispatched, while they have been updated and re-worded, are not a new innovation and having a Core Rights Agreement in place ensures that payments can be made to contributors much more speedily than might be the case if individual contracts had to be sent out and agreed on a job-by-job basis.


If an individual contributor does not wish to enter into an All Rights agreement, it may be possible for that individual to negotiate a different arrangement, for example, a Qualified Rights agreement. Each case continues to be considered on its own merits, and that decision remains with the senior team on the brand concerned. Contributors should, however, bear in mind that commercial realities dictate that we will be using the content that we purchase in many different ways, both now and in the future and quite clearly, unless both parties are willing to enter an agreement that suits them both, there is no viable basis on which work can be commissioned or accepted.


I hope that this clarifies our position.


Kind regards


Hamish Dawson 

Publishing Director 


Time Inc.(UK) Ltd. Specialist Sport and Leisure


Golf Monthly; Rugby World; World Soccer; The Field; Shooting Times; Sporting Gun; Shooting Gazette; Shootinguk.co.uk; Angler’s Mail; Amateur Gardening


If you know any photographers who are affected by this or who might be affected by it in the future, please share this with them. The terms and conditions under which many of us work are being steadily eroded by publishers who seem to opt for the ‘nuclear’ all-rights option rather than consult with their previously loyal contributors and explore the more equitable route of agreeing licenses that suit the current world of publishing. It is also interesting to note that Time Inc haven’t tried to do this to their US photographers… YET!