The New Land Rush

What the heck is going on in Europe with regard to copyright these days?

The Register reported a couple of weeks ago that the UK now assigns any image that lacks information identifying the owner to an “extended collective licensing pool”. The upshot is that anyone can essentially take any picture that lacks metadata and use it for any purpose, including commercial. (OK, I’ll grant you they’re not the most staid, reliable journalistic outlet, but in this case they do seem to have the core facts straight. Other news outlets are reporting similar facts.)

At the moment, the only sure way to keep your photos out of the pool is to register them with the UK’s PLUS registry or the US Copyright Office. Correction: the other way is to not put them online. Keep in mind that many hosting sites routinely strip out image metadata either when the pictures are uploaded or when they’re displayed.

In fairness, I’ll note that the UK Intellectual Property Office disputes the interpretations of the act in The Reg’s article. Putting on my “I Am Not A Lawyer” hat, though, I’ll note that even in the UK IPO’s document, it notes that anyone not wishing to allow their work to go into the pool would have to opt out. This seems like it would impose a significant burden on anyone not in the UK.

Meanwhile, across The Channel, the French have their own pool going. As the SFWA-affiliated “Writer Beware” blog reports, the ReLIRE database is now online. The database is intended to list all works published in France prior to 2001 that are currently out of print. If a work is not removed from the database within six months of its listing, the right to digitize it and to exploit that right (i.e. to publish it in digital form) will transfer to a collective management organization. Note that the database includes not just works by French authors, but all books published in France.

As is usual with a database project on this scale, the data is apparently filled with errors (books still in print, books published after 2001, and books that are already available in digital form have been listed). This means that anyone who has ever had a book published in France needs to check the database and opt out in writing prior to the deadline – for each book. In other words, it’s an ongoing effort, and for many authors, an effort that must be conducted in a language they don’t speak at all. Oddly enough, French is far less of a universal language today than it was a few hundred years ago. (But I digress.)
Don’t get me wrong, here. I’m part of the lunatic fringe that thinks the current state of copyright protection is excessive*, but this sort of preemptive grab and the use of opt-out schemes sets my teeth on edge.

* For those not in the know, in the US copyright protection currently lasts for the life of the author plus 70 years for anything created since 1978 and any work-for hire (typically works copyrighted by corporations) get 95 years from the first publication; works created earlier have varying terms of protection, but the upshot is that very little is entering the public domain. Barring further changes to the law, it looks like there will be a bit of a public domain land rush in 2047.) Various international treaties have resulted in most countries offering similar protections; a quick perusal of Wikipedia suggests that life plus 50 years is most common. I’d prefer not to start a discussion of what I think the correct span should be (at least not right now), but just to give some context to the current discussion, I do think that it should be at least for the lifespan of the creator.

The main thing these two schemes (and others like them) have in common is that they set aside a small portion of any proceeds from the licensing of the affected works to reimburse any creators who might manage to prove ownership of included works, with the lion’s share of the proceeds going to the government and independent company that runs the licensing pool. And in the course of establishing the schemes, they force creators to monitor laws in foreign countries and deal with foreign languages – which takes time away from creating new works.

Does that latter complaint sound familiar? It should – I made a similar point in talking about electronic self-publishing and the need to be your own publicist, bookkeeper, copy editor, and several other roles traditionally filled by publishers. This would be another role added to the list.

Just to invoke the maximum amount of paranoia here: I note that Amazon, like many large, web-based companies, has arms in France and the UK among others. Could a good lawyer make a case that publishing through Amazon’s self-publishing arm constitutes French publication?

One final note before anyone suggests that I’m ignoring similar efforts in the US, such as the Google Book Search project (now in its eighth year of raising hackles). The difference is that Google Book Search is an entirely private project. While some of the issues being argued are similar, there is no federal involvement. Corporations are designed to maximize profits. Governments should not be.

The parallels with the great land rushes of the 1880s should be obvious. Then, the US government carved out large chunks of land in “Indian territory” and gave it to whoever got there first. Seems like in Europe, photographers and authors are the new “Indians”.

2 thoughts on “The New Land Rush

  1. Your sister comes late to this party; however, in regards to the question of whether publishing via Amazon’s self-publishing arm could be argued to constitute “publication in France,” I’d recommend that the hypothetical “good lawyer” first look closely at the actual legal entities involved. Without doing much in the way of due diligence, but having dealt with the Amazon mammoth more than once, their standard practice is for each business arm to be established in a separate entity, so it’s an “Affiliate” potentially, but likely to be a different entity than any entity operating under the laws of France.


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