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Changes to UK copyright law put Facebook, Twitter and Instagram images at risk

Users needn't get too worried yet
Tue Apr 30 2013, 16:25

USERS OF POPULAR SOCIAL MEDIA WEBSITES such as Facebook, Twitter and Instagram are at risk due to changes to copyright law in the UK that could allow others to exploit photos that they upload online.

The adjustments are contained in the Enterprise and Regulatory Reform Act, or as it has been nicknamed, the "Instagram Act", which was passed through Parliament last week.

What the act doesn't mean, unlike what many reports around the web have suggested, is that users can take any image posted to a social website and use it as they wish.

We spoke with Adam Rendle, an associate lawyer at law firm Taylor Wessing, who explained what these changes mean to social media users.

"Before the introduction of the act, the law was that any copyright work cannot be used without the authority of the owner of the copyright unless a defence applies," Rendle told The INQUIRER.

"So if there was a picture on Facebook or in Flickr that is then used in an advert for example, then that can't happen without the owner of that photo saying 'yes' or 'no'."

"That position hasn't changed; this act does nothing to change that."

Rendle made clear that, unlike what many media outlets are reporting, the change in the law doesn't automatically change the policies of social media websites such as Facebook or Instagram.

"If it wanted to, Facebook could change its terms and conditions tomorrow and say 'if you post a photo then anyone can use it however they like'. What this act doesn't do is automatically do that," Rendle added.

"What this act does is introduce the ability for other things to happen."

These "other things" enable the Secretary of State (SOS) to make further regulations, which allow, or enable other people to allow use of "orphan works", which refers to copyrighted materials, not only photographs posted online, but also texts, music and videos.

In the past, orphan works were typically older media, such as old recordings where the owner could not be tracked down and because of old fashioned copyright law, the works could never be made digital or used without permission until the copyright expired.

However, many images found online are being "orphaned" shortly after they appear due to the fast and ubiquitous nature of images that are uploaded, retweeted, shared and pollinated around the world, making it impossible to track down the original owner.

The new Act means that "would-be users" such as commercial publishers could potentially pay a fee to use these "orphan works", hence why social media users should be concerned about the new law.

Even more worryingly, to prove a work is "orphan", the would-be user has to show that the original copyright owner cannot be found by carrying out a "diligent search".

We don't know exactly what a diligent search means yet, because the full final version of the Act hasn't been published.

"Even though it's now law, I'm working the basis of the most recent draft of the bill which was in February," Rendle said. "We can't be specific about the detail of the legislation until they publish the final thing."

Rendle explained that from the draft, a diligent search looks to be a way to prove there's no way for the would-be user to find the author.

"It would either have to go to the person who has been authorised by the SOS to grant orphan works licenses or, if the SOS puts in place a standing licence to use an orphan work, then it would have to fall within the conditions of a standing licence, more than likely a body you'd have to go to and say 'can I use it?'," Rendle added. "And you'd have to satisfy the conditions of that licence, like paying a reasonable rate."

We haven't seen the final wording of the Act yet, but all details regarding what a diligent search requires will follow. Nevertheless, if a diligent search doesn't require much effort, publishers could be using users' images for promotional material on the basis of a simple Google search. µ


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