UK loophole: Why your Facebook photos may show up on a billboard

New UK law has artists and social media users uneasy. The act would allow companies to use some images without the photographer's permission.

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    A father takes a self portrait photo of himself and his son with his smart phone in a park Sept. 16 in Rio de Janeiro.
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British Parliament passed an act that could allow businesses in the UK to use photos obtained from Facebook and Instagram without permission.

Many photographers, amateur and professional, are fearful the act will enable their work to be exploited without credit, permission, or payment. 

The UK government says the act streamlines copyright licensing for works of unknown authorship.

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This alteration to copyright law was tagged into a larger act aimed at cutting through regulatory red tape. Under the Enterprise and Regulatory Reform Act – which last week received Royal Assent after passing parliament – “orphan works,” or works with an unknown author, could be used commercially or non-commercially.

The act alters the standing copyright regulations around “orphan works” by allowing businesses to pay a fee to use them if they can’t find the author. (The agency that receives the fee has yet to be established.) Usually, you’d have to wait for the copyright to expire to use an orphan work. 

Orphan works include books, music, photos, and films of unknown authorship, but critics of the legislation say photos are particularly ripe for the taking. 

The policy change still has one final tiny hurdle – that of authoring the “statutory instruments” or delegated legislation – that is, the exact workings of the law have yet to be formalized. Lawmakers have outlined a general plan, and that plan has been approved, and now all that’s left is filling in the blanks. A statutory instrument has not been voted down in 36 years, making it doubtful that any will this time. 

The UK government says the purpose of the alteration is to make obtaining the copyright license of legitimate orphan works more efficient. “The powers [established in the act] do not remove copyright for photographs or any other works subject to copyright, nor do they allow anyone to use a copyright work without permission and free of charge,” a spokeswoman for the Department of Business, Innovations and Skills told the BBC.

The problem many see is, when a picture gets posted online, it gets shared around and posted on others’ walls, tweeted, and cross-tweeted, to the point where the original author can be near impossible to find. The average Internet user doesn’t include their author info in the metadata of all of their Instagram photos, and many images are orphaned soon after they are uploaded to the Web.

A media company can claim an image without ID after making a “diligent search” for the owner. If they can’t find one, they can then sublicense the work – in other words, they can obtain a picture that’s not theirs and charge others to use it, but only if they can’t find the author. 

Many foresee a barrage of legal complaints revolving around the “diligent search” portion of the law, and whether or not a company actually searched “diligently.”

Greg Lastowka, professor of law at Rutgers School of Law-Camden, doesn’t think diligence will be quite so loosely interpreted. “There are very powerful image search engines out there right now,” he told MSN news. “Using an image search technology that looks all over the Web for a photo, or matching specific attributes of a photo, you can do a pretty good job of tracking the creator.”

Some of those opposed are upset that the alteration to copyright law has been inserted into an act that has nothing to do with copyright law as a whole.

"If this is copyright legislation, this deserves an act called the Copyright Act," said intellectual property expert Iain Connor to the BBC. "This [alteration] should not be tagged into a piece of legislation that has nothing to do with copyright."

Anyone that wants to use an orphan work will have to prove to an independent body that it performed a diligent search, says the BBC, and that body would then allow them to pay a licensing fee. That independent body will be outlined in the statutory instruments that haven’t been written yet.

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