Chris Shain, the AIPP board advisor on advocacy, spoke at the Productivity Commission public hearing on Australian intellectual property arrangement in Sydney – a final attempt to dissuade the commission from recommending a Fair Use exception.

We found this photo on Google Images with the metadata stripped out! An Orphan Work perhaps? Source: AIPP.

He was one of 20 participants speaking on the day. While Shain expressed a photographers’ reliance on clear-cut and concise copyright law, the concept of a small claims court for copyright was suggested by the commissioner.

Shain began by stating that The Copyright Act as it currently stands protects a photographer’s intellectual property well.

‘Now, if there’s one issue about copyright that fires up photographers today it’s the very wide, broad proposals from all sorts of people, all over the place, about fair use and different fair use regimes and how good it will be,’ he said.

Shain told ProCounter that following the public hearing on June 27 the AIPP filed another submission, addressing the dangerous link between Fair Use and Orphan Works, a recommendation in hot pursuit by the commission.

Fair Use, which would replace Fair Dealing, would allow copyrighted material of an ‘orphaned work’ – a work which does not appear to have an author – to be used without permission.

The strong argument for this is that school kids, university students or professors, libraries and museums, cannot use books and other resources which have been detached from their authors. If all that can be done fails to identify the author, the resource cannot be used as it could break copyright law.

When applied to photography this could create a ‘free-for-all’ copyright infringement situation. Particularly online, where it’s easy to strip metadata from an image and detach it from the author’s electronic signature. This could be enough to make it clarify as an orphan work.

However, Karen Chester, a commissioner and deputy chair of the inquiry, said that consumers want to find authors!

‘Part of the issue seems to be a lot of people actually want to do the right thing and to remunerate copyright holders, but difficult to identify who the copyright holder of the image is,’ she said, suggesting a fix would be would a low cost stream of litigation.

‘We identified, in our report, an example in the UK where they have the IP Enterprise Court, which is a low cost stream of litigation around intellectual property arrangements.  So in Australia we’ve got the Federal Court, which is quite an expensive option for pursuing litigation, you then also have the Australian Copyright Tribunal, but there’s kind of nothing in between.’

Chester said the UK IP Enterprise Court is a specialist court with hearing running for no longer than two days, running legal costs down. It has a small claims division, which only hears cases worth less than £10,000. This is ideal for photographers – it’s rare for photos used unlawfully to have cost the infringer more than a few thousand dollars. Many times it would be in the hundreds.

ProCounter found two comments from UK photographers complimenting the IP Enterprise Court, which doesn’t require the photographer to hire a lawyer. Some reported that it even existing led to settlements of small infringements.

‘A Small Claims Court would be a fabulous thing to see in Australia,’ Shain said. ‘I think there’d be lots of creators who would be very interested in having that option available.  Because what happens at the moment, from my personal experience, is that if there is an infringement, if it’s some small organisation or an individual or a school, and I’m aware of my personal work being infringed constantly.

‘It is a constant, constant problem, and there’s only so many – well, there’s hardly any that you pursue, but there will be one where you go, “Actually, that’s XYZ large corporation, I really think they shouldn’t be doing that and I’m going to pursue it.”  The smaller things, at the moment, there’s no financial incentive for you to do it, so it doesn’t happen.’

Professional Photographers of America, the US professional photographer trade group, has been campaigning for a small claims court to be introduced there.

It says the House Judiciary Committe is working to create a legislation that will change copyright for photographers, and at its core is the creation of a copyright small claims process.

‘Recently, we’ve received news that a piece of legislation creating a copyright small claims process will be introduced in the House of Representatives,’ PPA said. ‘And we have been working very closely with the drafters of this bill. This is very exciting news and a huge step toward accomplishing our top legislative goal!  But we still have a very long way to go..’

Source: PPA.com

The PPA argues that 70 percent of photographers deal with copyright infringement. But most photographers estimate the infringement is worth less than US$3000, while two-thirds of IP attorneys wouldn’t consider a case worth less than $30,000 in damages.

‘No one is going to go to Federal Court over US$3000. But $3000 is a lot of money to a small business owner,’ it said. ‘On average, professional photographers work over 50 hours per week and earn about $35,000 per year. Several thousand dollars is enough to affect whether or not a small business can keep its doors open – a small business that creates jobs and adds growth and vibrancy to our economy’.

However the Productivity Draft report made no great mention of pushing for a small claims court in Australia.

The commission also distanced itself from the supposed recommendation to reduce the copyright lifespan to 15-20 years, a suggestion which attracted plenty of criticism.

Shain finished speaking by suggesting a step forward would be to educate the public, from a young age, about the importance of intellectual property.

‘We think that’s one of the keys, actually, is to educate the consumer about copyright and the importance of it. Going to the primary school system and having a module about respecting creators rights and artists rights, as a part of your education, and why it’s important for the society,’ he said.

‘I believe that the image making that Australian photographers do, it’s important to the build-up of Australian society.  Forget about anything else, it goes to make the fabric of society work and how we record it is vitally important.  So it’s vitally important that we encourage people to do it and to do it properly.’

The full transcript of the public hearing is over 800 pages. Here’s an isolated version with the introduction and Shain’s input.