The Instagram Act - wespokelaw

Legislation responds to technology

In the UK, the recently enacted Enterprise and Regulatory Reform Act, Instagram Act as it is referred to, has controversially dealt with images posted online on social media and photo sharing websites such as Instagram. Such developments will likely impact on other common law jursidictions such as Australia.

The orphans

A key issue is ‘orphan works’ and the fact that photos on Instagram who do not have a traceable owner, can now potentially be published and used by anyone for commercial exploitation. Images are easily ‘orphaned’ if the copyright owner is not credited at every stage in the path it takes. The path taken by the photo makes it difficult for the owner to be found, especially if the path takes dozens of twists and turns, making it easy to gain licence for use due to its orphaned nature. Almost all users will be ‘orphans’ as they are normal people posting everyday photos. Obviously, some will be companies and businesses which will make it far easy to trace but not for the overwhelming majority of photos posted online.

Easy to exploit

The photos that fall into the ‘orphan’ category will come under ‘extended collective licensing schemes’. This potentially gives the power to anyone else to exploit the photo (without permission or payment) as long as that company/person/business etc. has undertaken ‘diligent search’ to find the owner of the unidentified work. Where a diligent search is taken and no owner is found the photo can be used with seemingly no consequences. What will constitute a ‘diligent search’ in the UK will be a question of fact and may ultimately have to be determined by the courts or otherwise with the aid of a legitimate copyright strategy.

The arm-wrestle

Over time, the online world has wrestled between competing interests of publishers and artists. What is clear is that the Instagram Act now shifts the balance of power away from artists and photographers and closer towards the publishers’ camp. Whilst this shift appears to be the legislature’s attempt to move with the trend of Instagram (and the like), it unfortunately may start to discourage the creative juices of online artists and photographers.

Social media policies in the spotlight