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Small progress on copyright, not many killed

THE NUJ continues to press strongly to defend journalists' (and all citizens') rights as authors. The government has made some major concessions in framing its Digital Economy Bill; but it has rejected any immediate action on our biggest concerns.

The Digital Economy Bill would allow Ministers to amend the law to permit so-called "extended collective licensing" of authors' and performers' works, from photographs to dances. This concept has led to a great deal of confusion.

An "extended collective licence" would be very much like the licence that a pub needs to pay for so it can play music to drinkers. Musicians get paid, through their collecting society, but the pub does not have to ask them before it plays each track. The "extended" bit means that work by musicians who are not members of the collecting society in question is also covered by the licence.

One example that would affect journalists is that the BBC wants to use a new law to get a set of extended collective licences under which it would pay a fee for putting its archives of programmes online, but would no longer need to track down and ask every writer, director and performer. (For the avoidance of doubt: photographers are, in law, included in "authors".)

The government's concessions include a commitment that every time an organisation applied to negotiate such a licence, it would have to pay to advertise its proposal to all affected creators.

Such a scheme would mop up almost all the questions about "orphan works" - those whose authors or performers are unknown or unfindable. If the BBC, for example, doesn't need to ask authors or performers about a particular kind of use, such as the online archive, it doesn't matter if it can't find them.

The Creators' Rights Alliance has put an extended briefing on the process the government envisages, with its four further stages of consultation, up at www.creatorsrights.org.uk?page=ECL

Residual orphans

The government proposes a kind of ultra-extended licence as a way of dealing with the residue of orphan works questions. One example would be a tourist office that wants to make and sell a tea-towel printed with an antique watercolour of the town, but can't find the painter or their heirs.

The government has clarified, in a letter to Lords, that they intend to require that such a user would have to pay the market rate for a licence to use that image; so the market would not be undercut by a flood of certified orphans. Revenant authors would get the fee, less handling charges. Argument continues over what would happen to unclaimed fees.

More government changes to the Bill clarify what such a would-be user would have to do to show how they had tried to find the creator; and that there would be registers of works declared orphan, which creators could search to find and claim their work.

The big questions

On the big issues that the NUJ has been pushing, through the Creators' Rights Alliance, the government is intransigent. These concern authors' rights to defend the integrity of our work, to be identified and to stay identified.

At Committee stage of the Digital Economy Bill, we supported Lords' amendments to make the so-called "moral rights", including the right to a byline or credit, available to all. As Viscount Bridgeman said in the debate:

It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified...

The exception to the right to be identified as the author of a journalistic work was introduced to the 1988 Act at the last minute and in the days of hot metal typesetting. Then, publishers perhaps had cause to fear that the slug of metal bearing the photo credit or article by-line would fall on the floor and be kicked under the compositor's stone. Current technology makes identification easy - in fact, in the best-designed cases, it is entirely automatic - and the proposal on orphan works makes it imperative.

Other amendments that we supported would have removed the arcane requirement to "assert" the moral rights, and removed the possibility of "waiving" them, which as all freelances know publishers and broadcasters tend to insist on, merely because they can.

The government's response has been to say that there is no industry consensus on moral rights. A freelance comments: "well, durr". That, from our point of view, is like asking for consensus between pirates and ship-owners before acting to defend ship ownership.

A second, more technical question on which the government is not budging is protecting "metadata" - the information accompanying the "data" that is a piece of your work, including your credit and, for example, a link to your Freelance Directory entry so would-be users can contact you. Protecting that is, the NUJ says, essential to your staying identified.

A third is our request to clarify that the only bodies that can apply to grant such extended licences should be those which genuinely represent creators. The current Bill would allow Ministers to approve the BBC, for example, to be authorised to apply to itself for licences to reproduce orphan works.

We are briefing Lords who are pursing these questions at the Report stage of the Bill, which is now expected to get to "our clause" on Monday 8 March.

  • Alongside the Bill, we face a whole slew of government consultations on other changes to the law, including:
    • "exceptions" to copyright to allow libraries to make archive copies, and schools and universities to pay a licence fee to distribute works to "distance learning" students;
    • arrangements for the British Library and the other deposit libraries to hoover up publicly accessible web pages to build an archive;
    • the future of libraries themselves.
    At the time of writing the union's National Executive is considering our substantial response, to the first of these. The agreed version will appear on www.londonfreelance.org/ar

Digital Economy Bill
House of Lords Report stage 3 March & 8 March

Please be forgiving if these notes being a bit close to the sinews of the Bill, as it were. Plain English description of the implications will take longer.

Lords Third Reading of the Bill is scheduled for Monday 15 March. At this stage only amendments which clarify or improve drafting, or enable the government to fulfill commitments given at earlier stages.

The government made three new commitments at Report stage. They also amplified the line that they may exclude photographers from extended collective licensing of orphan or other works.

1On 3 March Clause 17 - which would have allowed Ministers to make further amendments to the Copyright Design and Patents Act to deal with illegal file-sharing - was voted down.

A new LibDem clause 17, concerning denying users access to sites such as PirateBay, was passed.

Lords say the government's chances of reintroducing their Clause 17 are slim. Civil servants "cannot say" whether it will try on Monday. Clauses 2-16, concering notices to those suspected of illegal uploading, remain.

2Clause 28 (ooo-er!) establishing regional news consortia: the Conservatives in the Commons have described their opposition to this as "a red line" but they did not press a vote at Lords Report stage on 3 March.

3Clause 42, which would permit extended collective licensing of creators' works, including orphan works, was debated at the conclusion of Report Stage on Monday with the following major results:

  1. the government had submitted a slew of amendments which were passed and were described by Lord Young as:

    • to introduce a plain English definition of an orphan work;
    • make the search requirement "diligent";
    • make orphan works registers more easily accessible;
    • make it compulsory for the treatment of royalties to be regulated;
    • specify what topics must be covered in the codes [of conduct];
    • extend regulation to all authorised bodies [those that can issue either orphan or ECL licences]; and
    • make it compulsory for the Secretary of State to consult on the conditions for authorisation of orphan works and extended licensing schemes with those likely to be affected by the establishment of such schemes.
    See Hansard 8 March and following pages.

    The amendments also:

    • make authorised bodies liable for fines if they do not do their work properly and fairly;
    • clarify that in the case that, for example, a work is declared orphan when it is not, the author (incl. photographer) can sue the authorised body (for breach of statutory duty) - rather easier than suing the end user; and
    • specify that the regulations (Statutory Instrument) must set out in law how unclaimed monies are distributed and must regulate handling deductions.
    All these changes make the Bill very significantly less dangerous than it was, to say the least.

  2. Friendly Lords* re-submitted amendments to specify that only bodies representative of creators may be authorised to licence orphan works. The government is adamant that cultural organisations should be able to apply to self-license orphan works (not to grant extended collective licences) though they "may find it more efficient to use licensing bodies, but that is for the market to decide."
  3. (The government commits itself to consider two amendments specifying that (i) ECL authorisation shall go only to bodies representing creators and (ii) any bodies authorised may only do so with the agrement of a majority of rightsholders - it will bring its own version to Lords Third Reading on Monday.
  4. The government rejects the proposal to give Parliament the power to amend regulations under Clause 42 (the wonderful jargon is that they be "subject to super-affirmative procedure" - rather than mere "affirmative" which requires a vote but prevents amendments).
  5. The Conservative front bench brought an amendment demanding that procedures for creators to opt out be clarified. The government is committed to including this in the regulations.
  6. Ditto, demanding that there be a register of works included in extended collective licences that are by creators who are not members of the body granting it - that is, the works to which the licence is "extended". The government repeated its earlier commitment to ensuring that creators' bodies are consulted on the terms of the specific licence. It committed itself in a "factsheet" issued following the previous, Committee, stage, to ensuring that any proposal to set up an ECL is widely advertised.
  7. LibDem Lord Clement-Jones spoke against the whole of Clause 42, inspired by photographers' briefings. The government rejects the claim that 42 would prevent photographers granting exclusive licences to clients. They "recognise the problems caused by metadata being removed from works. This is something we need to take into account when considering whether digital images should be capable of being licensed under orphan works regulations."
  8. Lord Lucas of Internet Service Provider (Con) proposed to make hyperlinks and extracts (including thumbnails) to explain them specifically legal. The government says they already are. Mike Holderness of Headache notes that if thumbnails were illegal, then databases that help photographers track their work would be illegal.
  9. Friendly Lords moved amendments on moral rights and metadata, with very little time left (before the very important matter of a half-hour debate on the late Jamie Bulger). The government is "sympathetic" to the (publisher- and collecting-society-supported) amendment on automatically-generated metadata but (between the lines) is afraid of Google. "In principle, the Government would support changes that helped to tackle unauthorised tampering with metadata."
  10. On the waivability of moral rights and the requirement to assert them, and of the exclusion of journalists from moral rights, the government is committed to looking at these issues, but they are "too complex to resolve with these amendments today."

* Friendly peers were Viscount Bridgeman (Con), with the support of Lord Clement-Jones (LibDem front bench), frequently of Baroness Buscombe (Con) and in many respects of Lord De Mauley (Con front bench).

Digital Economy Bill
House of Lords Third Reading 15 March

Creators' organisations were not happy with the amendment to the Bill that the government presented to fulfil its promise (c above) to ensure that only bodies that are truly representative of creators may be authorised to grant extended collective licenses. Lords presented altetnative amendments. These were not passed, but the governement gave useful further commitments that it "had always intended that extended licensing schemes should be run by representative licensing bodies". It helpfully suggested that a simple majority of creators (and other rightsholders) approving a scheme would not be enough and that a "critical mass of representation" would be required in the Statutory Instrument.

The government remains committed to the possibility of authorising bodies such as the BBC to licence their own use of orphan works.

The government's response to a proposal that codes of practice must specify the obligations on those licensed to use works under extended collective licences appeared confused. More work for those involved in the famous consultations...

Last modified: 21 Mar 2010; posted 4 Mar 2010; - © 2009 contributors
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