Copyright on the agenda

WE ARE "all creators now. I create when I post on my website: you create when you post a note on your Facebook wall, we create when we tweet to each other." That was David Lammy, the government Minister responsible for intellectual property, speaking to a meeting called on 23 March by the Strategic Advisory Board for Intellectual Property on the "moral rights" - the right to be identified as creator of your work and to defend its integrity.

"Any artist puts not just effort but quite a lot of themselves into their work," he went on: "it's clear that the value of that work is largely because of the huge endeavour which that artist has put in and there is a powerful sense that it still remains theirs, their offering to the world, and that is why moral rights are important." Sympathetic words indeed - though Lammy acknowledged that he won't be a Minister for long, unless his party is re-elected.

And one of the questions Lammy posed was: "How do we grant access to libraries - while respecting the emotional tie which creators have to their work?" Half the government's answer to that will - almost certainly - by the time this reaches you be winging its way into law, in the shape of Clause 43 of the Digital Economy Bill, which was due to have its second reading in the House of Commons on 6 April.

The Bill gives future Ministers the power to authorise bodies - such as the collecting societies DACS and ALCS - to issue "extended collective licences": in effect, blanket permissions for a user like a library, or the BBC archive, to use works, in return for a fee. A similar process will apply for authorising bodies to license use of "orphan works" - those whose creators cannot be found.

The promotion of moral rights onto the political agenda and the insertion of "creators" into the political lexicon is a direct result of lobbying carried out by the NUJ with the Creators' Rights Alliance (CRA), and of the amendments we supported while the Bill was going through the Lords.

During that process the government made significant changes to the Bill. For example it now outlines the steps that someone wanting to use an orphan work would have to go through to try to find its creator or creators. It makes it much clearer how creators' organisations and other interested parties are to be consulted, not just on the content of the "statutory instruments" that are to flesh out the organisational machinery but on individual licence applications. It has gone some way to meeting the CRA's demand that only bodies genuinely representative of creators may grant such licences.

The other two key safeguards that the CRA sought - in short, the creator's right "to be identified and to stay identified" - are not in the Bill, nor were they ever likely to be. As Viscount Bridgeman said in the Lords debate, "It is a logical and legal absurdity" to make provision for use of works by unidentified authors and other creators "while there are significant groups of authors who do not have the right to be identified". No-one contributing to a newspaper or magazine or reporting news and current affairs currently has the key rights in UK law.

There was no practical political possibility of stopping the government's move, not without scuppering the entire Bill and damaging the interests of creators - including journalists in the trial areas for "regional news consortia". So the CRA wrote to key MPs saying that no authorisations under the Bill should be granted until the moral rights issue was sorted out.

That was hard work. Now it gets harder, exorcising the devil in the details. See www.creatorsrights.org.uk/?page=ECL for a guide to extended collective licensing and the next political stages.

Meanwhile in another corner of Westminster, the government's Intellectual Property Office is taking a look at creators' contracts. Yet more consultation.

Over in New York, the Google Books Settlement is delayed again. Anyone with words published in a book should visit www.londonfreelance.org/fl/1002goog.html - our online checklist to work out what the settlement means to you. We're waiting to see whether the Authors Guild, publishers and Google come up with a second revised settlement agreement, as Judge Denny Chin hinted they should at the 18 February fairness hearing. The ranks of those objecting has swelled, with Ursula K. Le Guin resigning from the Authors Guild, and exhorting US authors to join the National Writers' Union: See www.ursulakleguin.com/Note-NWU.html)

And in Washington, DC, the Supreme Court has issued its second ruling in Tasini versus Times - the case in which Jonathan Tasini and others sued the newspaper and online databases for putting freelances' work online without a licence. The ruling is that the settlement can include authors who did not register their work with the US Copyright Office - including most freelance claimants. The effect is that the case - launched in 1995 - goes back to the Southern District Court of New York to decide whether the $11 million for writers is fair, or not.

Back in Europe, meanwhile, we await with interest the imminent publication of a draft EU-wide law on authors' rights. The "Wittem group" of law professors is producing this on its own initiative, with no formal mandate and no consultation. It could be influential, given noises coming from parts of the EU's civil service, the Commission.

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