Copyright: make your voice heard
THE UK government is, as reported earlier, consulting on plans to change copyright law. Your deadline for individual submissions is Wednesday 21 March. We encourage you to write, if only to make a few basic points, not least because of the suspicion that a plain count of submissions is influential.
The consultation document (available here contains 114 questions. and officials are asking for answers to these individually, more than essays. If you're writing a simple letter, the advice is to say which numbered questions your points refer.
Your union has been meeting officials conducting different parts of the consultation several times a week, and met with the Minister responsible this week. There are already some encouraging signs.
You may well want to copy your response to your Member of Parliament and to the Freelance.
Educational copying: One feature that has caused a lot of anxiety is officials' question: what would happen if the government extended the "exception" to copyright allowing copying in educational institutions to be as wide as conceivable allowable under UK law? The answer would be that those who write books used in schools and colleges would lose out on significant annual payments from the licence fees that educational institutions currently pay.
In meetings, officials have stressed (we paraphrase): "we wuz only asking". Government instructed them to consider the effects of making all the "exceptions" to copyright as wide as possible. So they asked. Nevertheless, it'd be worth sending in a submission saying that the answer to Question 89 is "no". There will, almost certainly, be proposals to allow schools to copy materials onto "whiteboards" and inside password-protected "online learning environments": so the answer to Questions 85 to 88 is "so long as all this is covered by a licensing scheme to compensate authors".
Private copying: it is indeed daft that it is currently illegal in the UK for people to copy music or indeed e-magazines onto different devices. The part of the proposal that is wrong in principle and, probably, in Eropean Union law is that the "fair compensation" to authors demanded by Eurpean Union law could set to zero. (Photographers are "authors" for this purpose.) Unsurprisingly, the consultation document doesn't explicitly ask about this: Questions 69 and 70 are closest. Any "private copying exception" should apply only to legitimately-obtained works (Question 67).
"Extended collective licensing": ECL would allow organisations such as the BBC and the British Library to write one cheque to each collecting society for permission to use, for example, works in its archive - without inquiring who held rights in them.
The NUJ position is that IF such a scheme is introduced, very strong safeguards are required. Our colleagues in the Nordic countries are happy with their ECL schemes - BUT these work against the background of strong "Authors' Rights" protection. Authors' Rights are rights of the individual, whereas copyright is a purely property right - as you discover when a publisher or broadcaster demands that you "assign" authorship to them, which is impossible in the Nordic countries, France, Germany and almost all non-English-speaking countries.
The proposal is definitely unacceptable unless:
- Automatic, enforceable and unwaivable rights to be identified and to defend the integrity of works (the so-called "moral rights") are brought in for all creators in the UK at the same time, including an enforceable prohibition on removing the "metadata" that encodes identification in digital documents (answer applies to Questions 1 and 29);
- Only collecting societies democratically controlled by creators in the field may issue such licences (Question 11), and the process for deciding which are representative should be common-sense, and adapted to each kind of creative work (Question 30);
- Said collecting societiesí handling of applications for such licences shall be subject to government regulation (expand in Question 32);
- As a matter of principle, unclaimed monies should be applied to the benefit of authors as a whole. The money is, after all, held in trust for unknown authors. For example for training and education. We wouldn't be suprised if authors in the future decided that a part of it go (back) to libraries; archiving is after all a benefit to authors as a whole (Question 43);
- We welcome officials' clarification that if ECL is to happen, a collecting society should need a vote of its members to approve any particular scheme - we expect that there is no possibility of authors approving anything except libraries (Question 31);
- There must be a clear, simple opportunity to "opt out" of such a scheme, and this implied a public register of which author or what works are opted out (Questions 38 & 39).
Orphan works: The proposal that collecting societies should be able to apply to the government for authorisation to issue licences to use works whose creators cannot be identified, or cannot be located, has aroused passions. If the ECL idea (above) were implemented, there probably wouldn't be much demand for this - perhaps for local museums to sell tea-towels with historic illustrations, or for documentary film-makers to include archive clips.
All the same principles as for ECL apply, as above. Also, IF there is to be such a scheme:
- Licences must be paid for in advance (Question 18);
- The fee for such a licence must reflect the market rate (Question 16) - that is, in our case, the Fees Guide) (Question 17);
- When it comes to defining a "diligent search" to locate an author, the "Memorandum of Understanding drawn up under the tutelage of the European Commission is a good start (Question 12) and there are no circumstances in which a search can be dispensed with (Question 14);
- Where an author (or performer) is known but not found, all uses, without exception, must have a proper credit or attribution and uses of those whose author is not known must say so, to encourage autors to come forward (Question 19);
Other "exceptions": as noted, the government instructed officials to look into "maxing out" the exceptions to copyright. Some of the results may well be bureaucratic jokes.
The exceptions allowing us, as journalists, to quote written works, with a credit, for the purposes of reporting news and current affairs, or for criticism and review, work well. If they are to be clarified, the new law must be absolutely clear what is allowed and not use vague phrases such as "such as criticism and review" - which would make lawyers very happy as people were forced to spend thousands in court finding out what the vagueness meant, and everyone else miserable (Questions 94 and 95).
There is a proposal to make it legal to use a work for "parody" without asking or payment. This risks producing a parody of legislation - are we going to have an law defining what is "funny"? Anyway, most of the cases brought up by those who argue for this concern trademarks, such as those of McDonalds™, not copyright. (Questions 78 to 84).
More will probably appear here quite soon...