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Some fairly frequently asked questions on copyright law

This Fairly Frequently Asked Questions list has been prepared by the NUJ's Freelance Industrial Council following claims made by others about the effects of a recent Act of Parliament.

Did copyright law change last month?

NO. Changes to copyright law are now in the pipeline, but have not yet happened. There is no "licence to infringe copyright" and creators and users should stick to the current law and best practice for licensing and using copyright material.

So what did happen last month?

THE Enterprise and Regulatory Reform Act (ERRA) received Royal Assent on 25 April, but the law of copyright has not changed. The Act allows the Minister to make "regulations" that will, later, actually change the law on copyright.

How will the law be changed?

THE ERR Act provides for several major changes to copyright law including licensing of "orphan works"; and "extended collective licensing".

Another major relevant change concerns the regulation of collecting societies to ensure that they are fair and transparent when distributing money to creators, including journalists. This is welcome.

What are orphan works? How will they be able to be used?

NO-ONE will will be able to use orphan works without permission or payment. The proposal on "orphan works licences" is that a government body (and, maybe, authorised collecting societies) should be able to issue licenses to use "orphan" works, under strict conditions. Some of the most important of these safeguards are:

  • Anyone applying for such a licence will have to demonstrate that they have done a "diligent search" for all the authors (and performers) of the work. This will be much more than a simple internet search, and it will be more than simply checking the metadata of electronic files.
  • If they demonstrate that they have properly tried to find the authors, and failed, they will have to pay a fee, as close as possible to the market rate for the work to the licensing body. For journalists, the Freelance Fees Guide will be essential in setting this.

The licences will specify what they can do and for how long. The NUJ continues to press for the Regulations to say that the licences must be non-transferable.

Once the law is changed, if someone uses my work without permission, can they just claim they thought it was an "orphan"?

NO, definitely not. In that situation, one of two things must have happened:

  • Either they have gone through the extensive rigmarole of getting an orphan works licence; in which case they will have paid a fee based on the market rate to the licensing body. If so, and it's within a period of around five or six years, then you can claim that fee back - but you cannot revoke the licence, or claim a higher fee.
  • Or they don't have an orphan works licence - which will mean that they have "flagrantly" breached your copyright and you can go to Small Claims Court - just as you can now - except that in the future you will have a stronger case to claim damages beyond the market value of the work.
  • If you feel an "orphan works" licence has been issued when it should not have been, then you will have a case against the body that issued it - which has more to lose than does the person who got the licence.

Once the law changes, can someone use my work without payment?

NO. In fact, as explained above, your position if you find them doing so should be somewhat stronger than it is now.

Does "extended collective licensing" mean publishers or broadcasters can use my work without asking?

NO. (In theory, you could try to persuade your fellow writers or photographers that work should be available under an extended collective licence to publishers and broadcasters. If anyone tries to do this, we expect you will oppose them, and the NUJ will oppose them, and we will stop them.)

So what is "extended collective licensing" then?

"Extended collective licensing" will be a scheme that may allow the British Library, for example, to pay one cheque to the Authors' Licensing and Collecting Society and another to the Design and Artists Copyright society in respect of fees for putting words and pictures, respectively, from their archive online.

The collecting society will then distribute the money to you, in the same way as it does for photocopying, based on a sample of the works covered. It will also distribute money to people who do not belong to it: that is the "extended" bit.

But this will be able to happen only if:

  • a collecting society shows it is representative of authors in the field; and
  • the authors represented by a collecting society democratically approve it making an application to issue a specific kind of extended collective licence, for example one for libraries only or one for the BBC archive only; and
  • the Minister consults further on the application, and the consultation is widely publicised, and after weighing all the responses the Minister approves it.

So there is no chance of a publisher or broadcaster, for example, getting an extended collective licence for any kind of "primary" publication of your work.

To repeat: whether anyone gets a licence for the "secondary" use of making available archives of already-published work is up to the members of the relevant collecting societies. The NUJ believes that, as a side-effect of all this, some of these will have to get more democratic if their management wants to apply.

So what if the other photographers, or writers, go mad and vote to give nice Mr Murdoch an extended licence...?

Whatever happens, you will be able to "opt out" of any extended collective licence that is granted. If you opt out, your work is not covered by the licence, and anyone who wants, for example, to make an archive programme available will have to ask you for an individual licence - just as they have to now.

The NUJ has helped extract multiple promises from the Minister that it will be easy to opt out all your works, or a selection of your works.

So should I take my work off the internet?

As a creator you do not need to remove all your work from the internet; but you should continue to take good precautions.

Try to ensure that all your work is credited. Try to ensure that all your images that go online have a watermark with "© your.name" (and, for good measure, the year) in the body of the image, not just adjacent on the webpage.

As backup, make sure the "metadata" is filled in, at least in all your future images, with your name as "author" of the image and some means of contacting you, for example the address of your Freelance Directory entry thus: www.freelancedirectory.org/?name=Firstname.Lastname

When is copyright law likely to change ?

NOT before late 2014.

What does the NUJ think about the Act?

THE NUJ would have preferred to see much more clarity in the Bill text that was debated in Parliament, and less left to the Minister and to the continuing process of lobbying about the detail of the Regulations he makes.

What is the NUJ doing about this?

THE NUJ, in co-operation with other organisations in the Creators' Rights Alliance, worked hard to remind Parliament, particularly the House of Lords, of the importance of fair payment for creators - not least to ensure that journalists can make a professional, independent living and thus hold government to account.

Our checklist of commitments extracted from the Minister about safeguards for creators in the eventual changes to the law runs to six pages of small print. NUJ Copyright Committee Chair Mike Holderness says: "Boring? Boring - in the sense of posing the least possible threat to journalists' living - is the way we like it."

It was encouraging to hear the Minister, arguing against a proposal originating from the British Library that there should not always be a fee for an orphan works licence, borrowing phrases from arguments we have put over the past decade about how vital it is not to undermine the economics of commissioning new photos and texts.

The NUJ continues to play an active and effective part in consultations on the eventual shape of the Regulations, including guidelines on diligent search, setting market rates, and opting out of extended collective licensing.

So you're saying everything is fine?

FAR from it.

The next - and far bigger - challenge is the government's overdue announcement of the details of its plans to expand the "exceptions" to copyright. These are the rules setting out when someone can use your work without asking, or paying. There are many areas of concern: we'll pick three.

  • Government policy on the future of exceptions allowing quotation is unclear. Journalists absolutely need the right we currently have to quote other people's work without asking, not least to be able to report things they'd rather we didn't. But we're suspicious that powerful internet companies will try to get the new wording vague enough to allow them to do what they damn well please with our work.
  • Journalists who write books could suffer if the government messes up the rules allowing "educational institutions" to use material. This is the same government that wants educational institutions to be run for profit...
  • It is absurd that private copying is currently illegal: European law demands that when it is made legal, creators receive "fair compensation" for lost sales. The current proposal to set this compensation at zero is probably illegal.

The NUJ continues to work to get the government to see sense. In the case of the exceptions we have a common interest with the powerful publishers and broadcasters. If the government tries to press ahead with its sillier ideas, we expect it to fall into deep trouble.

The NUJ also continues to lobby for stronger moral rights including the right to attribution (bylines and credits) where your work is used. Moral Rights have great importance in the digital age for evaluating information. Freelances as small businesses need credits to further their reputation and get more work, and by denying better MR the Government is acting against the development of such small businesses. And we continue to lobby for fair contracts, so that you cannot be forced to sign away all rights.

And, yes, the NUJ has briefed members of the House of Lords on the Intellectual Property Bill 2013. This does not, yet, contain anything of direct significance to journalists, except those of you who also produce industrial designs or patents.

24 June 2013

On 11 June the Intellectual Property Office published a factsheet on orphan works and extended collective licensing. See the link below.

In some ways it appears to go beyond the above NUJ Frequently Asked Questions. We are analysing it.

Last modified: 24 May 2013 - © 2013 contributors
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