Exceptional confusion

JULY'S London Freelance Branch meeting was treated to a whirlwind update from Mike Holderness on recent changes to copyright law, alongside John Toner's presentation on claiming for breaches (see here). There is an unfortunate amount, and there's been more since.

Mike Holderness gives a whirlwind guide: photo © Hazel Dunlop

Mike Holderness gives a whirlwind guide

Several measures extending "exceptions" to copyright had been passed, dealing with:

  • widened educational use;
  • use by libraries and archives (including so-called "data mining" for non-profit uses);
  • use for government purposes such as quoting; and
  • use for people with disabilities.
Among these, there has been concern that the education measure could reduce the payments that writers receive through ALCS and illustrators and photographers through DACS. (A straw poll showed a significant number at the meeting who hadn't registered, so weren't receiving anything: so do!) There is hope that schools and colleges will go on paying for licences covering uses beyond the exceptions.

Two more sets of exceptions were approved by the House of Commons on the night of the meeting.

  • One of these dealt with extending the ways in which words, images and music can be "quoted" without permission.
  • The other dealt with legitimising so-called "personal copying" - which is a good idea - but with the "fair compensation" demanded by European Union law set to zero - which is a bad idea.

Musicians and the music industry had argued that the "private copying" measure were "ultra vires" - that the mechanism the government was using to introduce them in the form of "Statutory Instruments" without full debate was invalid. Parliament's Joint Committee on Statutory Instruments (JCSI) had issued a deeply sceptical report. The measures were postponed, then reintroduced unchanged: see here for the sorry saga.

The Creators' Rights Alliance, of which the NUJ is a leading member, later made a a last-ditch presentation to the Lords, supporting the argument for compensation for private copying and raising the question: what on earth does it mean to "quote" an image? There was a lively debate in the Lords. Labour peer Lord Stevenson of Balmacara reminded the House that:

"...photographs can be "quoted" for genuine criticism and review but are excluded from the exception to copyright when reporting current events. [Photographers and their organisations] say that this is a tried and tested definition which has worked. Introducing a more general right of quotation, however, introduces ambiguity and uncertainty that will require legal clarification in the courts, costing rights holders legal fees and lost revenue."

The measures were nevertheless passed. The Lords have also passed Statutory Instruments dealing with:

  • so-called "extended collective licensing" - allowing, for example, the British Library to pay one fee to the collecting sociteies for putting certain works online; and
  • licensing of orphan works - those for whom an author cannot be found, after diligent search.

The chances of the House of Commons not passing these in the autumn are vanishingly small. Following dozens of consultation meetings with the Intellectual Property Office, they do contain important safeguards against abuse. Other measures passed earlier this year provide for regulation of collecting societies. This is especially important given that what the measure on extended collective licensing does is to set out in detail how a collecting society could put a proposal to its members for a democratic vote on whether to offer such a licence to, for example, the British Library or the BBC - or not.

On a brighter note, the NUJ and the European Federation of Journalists are arousing serious interest with officials in Westminister, Brussels and Geneva over the issue of the imposition of contracts. We have yet another Minister to deal with in the UK and are of course seeking meetings with her.

Last modified: 26 Aug 2014 - © 2014 contributors
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