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Originally 09/12/17; updated 17/12/17

Respond to licensing consultation

THE UK government has published a consultation on an application by the Copyright Licensing Agency (CLA) to operate an Extended Collective Licensing (ECL) scheme.

So what's that then?

"Collective licensing" is what happens when, for example, the CLA collects money from university libraries to compensate for the loss of sales of books due to their copying; the CLA distributes a fair share of this money to ALCS and DACS; and these distribute a share to you as a writer or an image-maker respectively, so long as you've registered with them (see the links).

"Extended collective licensing" is the same, but the licence that the CLA grants to the library would be explicitly and legally extended to cover works by creators who are not members of the collecting society. The application to grant such a scheme cannot be granted unless the collecting society demonstrates that it has a sound plan for tracking down and paying such creators.

See here for a longer description of ECL.

Update 17/12/17

The application covers 17 licences that the CLA currently grants, for example to educational establishments and businesses. It states that:

at the very outset, CLA established what was in effect a non-statutory extended collective licensing scheme, including within its licences the works of both members and non-members, but which also established an opt-out regime respecting the rights of copyright owners to choose whether or not to participate in the scheme.

...there have been remarkably few complaints from right holders, none of which has resulted in a legal claim in a UK Court.

It thus seems to frame what the CLA is doing in applying for ECL as seeking to make its existing practices legally watertight.

Earlier consultations

The response rates from writers and visual creators to the consultations carried out by ALCS and DACS respectively were perhaps disappointing. The application reports that "2004 respondents completed the survey DACS undertook in July 2017, 18.6% of those contacted. Of those that responded, 97% consented to CLA's proposed ECL application and 3% did not consent" and "ALCS polled around 44,000 members, being the authors of Licensed Works. Of those that responded, 2007 (99%) consented to the proposed ECL application and 16 did not consent."

The new collecting society PICSEL, set up by the British Association of Picture Libraries and Agencies, and, it seems, representing mostly agencies, reports that "members were polled in July 2017. Of the 70% that responded, 100% approved the application." Its annual return to Companies House, which could say how many members it had gained in its first year of activity, was due on 15 December and is doubtless wending its way through the database.

It seems that the CLA holds that these consultations constituted the publicity required in the law setting out the process of applying for ECL. The consultation asks whether you agree; and whether the measures for publicising the application to non-members are adequate. These consist largely of writing to collecting societies abroad; writing to concerned bodies including the NUJ; and the CLA's member collecting societies putting announcements on their websites.

It seems on first reading that the CLA considers this an adequate effort at tracking down non-members who may be owed money. The obligation in law is to demonstrate "the methods by which the relevant licensing body will contact non-member right holders and distribute the net licence fees to them".

Probably the main question: opting out

It is a key provision of the law on ECL that any writer or image-maker may opt out all their work or any specified work. The CLA offers the option of simply emailing to do so. Is this sufficient? (There is necessarily a delay before an opt-out takes effect. Any works already opted-out of CLA's licences will remain excluded.)

More thoughts may follow...