Publishers and writers combine to oppose Hargreaves’ findings
- The basic premise of the Consultation Document following the Hargreaves Review that the proposed changes would lead to economic growth is flawed; instead the reverse is more likely to happen.
- The evidence base in the Consultation Document is inadequate and does not support the case for the changes advocated.
- Many of the proposals are potentially illegal under EU and international law. The lack of any mechanism to enable “fair compensation” to be paid makes it difficult for the UK to apply many of the exceptions allowed by the EU Copyright Directive.
- The approach of providing exceptions only as a ‘safety net’ where no licensing scheme exist should be supported and extended.
- Voluntary licensing, including in particular collective licensing, represents the best solution, both from an economic and legal perspective. In this Submission CLA supports constructive proposals or suggests practical alternatives to deal with problems wherever possible.
The Publishers Association warns of damaging changes to copyright caw
The Publishers Association (PA) on 21 March 2012 reaffirmed its support for incremental changes in copyright law, but warned that radical proposals to restrict or remove licensing opportunities would harm the creative industries and the wider British economy.
Responding to the Intellectual Property Office’s Consultation on Copyright, closing today, the PA supports a raft of changes to improve copyright law, including on orphan works, digital preservation of archives and distance learning.
However, it argues that the proposals to close down licensing in areas like content mining, photocopying in schools and private copying would cut across the operation of the market, depriving authors and publishers of revenues and growth opportunity, and would not deliver benefits for users.
The PA contends that the Consultation on Copyright is based on skewed analysis of the Hargreaves Review, which failed to account for the potential impact on the significant economic and cultural contributions made by the creative industries. The PA argues that further research and economic assessment into the impact of the proposals is absolutely necessary before they are taken any further forward.
Richard Mollet, Chief Executive of The Publishers Association commented:
“The Publishers Association has a number of concerns with the approach being taken towards reform of copyright laws, which seems to disregard the valuable contribution made by the creative and knowledge industries to the British economy.
“Many of the proposals for change are highly questionable, based on little or no evidence. It is vital that at this early stage in the consultation the government makes a more balanced assessment of the impact on successful companies. Writers and publishers depend upon robust and flexible copyright in order to earn from their activity and deliver growth.
“In parallel to this consultation, The Publishers Association firmly supports the proposal for the creation of a Digital Copyright Exchange, which will add transparency and ease to the way that rights information is gathered and exchanged, and will improve our copyright framework. The DCE could solve many of the problems with digital licensing. It is a more nuanced instrument than the radical erosion of copyright which is currently subject to consultation. And by working with the grain of the commercial reality of the market it will contribute to economic growth.”
Read The PA’s submission here.
Driving growth – or just cutting costs at creators’ expense?
Basic contradiction in Government policy highlighted by PPA
The Government aim is to achieve strong, sustainable growth that is more evenly shared across the country and between industries. There is concern about a policy shift in terms of the recommendations for widening exceptions and limitations to copyright. In looking to “expand copyright exceptions to permit greater use and reuse of creative works without permission of copyright owners, where this has social and/or economic benefit” the Government appears to be treating copyright a “cost”, rather than vital property which helps to support the creativity and innovation in businesses, for which UK companies are world leaders.
There is a contradiction in government policy trying to use the expansion of copyright exceptions as a driver for growth. This is not realistic if the result is really aimed at removing copyright owners from the negotiating table with “new” business as much as possible.
The above contradiction is all the more important for PPA and its members as the threats from unauthorised online use of PPA members’ publications and online services increasingly challenges their ability to invest in new and developing markets.
Despite these concerns, some proposals are welcome.
- Digital Copyright Exchange PPA responded positively to recent Digital Copyright Exchange feasibility study: Call for Evidence
- Codes of Conduct for Collective Management Organisations PPA agrees that it is helpful to promote voluntary Codes of Conduct so that the work of collecting societies (or Collective Management Organisations such as the Copyright Licensing Agency and Newspaper Licensing Agency) is better understood and their licensing policies are transparent. PPA members want their own licensing to continue to link with collective licensing when economies of scale or business practicalities dictate the sense of this. The work of the British Copyright Council in publishing “Principles of Good Practice for Collective Management Organisations is helpful and welcome.
- Orphan works. Sorting out a structure for licensing “orphan works” when rights owners cannot be identified after a diligent search process is helpful, provided that this is not shorthand for giving public bodies a competitive advantage over publishers who hold archives of their own and face archive clearance difficulties.
- Copyright Exceptions - PPA believes that some Options posed by the Consultation will reduce growth, increase complexity and reduce the competitive role of the UK magazine sector. These proposals must be dropped by Government and new approaches defined. “Exceptions and limitations” to rights cannot be “drivers for growth” for the businesses that own the rights. They are exceptions. Some arguments have been made about the difficulties that new businesses face in securing consents from others to use the property of others. However, there is a big difference between extending exceptions to “remove” from the negotiating table rights owners who wish to argue for a price for use that a new business wishes to avoid – and working to improve the systems by which licences for use (particularly secondary uses) are made available by rights owners. The latter is fine, the former is not.
- “Protecting” exceptions from override by contract. The proposal the “protect” copyright exceptions from override by contract is damaging in assuming that scope for application of a specific copyright exception is “fixed” across a range of uses. The Option for action should be rejected in favour of retaining current rules (Option 0 – do nothing should apply). The alternative would increase costs, challenge laws of privity of contract, increase uncertainty for rights owners and users and conflict with the importance of judicial assessment of fairness in specific circumstances. If someone only wishes to use copyright works within the scope of an exception, no contract is needed. Licences provide comfort for what has been agreed for the user. It can remove uncertainty and avoid disputes and litigation over what or is not permitted. Exceptions are not “absolute” and many need interpretation against the circumstances of individual cases. (E.g. what amounts to “fair dealing”?).
- Private Copying – Attempts to “future proof” provision for private copying by suggesting that prices paid today should cover uses with technologies or devices to be invented tomorrow, will fundamentally challenge opportunities for future economic growth of creative industries.
- Research and private study – In the digital world, non-commercial researchers and individuals undertaking private study will “use” films and sound recordings in the same way. Fair compensation for private copying remains relevant.
- Text and Data mining – No new exception should be applied. PPA does not accept that a general text mining exception can be introduced which (for practical reasons) will inevitably go beyond the accepted bounds of “fair dealing” with literary works. In any event publishers already work with users to license the use of works or make them accessible for different types and scale of text mining, but on terms that respect the legitimate interest of rights owners.
- Parody, caricature and pastiche – Rights to authorise adaptations of original works must be respected.
- Use of works for education – Many PPA members mandate collective management of rights to the Publishers Licensing Society (PLS) and through the PLS to the Copyright Licensing Agency (CLA). The PPA endorses the concerns set out in the CLA’s response to the Consultation. In particular the proposals to restrict or remove the licensing structure currently in place under s 36 of the UK Copyright Act appear to promote complexity, whilst operating beyond the permitted scope for exceptions and limitations, set by the Three Step Test
- Copyright Notices – The IPO should continue to assist in providing information on issues of fact in regard to copyright law but not in general with question of interpretation.
The PPA’s full submission will be published on the PPA website