Enterprise and Regulatory Reform Bill

ERR 42

Submission from the Chair of the Creators’ Rights Alliance

1) The Creators’ Rights Alliance is an affiliation of organisations representing the interests of over 100,000 original creators in a wide range of fields – including music, illustration, journalism, photography and writing. Most of the 100,000 creators we represent make their living by licensing copyright and performers’ rights in their work.

2) We restrict our comments to the proposals in the ERR Bill concerning copyright.

3) The creative industries are a key driver for growth in the economy and a foundation-stone of hopes for economic recovery – the Government recognises this. And the great majority of what the creative industries distribute originates with individuals, like most of those the CRA represents, operating as sole traders or small businesses.

4) Growth can only be sustainable if we individual creators – the bedrock of Britain’s creativity – can sustain ourselves by earning enough to be full-time, dedicated professionals.

5) In the age of the internet, copyright and creators’ rights are not only the special interest of authors, musicians and so on, if the ever were. Everyone can now easily be a published or broadcast author or performer. Every citizen therefore clearly has an essential interest in being able to deal with cases where work that they post to FaceBook or similar websites is be abused, for profit or in a manner prejudicial to their reputation.

6) We share the concerns expressed to your Committee by stakeholders such as UK Music [1] about the way in which these measures have been introduced at a late stage. It was our understanding also that Government would consult further on the proposals in the copyright consultation, once proposals were more advanced. The Foreword to the Copyright Consultation states that "Government’s intention is to respond to this consultation and make formal proposals for legislation or other action in an IP and Growth White Paper in Spring 2012." [2] No such White Paper has been published.

7) We do not want to see a repeat of the legislative mess that was the Digital Economy Bill. It remains the case, now as in late 2009 and early 2010, that the proposed measures are acceptable to creators only if they are accompanied by these essential safeguards for us as the individuals on whom the creative economy is founded. Specifically:

8) Clause 56: Despite the Intellectual Property Office’s covering material, the purpose of inserting this provision into the Copyright, Designs and Patents Act remains obscure. Its obscurity deepened when, responding to a probing amendment to restrict the Minister’s power to alter the exceptions to copyright to those permissible under European law, Norman Lamb spoke of a power "to change exceptions in response to domestic legal judgements on those parts of our law-the non-harmonised parts-that are not subject to control from Brussels" [3] . What are these?

9) Amendment NC11 - reducing duration of copyright by Regulation: We appreciate that anomalies may need to be rectified: but not at the expense of granting the Minister over-broad powers. As the amendment stands, it would permit the Minister to make Regulations extinguishing your copyright in the photographs still in your camera, or the notes still on your pad, because they are unpublished. While we are fairly sure this is not the intention, public and in particular creators’ confidence would be significantly increased if the measure said what is intended: for example to append after the words "or pseudonymous" the words "to a duration not less than 70 years after their creation."

10) Amendment NC13 - orphan works and extended collective licensing: this would provide for Regulations – as yet ill-defined – creating schemes for "extended collective licensing". These would allow mass licensing of works without permission or precise knowledge of who the creators are, for example by libraries and TV archives. Further measures would allow licensing of "orphan works" – those whose creators cannot be located.

11) These provisions are remarkably similar to those for the same purposes introduced into the Digital Economy Bill by the previous government in late 2009. That measure suffered from an attempt at rushed procedure and a consequent loss of trust by large groups of creators. They further suffered – as to Clause 56 and Amendment NC13 to this ERR Bill – from an excessive reliance on Regulations and a reluctance to spell out the necessary safeguards on the face of legislation subject to full Parliamentary scrutiny.

12) We do appreciate the three clarifications compared to the DEB measure as introduced: the specification that bodies shall not issue themselves with licenses to use works without permission of creators; recognition of the need to provide for the case in which a work ceases to qualify as an orphan work; and recognition of the need to ensure identification of authors and performers, even where they are not traced. We observe, however, that the previous government felt the need to amend its own proposal with significant further clarifications on the face of the Bill, before abandoning the proposal.

13) One clarification required to ensure that licensing of orphan works does not distort the market in which works by known creators are licensed is to specify, on the face of the Bill, that licenses for use of orphan works shall attract a fee, payable in advance of use, reflecting the prevailing rate for a licence to use a similar work by a known creator. A step toward this clarification would be to delete the word "any" from the phrase "treatment of any royalties" in the proposed Section 116C(4). [4]

14) Other necessary measures require additional changes alongside those proposed here, without which the current proposals are unacceptable to a great many creators.

15) In general we observe that the British Library argues in support of Extended Collective Licensing that is "has existed in the Nordic countries since the 1960s". [5] This is true: but in those countries it exists against a background of Authors’ Rights legislation – as distinct from copyright. This treats the rights of creators – to be identified as author, to defend the integrity of their work, to authorise its use and to fair remuneration – as in principle inalienable. Under the copyright system, publishers, broadcasters and online service providers frequently force creators to waive these rights, because they can.

16) In particular, creator’s rights to be identified and to defend the integrity of their work are important both to citizens as creators and to citizens as users of creators’ work. As creators, we all need the right to be identified as authors and performers of our actual, un-distorted works. As professional creators, we need this in order to build a career. As users, we need the guarantee they represent that the creator takes responsibility for their work. Most pragmatically, consideration of any measure to permit the use of "orphan" works must not be restricted to the historical record; it must be accompanied by measures to prevent future works being "orphaned", which means guaranteeing that creators are identified and stay identified.

17) As Viscount Bridgeman observed in the DEB debate, in a phrase much quoted since: "It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified." [6]

18) The Creators’ Rights Alliance therefore recommends that at the same time as clarifying the measures proposed in Amendment NC13, additional measures are needed to ensure that:

A) The moral rights shall be unwaivable;

B) The creator may exercise the moral right of identification (CDPA S. 77)  by, at their initiative, proposing that a pseudonym be used; absent such proposal they shall be identified by their real name; and

C) Waivers for "works generally" made under CDPA S. 87(3)a before the coming into force of this section shall cease to have effect for works first made or published after.

D) The exclusion of journalists from the protection of the moral rights should be ended.

E) The requirement that the right of identification be "asserted" should be removed.

July 2012


[1] Memorandum to this Committee: http://www.publications.parliament.uk/pa/cm201213/cmpublic/enterprise/memo/err32.htm accessed 14/07/12

[2] Consultation document at http://www.ipo.gov.uk/consult-2011-copyright.pdf accessed 14/07/12

[3] Commons Hansard Thursday 12 July 2012, col. 631

[4] Amendments as at 10/07/12; at http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0007/amend/pbc0071007m.145-151.html accessed 15/07/13

[5] Memorandum to this Committee: http://www.publications.parliament.uk/pa/cm201213/cmpublic/enterprise/memo/err38.htm accessed 14/07/12

[6] Lords Hansard , 8 February 2010, col. 594

Prepared 18th July 2012