Digital Economy Bill - what can we do?

How did we find ourselves in this fix? The Digital Economy Bill is shooting through Parliament in what has been described on the CRA (Creators Rights Alliance) web site as ‘an appallingly rushed process.’

The bill introduces legislation to enable the licensing of orphan works by authorised bodies, and Extended Collective Licensing provision which would give collecting societies the right to license other copyrighted works as well. (See my previous blog)

While amendments have specified that copyright holders will have the right to opt out of these arrangements, the fact remains that control of the use of works will be removed from the rightsholder. The ‘balance’ promoted by the IPO will take rights away from creators in favour of the users of the works (the publishing industry.)

Taken together, these provisions amount to wholesale attack on the right of the creator to decide how his or her works are licensed.

Strange. I remember being involved in the pre-bill consultation last year, and the view from creators’ organisations was that there was nothing wrong with copyright law as such. It was the ability to protect those rights that needed to be improved.

To illustrate what we are up against, here is a quote from Lord Lucas on 8 February during debate in the Lords. "We are coming up against what will prove to be impossible over the next decade or two: maintaining the idea that the copyright owner has control rather than a right to remuneration. I do not see how control stands in the internet age.”

Those of us who are creators or their representatives need to ask ourselves whether we agree with this statement. Do we want to give up control over the way our works are licensed? If there are areas where it is beneficial to creators to look at collective licensing, is the Digital Economy Bill as it stands the best way to take a considered view on how licensing may look in the future?

Lord Clement Jones commented on the same day 'It is one thing to have an extended licensing scheme for a body that already has a particular work that it needs to exploit in different formats over time and another to have a completely new work over which it tries to acquire rights through this process.'

The fear is that organisations which have access to works will try to take control of the licensing without recourse to the creators themselves.

On Feb 8 Lord Clement Jones said ‘We know that there will be a problem in the other place, where Members will not have time to debate the issues. We will have what is traditionally called the wash-up at the other end.’

This means legislation will be rushed through in The Commons in advance of a May 6 election, by people who do not know our industry and have no time to think about the issues involved.

Photographic organisations have been mobilising. The IPO held a meeting last Friday to discuss their major concerns. A report of this meeting ‘IPO meeting stalemate’ can be found on Copyrightaction.com, run by EPUK (Editorial Photographers UK) along with their position statement on the bill.

BAPLA has issued a statement which calls for orphan works to be released for non-commercial use only, and for safeguards on moral rights and metadata.

Rights organisations are asking, at the very least, for enforceable moral rights, attribution of works, and protection of metadata. These things are strongly opposed by what the IPO calls other stakeholders - publishers in other words.

The Periodical Publishers Association (the PPA) issued a statement in September last year opposing any change in the law on moral rights. At present moral rights, which include the right to accreditation, have to be 'asserted'. Creators organisations are calling for a default position with automatic moral rights.

The photographic industry is reacting to a bill which drives a cart and horses through the rights of creators in order (it would appear) to appease the publishing industry. Despite recent promises of consultation for the setting up of the orphan works and extended licensing schemes, the process appears to be profoundly opaque and undemocratic.

The Collective Licensing provision is vague. What kind of licensing will be enabled under this provision? Who will decide? Many more questions need to be asked and answered before it is safe to give the go ahead to any such schemes.

With the bill brewing dangerously before Christmas, it was surprising how little reaction was to be found online. In an interview with BJP the AOP tried to reassure photographers that 'We have the ear of the IPO', and statements from other organisations were also vague. Lobbying was going on.

Now things have reached a critical point. The AOP said recently in the BJP ‘We feel everyone should be aware that should the bill pass in its current form any creative work, including photography, is potentially open to political, social, religious or commercial gain by anyone; if the creator of that work cannot be easily identified and traced.' (BJP-online) The AOP views on the best way forward are set out here.

DACs is the collecting society positioned to license photographic works in an Extended Licensing Scheme. Such are the fears, that DACs (BJP online 5 March) has moved to reassure creators that it is not in the business of licensing in rightsholders' primary markets. Creators may well feel that any such reassurances are flimsy in the face of the powers being dished out by the bill in its current form. Perhaps the AOP, which is represented on the board of DACs, can throw more light on this matter.

An election will be called very soon. Even the helpful amendments proposed may not make it onto the statute book. The thought that our industry may be the victim of a ‘wash-up’ should stir us to action.

What can we do?

1) Stay up to date with developments by visiting these sites

AOP
BAPLA
Copyrightaction.com
Creators Rights Alliance

2) Contact your MP before it's too late!