As we have said all along, the Digital Economy Bill S43 is a stalking horse for commercial interests. Government has insisted it benignly seeks to facilitate the cultural health of the nation through liberating museums and galleries from the unreasonable shackles of existing copyright law. But S43 has the fingerprints of publisher lobbyists all over it.
Orphan usage has been left wide open to commercial exploitation, and Extended Collective Licensing can be implemented by any publisher the Secretary of State cares to approve. ECL turns copyright law inside out, placing all the costs and difficulties of preventing use on creators, and allowing publishers who operate licensing societies to assume permission to publish anyone's work on their terms.
There have been clues to these real motives and players. One only had to read the submissions to Gowers to see who wanted what. The IPO has stubbornly opposed creators moral rights at the bidding of commercial publishers, saying there is a "conflict of interests". Of course there is, just as there is a conflict of interests between burglars and householders. We still don't think the state should hand them a crowbar.
Concern among creators about the covert ambitions of the publishing industry is now making serious inroads. Our campaigning, writing to MP's and effective lobbying of key opposition figures has dented industry certainty that they will get what they want. S43 now faces a prospect of being thrown out.
So we are not surprised that a letter has been sent yesterday to all the principal senior politicians of the major parties - Lord Peter Mandelson, David Lammy, Stephen Timms, Jeremy Hunt, Ed Vaizey, Adam Afriyie and Don Foster - pleading for S43 to succeed.
"DIGITAL ECONOMY BILL CLAUSE 43
As you are aware, the draft legislative provisions to enable the licensing of orphan works and extended collective licensing schemes have been the subject of intense debate and detailed amendment during the passage of the Digital Economy Bill through the House of Lords.
As the Bill awaits its Second Reading in the Commons, these provisions remain imperfect. But they are a significant improvement on the original Clause 42. As a satisfactory compromise between diverse interests, they should be considered a success.
A nuanced debate of the strengths and weaknesses of the Clause is now academic. The opportunity has passed for it to be amended further. But there is still a real danger that the Clause could be jettisoned altogether, during the wash-up.
We believe this outcome would be catastrophic for the creative industries. The strategic importance of making orphan works available and, for some industries, enabling extended collective licensing schemes, cannot be overstated. Failure to make orphan works available is likely to result in far cruder alternative solutions, which would run the risk of contravening the Berne 3 step test, and which would have far-reaching and damaging consequences for our sectors.
There will be many opportunities to engage in depth with the consultations and regulations which will be brought forward under Clause 43, and we look forward to doing so.
In the meantime, we would urge you to seek the consensus necessary to ensure that Clause 43 stays in the Bill."
There is nothing new in the content. What is most interesting about this letter is who sent it. It is, notably, not from any of the cultural lobby whose interests Government purports to serve. The British Museum, the V&A and so on are absent from this plea. For the first time we can see who is really driving this legislation, and who intends to profit from it at our expense.
The signatories are :
- The Copyright Licensing Agency
- The British Broadcasting Corporation
- The British Film Institute
- The Publishers Association
- The Association of Learned and Professional Society Publishers
- The Educational Recording Agency
That is :
- 2 companies already heavily involved in commercial collective licensing, CLA and ERA, and doubtless keen to profitably expand
- 2 publisher associations. ALPSP is "the international trade association for not-for-profit publishers". The PA is "the leading trade organisation serving book, journal and electronic publishers in the UK. Our core service is representation and lobbying, around copyright, rights and other matters relevant to our members, who represent roughly 80% of the industry by turnover".
- 1 film association. The BFI is a bona-fide archivist, but is also commercially active, running festivals, IMAX, and publishing material.
- The uniquely schizophrenic £4.6Bn turnover BBC which is both license-payer subsidised and intensely commercially active to the annoyance and disadvantage of its fully commercial competitors.
As can now be seen Government has wandered a long way from assisting the British Library et al, to use orphaned and abandoned work for the public interest - a project we have never opposed.
We are instead facing wholesale changes to our copyright that Government has been persuaded will assist these "creative industries" to make more profit, not from creating more or creating better, but by enabling yet more brute power over the individuals and small companies who actually create the work they all depend upon.
If the BBC and the Publishers Association get extended collective licensing, all their competitors will howl that they must have it too. That will be an end to any kind of market for creativity, and a take-it-or-leave-it imposed serfdom will prevail. Section 43 has to go, and something resembling fair and sensible has to happen instead.
|DEB Clause 43 Letter of 29th March 2010.pdf||130.43 KB|