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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1091-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CULTURE, MEDIA AND SPORT committee
NEW MEDIA AND THE CREATIVE INDUSTRIES
Tuesday 16 May 2006
MR CHRISTIAN AHLERT, MS JILL JOHNSTONE MR DAVID STOPPS and MS EMMA PIKE MS LAVINIA CAREY, MR DAVID FERGUSON MR DOMINIC McGONIGAL and MS JOANNA CAVE Evidence heard in Public Questions 59 - 117
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Culture, Media and Sport Committee on Tuesday 16 May 2006 Members present Mr John Whittingdale, in the Chair Janet Anderson Philip Davies Mr Mike Hall Rosemary McKenna Adam Price Mr Adrian Sanders Helen Southworth ________________ Memoranda submitted by British Music Rights, Music Managers Forum and the National Consumer Council
Examination of Witnesses
Witnesses: Mr Christian Ahlert, Public Project Lead, Creative Commons, Ms Jill Johnstone, Director of Policy, National Consumer Council, Mr David Stopps, Head of Copyright & Contracts, Music Managers Forum and Ms Emma Pike, Chief Executive, British Music Rights, gave evidence. Chairman: Good morning, everybody. This is the second session of our inquiry into new media and the creative industries. I suspect that in both our sessions this morning we will be concentrating on copyright issues, although not exclusively. Can I welcome to the first part, Christian Ahlert of the Creative Commons, Jill Johnstone of the National Consumer Council, David Stopps of the Music Managers Forum and Emma Pike of the British Music Rights. I am going to ask Philip Davies to commence proceedings. Q59 Philip Davies: Copyright laws were founded on two principles: one being the need for private rights allowing creators and investors to earn a proper return; and the other being the need for material to go into the public domain once that return had been earned. Jill, I think the National Consumer Council suggested that that regime was designed for the analogue world and it was unfit for the challenges for the digital world. I wonder if you could perhaps explain why you think that and whether everyone else agrees with you or not? Ms Johnstone: I think the principles behind copyright legislation, ensuring a fair return to make sure society benefits from creative inventions, is as important today as it was at the beginning of copyright law. I think where the lack of balance has come in is that the private rights part of the public/private bargain has been extended and extended over time to the extent now that we have an over-protection of rights to the detriment of consumers in the public interest. Q60 Philip Davies: Christian, would you agree? Mr Ahlert: Yes, I agree with Jill's point but I would like to add something which I think you as a committee should consider, because you make that basic equation in between that creativity depends in some sense on copyright. I have been an academic in this field for quite a while at Oxford and have looked at many different studies, but there is not a good study that shows that there is a clear link in between the amount of creativity you have in a society and copyright per se. What I think is interesting, and I also think what is not researched very well at the moment, is the clear economic question of the way the current copyright machine works. Mr Stopps: Obviously copyright is immensely important to the people we represent; we represent performers and creators, the featured artists, the artists you hear on the radio and see on the television who are responsible for 95% of the income in the music industry. We need to encourage creators and performers. Britain has had a fantastic history of producing amazing talent either writers, actors, musicians, creators or performers. We have a fantastic heritage of that. We should be encouraging that. We should be encouraging creators and performers and rewarding them properly for their endeavours; it is an enormous asset to this society. I am very much in favour of protection of sound recordings. I think it is far too short at 50 years. When that came in, in the 1911 Copyright Act, I think the life expectancy at that time was 50 years and now I think the life expectancy is 78 years. It really does need extending to protect performers in that situation, and record companies for that matter. Ms Pike: On the whole question of whether copyright is fit for the purpose of the digital environment, for me the purpose of copyright is to incentivise creativity, but not in the sense that Christian was saying that there is not much of a link between how creative a country is and what the copyright laws are. Philip Pullman put it very well in a speech not so long ago when he said that copyright does not necessarily incentivise creativity. Creative people are going to be creative whether there are copyright laws or not. All that copyright law really does is provide a means by which people can actually earn a living from their creativity. By earning a living they actually have the time, the space and the freedom to go on creating. If you do not have those copyright laws in place then what you have is a country of very creative people but who are creative in a very amateurish way because they are having to do their creative work in their spare time as well as doing a day job. For me, that is what copyright is all about; a digital world does not change that one iota. There are areas where I think copyright law needs to adapt to respond to the challenges of the digital environment, but I do not think that we should be undermining it as a concept per se. Q61 Philip Davies: I think you said you felt that the restrictions were in place to the detriment of the consumer. Do you have any examples of anything in mind? Ms Johnstone: What we would like to see is, in a sense, an outbreak of evidence-based policymaking. What has happened over the years is that the term of copyright has increased and increased and increased, and in some cases the scope of what is covered by copyright has increased so that the balance is no longer there between the public interest and getting works into the public domain as quickly as possible and has suffered, and the monopoly rights of rights holders' have increased. We would like to see a much better evidence base for deciding what the term of copyright should be. The disbenefits to society and consumers are in terms of price and choice of goods available. Works may not be exploited so they never come into the public domain at all at any price; and prices will be higher than they otherwise would be without monopoly rights. That is the cost to consumers and society of overextending copyright. Going back to the digital world and the issue you raised about digital, the technology has, in a sense, made things possible which were not possible before; so exploring the technology has left consumers in a bit of a legal vacuum. Things that were previously tacitly accepted as fair use are now things which they are either finding restrained through Digital Rights Management tools, or they are facing prosecutions for doing things which might have been accepted before. What we want to see are some fair rules for the game and some much clearer consumer rights set out in the copyright legislation than we currently have. Mr Ahlert: I want to add something which I think is very interesting in this context. There is legislation being discussed in the French parliament at the moment, which is also a Member State, so it might be of interest. In France they are discussing whether or not Digital Rights Management actually restricts consumer choice, and in some regards it does. In a digital and a converging digital world you cannot look at copyright as completely separate from Digital Rights Management. I think they have reached a point in the whole discussion where you can see basically (through a software code, through implementation in the hardware of MP3 players, laptops and DVDs) there are restrictions placed on what consumers can do with the content they purchase which go far beyond what copyright law always allowed consumers to do. For example, in a non-digital environment you could always make a copy of a record you had purchased. That can effectively be reversed or you are locked into one particular device - and this is where Apple has heavily complained in France. I think that is a hugely important issue to look at - how Digital Rights Management actually over-protects certain industries and limits consumer choice. Q62 Philip Davies: I was just wondering what your view was of where the balance was between the consumer and the creative regime? Ms Pike: Actually copyright law does serve the interests of consumers, by promoting and incentivising the production of creative goods in the first place. Obviously there is a balance to be struck between the interests of the creative community and consumers, and that is why copyright does come to an end after a certain period of time. What that period of time should actually be is a question for Government. I agree with Jill's call for evidence-based policymaking, and that is precisely what is happening at the moment with the Treasury having commissioned a consultation and, I believe, also a study to look at whether an extension of the term of copyright on sound recordings would benefit or not benefit the interests of Britain's creative economy. Mr Stopps: Basically, if you are talking about the public domain, if you take sound recordings, for example, if they come out of copyright and into the public domain after 50 years what happens? The record company keep selling the album, usually for the same price; the record company own the artwork, because the artwork has a life of copyright of 70 years after the death of a designer, whatever it is; it is a much longer period of copyright. So the public does not benefit; the public keeps paying the same price for their Edith Piaf, or whatever it is that has gone out of copyright. The only group that miss out are the performers, because we stop getting paid after 50 years. The record companies actually get more because now they are not paying the performers and they are making a larger profit on a CD. They own the artwork and nobody else can put that out with that artwork because it is controlled for a much longer period of time. It is really an issue, as always, of creators and performers losing out. We always get the short straw and we would like Government to listen more to us and to have a better balance of rights based on the performer and creator. The imbalance at the moment for us is between the exploitive community and us. We are often very much in line with consumers. At one end of the thing you have the creators and the performers and at the other end you have consumers, and it is what happens in the middle that is the problem as far as we are concerned. We often see very much eye-to-eye with consumers - not on everything - and copyright protection is one of them. As I have explained, it is not necessarily in the consumers' interests that that is not extended. Q63 Janet Anderson: If I could just press you, David, on the 50-year issue. What does Government have to do to get that extended, because I think there is a European angle to this? Do you think there would be any cost to the Exchequer in not extending it beyond 50 years? Mr Stopps: Yes, if you could extend it beyond 50 years you would get more income from taxes and the State would benefit. Poor musicians, performers and creators would not cease to have an income so you would not have to provide State aid to keep them living properly; and you would also be able to tax rich artists, and record companies, after the 50-year period. From the State's point of view there are clear advantages in extending. True you have to go to the European Union now and campaign on our behalf there (please), and hopefully we can persuade the whole of the Commission to come onboard with us. Q64 Janet Anderson: Has anybody made an estimate of the cost to the Exchequer of not extending it beyond 50 years? Mr Stopps: I am not aware of that. There may be but I do not know. Q65 Chairman: Jill Johnstone, you are completely opposed to this, are you not? Ms Johnstone: Yes, we are. I am very sympathetic with many of the arguments about artists' rights, and it is an issue we raised with the Commission when we were making our submission on their review of copyrights in 2004, about whether copyright could be used to try and improve artists' rights. I do not think the way to do this is to extend the term. One needs to look at other ways of protecting artists from unfair contract terms. Our view is that the terms of life for 70 years and many copyrighted works are way over what is needed. It is very hard to see how you can relate them at all to need to incentivise investment in creative works. The way to deal with this is to reduce copyright terms and look at other ways of improving artists' rights. Q66 Chairman: That is not what happens in other countries though. We are relatively short in terms of the length of term of copyright in this country, compared with America and Australia? Ms Johnstone: America yes, but not necessarily other parts of the world. I would start looking very critically at these extraordinary long lengths of copyright term - and I cannot see any argument for justifying incentive to create and invest in creation - and to look at bringing those terms down. We would like to see a presumption against the extension of copyright terms; and, going back to the evidence-based point, a serious independent look at the costs and benefits to society as a whole of these very long monopolies. In other areas of the economy we have the competition law which we strenuously enforce; and here we have turned it on its head. While it is legitimate to recoup returns on investment, it is not legitimate to have monopoly rights to extend to the descendants of the original creators. Q67 Chairman: We are not talking about descendants; we are talking about living artists whose creative work is suddenly no longer to be theirs to control? Ms Johnstone: In the case of sound recordings which are 50 years, and other ones, we are talking about life plus 70. I do not see that there is an economic case for extending the current term. In fact I think there is a good economic case for moving back in the other direction. Chairman: We may return to this in our next session. Can I bring in Adam Price. Q68 Adam Price: My question is to Christian Ahlert. To what extent to you think that the nature of creativity is changing in the digital age? The false dichotomy between the professional artists and the passive consumer seems to be blurring with the copying. Copying is part of creativity, is it not, whether it is sampling in music or the use of collage going back a hundred years in art? Is the nature of creativity changing and should we be enabling that by actually bringing down some of these copyright barriers? Mr Ahlert: It is not necessarily changing. Something which comes naturally to all of us is when you first go to school you learn by copying. When you learn how to write you basically are being taught by a teacher and you are meant to copy; that is your basic way of doing things. Over time your creativity and originality increases because you are assembling the world and you are aggregating it. That was always part of the way we as humans basically live and learn. What is different now is the economic transaction costs are different. If you actually speak about a digital environment you are not producing a copy of something; it is exactly the same and that makes the whole economics of the game very different because now we can easily distribute a song to thousands of people and it has the same quality. I think what is happening is, if I look at my younger cousins for example, the way they use the Internet, they go to Google, they look for images and then they copy and paste them into a document. It is a very rational way to work in this environment and this is where Creative Commons provides, because we actually work within existing copyright law. We are not aiming at changing copyright law. We are trying to provide an environment with a licence which says you can do certain things and you can produce derivative works. There are apparently many people out there who think that is a good idea. We have just done a small study for the Arts Council looking at how many people in the UK are using Creative Commons' licences. The licence has just been available for a year now and you can see there are more than a hundred thousand websites using it now, which is an indication of this. There are many artists who think it is practical to copy parts and then reassemble them. There is also the question about what the law should do if you effectively break it. Let us face it, it is the reality out there. My friends all have lots of music on their iPods and laptops which is not bought in a record store. Do you want to treat this as basically a criminal offence or the way the French are going right now, and looking at it and making it more like a traffic offence; that is effectively what is happening. Q69 Mr Sanders: I like David's idea that if we do not extend the rights there will be all these impoverished artists. It conjurers up a vision of Mick Jagger having to claim pension credit! I think you might over-egg the pudding on that one. I think there is a real issue here of what is the nationality of the creative talent? Because we have this issue, do we not, of content that originates in one country not being freely accessible in other countries. For example, DVDs that originate in America are available in a content that cannot be accessed in other parts of the world. What vision do you come down on? Is it that the creative content should be available to everybody wherever; or that we should hide behind different national systems, perhaps the way the French are going, perhaps the way we should go, where we try and protect (or maybe not protect) our domestic consumers from having access to that content? What side of the fence are you on? Mr Stopps: Firstly, I would like to say, whilst we do represent Robbie Williams and Pink Floyd and those sorts of people, we also represent a host of performers who are having to work at Tescos on the checkout to get by. Q70 Mr Sanders: That is only because their music is not as popular as David Gilmour and Roger Waters? Mr Stopps: Maybe they have had a mild amount of success and this would come back to them in later years. Q71 Mr Sanders: One-hit wonders. Mr Stopps: Not necessarily, no. There are a lot of people out there who go round clubs performing and never really get into the charts but they are a very important part of our culture; they are a very important part of society and they need that protection. The Robbie Williams do not need it. Q72 Mr Sanders: I am being provocative. Mr Stopps: I want to make that clear. Most of the people we represent are struggling performers - featured performers admittedly but struggling and trying to make a living - and we are trying to get them out of the Tesco checkout counter so they can make a permanent living as a professional and get them properly compensated so they can afford to do that and live; create much better works; much better recordings and tour more etc. That is the name of the game as far as we are concerned. As far as the DVDs and the territorial restrictions are concerned, I totally agree with you - I would like to see them removed. It is outrageous that you buy a DVD in the USA and you cannot play it in the UK. I do not see any justification for it. Creative performers want their music to be heard and seen by as many people as possible; that is the bottom line. They want as many people as possible to enjoy their creations. From that point of view, that is where we come down. We would say we certainly want maximum access and anything that was strict access is undesirable. However, if you do have access we should be compensated. Q73 Mr Sanders: Can you do that on a country-by-country basis, or do you actually need some international standard? Mr Stopps: The international standard of course came from WIPO originally in Geneva. If there are international treaties they then come through to the EC; they then make a directive, and it then comes down to national law in the UK. You would have to start in Geneva with WIPO, I think. Certainly the British Government is represented there, as you know. I think it should be as international as possible. There should not be any of these barriers. Like I say, we want maximum access to the creations that our creators and performers provide. Q74 Rosemary McKenna: Before I go into the questions I want to ask, I want to say something about the dilemma that you all face because I think that is a problem we have. Behind every Robbie Williams and every K T Tunstall, there are loads and loads of people who have been working away there for years and years trying to get their music played and trying to get their arts performed. It is about strengthening the balance between the consumer getting good quality affordable access, and about looking after those people who are not going to make it. I think we should be talking more about how we use the digital new media to do that, to try and make it accessible. I read recently about the young girl who set up a club in her own basement and put it out on the Internet and she is hugely successful. That is the kind of thing. We get a wee bit bogged down in worrying too much about rights and not enough about saying, "Let's use the new media to try and improve access" and thereby improve everyone's accessibility and protect the performers. Would you like to comment on that? Mr Stopps: Certainly the DIY possibilities that the Internet have created are fantastic. As I have said, at one end you have the creators and the performers, and at the other you have the consumer. What some artists are doing is completely missing out what is in the middle and going straight to the consumer with their own websites and selling their own CDs on the websites; announcing tours on their websites; and selling CDs of shows. So you completely miss all that out. The thing they are going to lack is investment. The record companies can provide serious marketing investment which can take them right through to another level. Occasionally one gets through, and this is where the Arctic Monkeys are a great example, but they really are the exception. You do need that marketing investment from the record companies. However, the DIY model is very good; but even with the DIY model you are going to depend on collection societies. Collection societies are going to become very important to you. If nothing else that this Committee does, if you can create regulations for the democratic governance, the collection societies, I think that would be an amazing achievement. Q75 Rosemary McKenna: The young people who are downloading and accessing through the Internet, do they understand that? Mr Stopps: Yes, they do. They have to be members of the PRS. Q76 Rosemary McKenna: No, I mean the people who are accessing it. Not the performers but the youngsters who are actually accessing the music, do they understand all of that? Ms Pike: I think possibly in many cases not actually. Going back to your original question, about how the industry really should be taking advantage of the opportunities of the new digital technologies - I think that is absolutely right. I do think the DIY band phenomenon that David is talking about is extremely exciting. Obviously the Internet does create access to markets for individual bands, also small labels, small music publishers and so on. That is actually a fantastic leveller, which is really very, very exciting. I think in terms of what we can actually do to try to monetise new technologies and really take advantage of them, we need to find ways, for example, of legitimising peer-to-peer technology. Peer-to-peer is simply a technology. It has good uses and it has abusive uses. The industry is really trying very hard to license it wherever possible. There is one emerging business called PlayLouder which is basically an Internet service provider and if you subscribe to that Internet service provider you are able to share music with all of the other people who are also subscribers in a secured walled garden-type of arrangement. There are very exciting emerging legitimate uses for peer-to-peer technology. Where we struggle at the moment is in trying to licence peer-to-peer operators who have got no interest at all in respecting copyright. We are talking about services like Linewire, Mininova, Kazaa, Roxter(?), all of these, where basically their business model is blatantly selling advertising on the back of illegitimate music. At the moment they are protected by certain safe harbours in the law, which means that it is very difficult for us to actually either license them or litigate against them to close them down. The upshot of this of course is that the consumers end up being sued because they are the only people who are actually committing any kind of infringement. If we could in some way alter the norm to so that rights holders were able to go to these peer-to-peer operators and license them, then obviously that would possibly alleviate some of the frustrations of consumers in getting sued, because the target would then become the peer-to-peer operators. We would then have more legitimate peer-to-peer services; happier consumers; and remunerated artists. Q77 Chairman: Do you want, therefore, a new copyright law to take account of all these new technologies? Ms Pike: It is a question of how you go about doing it. In other territories, such as Australia, Australia has actually introduced some new legal provisions which clarify the liability of peer-to-peer service providers. In the US it is being done gradually more via case law with the very important decision against Roxter(?) which was last year. It is a question of how we go about doing it in the UK. There are various organisations which are currently trying to look at possible solutions. Q78 Chairman: Last week we heard from BSAC who are an umbrella body. Their view was that we should not have a new copyright law but we should make do with the existing provisions in law, even though these do not necessarily take account of modern technology? Ms Pike: I think it could be just a question of talking and clarifying the existing provision. I do not think you need a whole overhaul of the legislation but some clarification is probably required. Q79 Rosemary McKenna: Do you want to comment on this area? Ms Johnstone: I think a number of issues have been raised which I want to comment on. One was a point raised by Adam Price on creativity. More and more people have access to tools of creativity now, and so journalists find themselves surrounded by bloggers and computer games are designed to be added to, and I think we do need to look more broadly at creativity and where it happens in the economy. I think perhaps our innovation policy is rather old-fashioned in that respect. Another issue that raised was the petitioning of markets through technical means. Clearly David is against regional coding on DVDs, and obviously we are very concerned about intellectual property rights being inappropriately used as anti-competitive tools. I am not sure one needs to involve WIPO in thinking about how one deals with those kinds of issues. There are things the UK Government can do as well as the Commission to look at how one stops that kind of market partitioning. I agree with Emma, the technology has produced fantastic opportunities for people and we do need to find ways in which consumers can use it with certainty. I think the current uncertain environment for consumers is not helpful, and it certainly puts consumers and the industry at loggerheads with each other. Finding new ways in which people can make use of the technology is very important. Mr Stopps: I would like to say something on your point about do we need a new copyright law. I think I would agree with Emma that we just need a few changes to the existing copyright law. It has taken us a very long time to get to where we are with the amended 1988 Act. There have been a lot of good things happening and, I would say, some bad things. If I can just give you a few very brief examples of areas where we think there is a huge imbalance. I mentioned about the collection societies; they are going to become more and more important as we go into the digital arena. The democratic governance of collection societies is absolutely essential. There is only one that is right at the moment, and that is the PRS. They have six publishers and six writers on the board. The other monopolistic societies need to follow that example. If you are going to be a monopolistic collection society you must have democratic governance. I cannot say how important this is. If you take PPL, for example, over 90% of their income is due to featured artists, the people we represent. Nobody plays a record on the radio because of a session player or because of a record label - there might be a few jazz genres where that might happen - but let us say 90% of the radio play comes from featured artists because DJs want to play featured artists. We only have one representative on the PPL board out of 16 featured artists and that is a big problem for us. Q80 Chairman: Do you think that is something the Government should approach? Mr Stopps: I do. I think the Government should say, "If you're going to be a monopolistic collection society, you have to have a democratic board structure". It is just basic democracy. We are not represented properly and it is a big, big issue. There have been abuses which I could go into but we have not got time. The other thing is audio-visual rights - that is a very big issue for us. There is no legislation for audio-visual performers. The balance of right is completely lacking in that area. If you get played on the radio, as a performer you get paid; your public performance right kicks in and you get paid by PPL; if you then make a video where you are actually performing twice as much, because you are now an actor in the video and you have got your record playing underneath it, as it were, you get no rights at all and it all goes to the record company. That is an imbalance which desperately needs putting right. Fair dealing is another issue. There is a company called Classic Rock Productions at the moment which is putting out DVDs of footage of Pink Floyd, for example, and then they get an unknown musician off the street to critique it and review it; it then falls under the wire because it is now a work of review and criticism and, therefore, they do not need to clear any rights at all and they do not pay anybody any royalties. This company are on their 60th DVD and they are making an absolute fortune which desperately needs sorting out. There could be a lot of other companies following them which could drive a coach and horses through the entire copyright system in this country. Q81 Mr Sanders: Could you explain how that works? Mr Stopps: With fair dealing in the 1988 Copyright Act if you are using a work for, say, a news programme or for review or critique then you do not have to get any rights. BBC1 News, for example, when they use a bit of football footage from Sky can do that legally and they do not have to pay Sky. They can do it because it is a news item and it comes under the exceptions rule. Fair dealing for review or criticism also comes into those exceptions. This is a huge issue which I cannot even begin to tell you. This company very cleverly spotted the loophole and are exploiting it to the maximum and others will follow. Q82 Chairman: It is a tweak that you want? Mr Stopps: Yes, a tweak. I think the spirit of the law was that it was genuine critique and review, for example in a programme that genuinely reviewed such things, but not to sell them on the open market for commercial gain - that was not the intention. However, the law does not say that as such and it needs to. The other point that is very big to me with performers' and creators' rights is that the right to remuneration that PPPL administer has been a big success for us. It is not assignable in contract and, therefore, it is a right that a performer has and a record company, on the contract and recording agreement, cannot assign it. It is an independent right that we all get. That is the only one I can think of under UK law where a performer has got a right that is not assignable in contract, and that is because it is a remuneration right. We are against exclusive rights. Exclusive rights do not mean anything to us. If you take the right of making available or the moral rights of performers that came in this year, those are meaningless because the moral rights are always waivable in a contract. A record company (and a publisher for that matter) will never sign an agreement where they are not waived so they are just meaningless. The making available right, which is the big exclusive right that we got from the WIPO Internet treaties, is always assigned and is totally non-negotiable. It is always assigned so we get no benefit at all from it. Chairman: I think we are going to have to move on! Q83 Rosemary McKenna: You are saying that Creative Commons is a balance between one extreme and the other - total copyright and freedom. How many works are currently licensed under Creative Commons? Could you give us an idea of the range of the work? As is sometimes suggested, are Creative Commons and the BBC's creative archive a threat to other industry stakeholders? Mr Ahlert: Let me start with the first question. Creative Commons was started in the US something like four and a half years ago. Now you can find on the Internet roughly 25 million back-links to Creative Commons. It sounds a lot, 25 million. I have to example very, very shortly what I mean by "back-links". Basically what you do is have a piece of work - it could be a picture - and you put it on an Internet site; you attach a licence to it which has a small logo and underneath you have what we call a "human readable layer" - because it is not the licence in itself, it spells out the basic terms of the licence; like you can make a derivative work, or you can copy this work. We have done this because nobody on the Internet has the time or the inclination to read a licence which has been drafted by a lawyer. This is one of the problems. If you license stuff you have a five-page document and you always click through. You have lawyer licence, if you like. There are roughly 300 jurisdictions now throughout the world which have created their own Creative Commons licence. We started in Oxford three years ago with a team of lawyers and then the licence was released a bit longer than a year ago. As I said earlier, there are like 100,000 links to the main Creative Commons page, and this is an indicator of how many licences are used. You can in the meanwhile search through Yahoo and Google for Creative Commons licence content. If you look at the Internet, how do you find stuff, how do you access something? The main access points are Google and Yahoo. This determines what you see. For the Arts Council project we have developed tools and you can measure how many sites Yahoo finds. What type of content; anything from music to films. There is a very prominent photo-sharing website, for example, which was bought by Yahoo last year which is called Flicker. People upload their digital photos on those sites. A significant portion of those pictures are licensed under Creative Commons. Yesterday I had a meeting with representatives from 30 different museums in the UK, because they are looking at the possibility of using Creative Commons. We have a number of very small, young record labels, also based in the UK, that are making use of Creative Commons. You might ask, why are they doing this? Quite often they are young start-up companies; they are mainly signing up unknown artists and what Creative Commons basically says for the songs is that you can share those songs with others; you can distribute them. In a sense it is a good marketing tool in a digital environment. These online record labels are saying that they are sharing more of the profits they make with the artists then other record labels. This is a very young and emergent industry. I think it would be very interesting to look at how the business models work and how they actually make money. I would not recommend Creative Commons for everything, but in certain contexts it makes a lot of sense. I had a sense in the discussion that there was still this separation between consumer and professional producers. I think you will have that separation always but I think you can conceptualise consumers differently in this environment and they are more proactive where they participate in the production of culture and the adaptation of culture. That is the main reason why certain artists, even small businesses in the creative industry, are starting to choose to use Creative Commons because they see that basic copyright law is more a barrier towards that form of creativity than it actually helps. Q84 Mr Hall: Just tell me if I understand this correctly. What you are saying is that the copyright of 50 years should be extended to 70 because artists in 1955 who did not sell any records and did not make it big are reliant upon the income from those record sales and airplays now. Is that what you are saying? Mr Stopps: Absolutely. I was reading an article recently about Joe Brown - and I do not know if you are old enough to remember him, I am - and he had a few hits around that time, probably in the late 50s and early 60s so he is not out of copyright yet but he will be soon, but he has not had any success since. He is relying on those few hits he had at that time, which keep getting reused and replayed on the radio all the time, to give him some sort of pension in his older age. That is absolutely an issue. Q85 Mr Hall: That must be one of the very few exceptions, must it not? There are not many artists out there who are reliant on two or three hits. What sort of income will he be getting? Mr Stopps: It depends on how much it is played on the radio. Certainly his records are still played on the radio and people still buy them. All that will happen is that the record company will keep selling them but the performer will not get paid. The record company keep making a profit, the consumer does not really get any advantage because they are still paying the full price for the CD and the only person who will lose out is Joe Brown and there are lots of Joe Browns out there. Q86 Rosemary McKenna: He is a performer or just not a writer? Mr Stopps: Absolutely, that is the thing. If you are a writer you get 70 years after you are dead. The difference between those two terms of copyright is so extreme, why is that? It is certainly discriminatory against performers. The reason is that the law on the rights of performers is one hundred years younger than that for composers, creators and songwriters. That is the only reason there is a difference. On the song-writing side, copyright can last for 130/140 years if the song was written when they were 20 and they lived to 80. On the performers' side it is 50 years no matter what. Those two things are so far apart they need to be brought together. Q87 Mr Hall: You are trying to get the genie back in the bottle which is almost impossible. Because of the technology that is available, people download stuff on the Internet and they do not give a second thought about copyright and probably do not understand copyright law. Why do we not find some other way of rewarding the artists for their creative talent rather than just relying on copyright? Mr Stopps: We would be open to any suggestions that you had if they were reasonable! I think one of the key features of this is education in schools on copyright and the importance of intellectual copyright to this country in terms of the economy and cultural significance. I think education is a fundamental issue which we need to focus on. Q88 Mr Hall: The youngsters are actually downloading the material that is popular today; that will not aid Joe Brown; and Cliff Richard, Mick Jagger or Keith Richards are not impoverished; they are reasonably well looked after. If we actually made this part of the curriculum and said that this is what copyright is all about, that will only deal with people who are illegally downloading stuff and playing it publicly and not for their own private use. There is not much benefit there, is there? Mr Stopps: I think there is. I think education is absolutely important. It is a very important part of the economy now - intellectual property rights - and I think kids need to understand when they are just ripping music for nothing that there is somebody who created that and performed on that who is not getting paid, and that is not right. We have not really mentioned home-copying measures, but that is one way of going where the writers and performers can be compensated for a degree of home-copying. We would certainly be in favour of home-copying levies. Last year in Europe half a billion euros were collected in home-copying levies and distributed to performers, creators, record companies and publishers and that is a lot of money. Q89 Mr Hall: We have talked about education and putting this thing in the national curriculum; I am not entirely convinced there is a need for that. What about the general consumer, how do we actually go about informing the consumer on this? Ms Pike: Could I just jump in on the education point particularly. My organisation, British Music Rights, has actually done quite a lot in this area, both working on its own and also with the Government. Teachers in our experience are actually crying out for copyright materials to enable them to teach copyright in schools. It is less actually about telling people that they should not download illegally, and it is more about empowering the creative individuals and creative entrepreneurs of the future. Copyright is a key business skill considering that 80% of our economy is creative industries and that is likely to grow in the future. If we want to fuel and empower those industries then we need to embed copyright as a core business skill in schools and also in further education. We produced some lesson plans two years ago and we did a mail-out to 6,000 secondary schools saying, "We have done this resource, would you be interested in receiving a copy?" 80% of them came back and said they were interested. I think that just demonstrates really the demand among teachers for these kinds of resources. Q90 Mr Hall: What about making the consumer more informed about the problem? Ms Johnstone: If you can make people more informed about creativity - and in a sense copyright is a means to an end and not an end in itself - everyone needs to get into the curriculum ideas about the importance of creativity to the economy and their creativity to the economy. In a sense, you will not get respect for laws that are not seen to be both reasonable and just. While we have consumers being prosecuted for activities and DRMs which are very untransparent, that are preventing them use goods in the way they think they ought to be able to use them, we cannot expect respect for a law that does that. While we are on the reform of the law, I think David made an important point. We obviously want to see the exceptions and exclusions and the law clarified to improve consumer rights and tell them what they can do rather than constantly tell them what they cannot do. A point David touched on - there is no distinction in the sense between commercial exploitation, quite often, in the law and consumers' private infringement. We see this in the development of enforcement legislation. I think we need a very clear distinction between commercial counterfeiting and exploitation for profit (and certainly we need some very stringent enforcement measures against that), and consumers' private, totally non-commercial use of the products they have purchased in their home. Currently the law does not provide that clear distinction well at all. Going back to the 50-year term issue again - it seems from the evidence that most returns are made in the early years of release. As you say, young people will be copying things that are now. It seems to me that the issue of artists' remuneration is to ensure that they get a fair share of those returns so they, like all the rest of us, are able to put money aside for their retirement, rather than extending copyright term where still the returns may not be fairly distributed. In a sense it is the wrong tool to deal with the issue of fair remuneration for artists. Q91 Helen Southworth: Can I draw you a little further on the concept of education, and particularly education within schools. What I am hoping for is some kind of an opinion on educating creators, and also educating and developing knowledgeable consumers, knowledgeable viewers and listeners. Do you have opinions on the kind of vehicles that we could use using new technologies to re-establish some of the film clubs, the DVD clubs in extended schools, or those sorts of things? Have you thought about that? I am getting tremendous enthusiasm from young people in the constituency who want to be able to do interesting things together using school facilities, and quite a lot of interest from special schools in the constituency working in creativity and music. They are terribly keen to do these things and yet there do not seem to be the vehicles there for them to do them. Ms Pike: We are currently working on a new project with Young Enterprise in schools. Young Enterprise are very keen to do a music-specific project in schools because they have found when they have set up their Young Enterprise business a lot of children actually choose to do a music project in any case. We are helping them to develop a short company programme specifically on music with resources that are tailored for that. Obviously copyright will be a key component in that. That is one area which I think is very exciting. The DCMS and DfES are planning a seminar shortly to look at how you can put copyright teaching into various bits of the curriculum. That is another thing going on. In terms of creators and start-up creative entrepreneurs, there is a service called Ownit, which is part of Creative London, which I think is a very, very interesting model which could possibly be rolled out nationwide. That is an IT advisory service; so if you are setting up a new creative business you can go there and have access to people who have already done it and you can get advice. It is a very, very useful organisation. Q92 Helen Southworth: What about the teachers or young people themselves who want to set up a DVD club within school watching film or listening to music, how are we going to develop that side of it - about learning and assimilating? Mr Ahlert: Certainly copyright law is a very complex beast, if you like. We also hear in this discussion there is an angle where it is almost trying to be a pension system and it can incentivise initial creativities. When you are a teacher, let us say you have the technical resources in your school and you have access to the Internet, and you have computers, you are quite unsure about at what point you are encouraging infringement. For example, I think some teachers do not choose to do certain exciting projects - like a film project where you basically choose a collage using different materials that you find on the Internet - and say, "Stop, don't do these things", which could be exciting and facilitate creativity in teenagers and give them the skills to have that specific creativity; because you need to learn how to use certain programmes and in a way it either limits how much you need to change an image until you can use it, or you cannot use it in the first place. These are the questions that teachers have. There you could just provide them with better material for them to be taught. What are the services that are used? What are the practices that happen out there? One of the most exciting applications right now on the Internet is audio-visual uploading services. One is provided by Google and one is an American-based company. There are thousands of short movies uploaded which are basically made by a rather young generation. I go there all the time to find some really interesting fascinating weird movie from South Korea. Mr Stopps: Children obviously are at the forefront of copyright in a way because they are at the forefront of illegal file-sharing etc; but they are also creators and performers performing as children. We need education generally in the area of copyright to say, "If you want to be a creative performer, you really want copyright; but if you're just going to be illegally file-sharing then perhaps you don't want copyright". It really has to be discussed and they need to be informed of exactly what the rules and regulations are so that they know. A lot of them have no idea. They have no idea it is even illegal. We need more education in general. There are certain exceptions already for educational uses in copyright and maybe that needs to be looked at. Q93 Mr Sanders: Somebody creates something and they put it out there, any number of things can happen to it. For example, for the Eurovision Song Contest our entry sounds great and we all hope it is going to win. The other day I was listening to Simon & Garfunkel The Boxer and I thought "Hang on a minute, could our entry actually have been created if it had not been for The Boxer?" There are incredible similarities between the two. If you take any successful piece of music you can look back and actually trace the origins of the harmony of where it comes from. Ms Pike: I have not actually heard our Eurovision entry so I cannot comment on that particularly, but I would say there seems to be an increasing emphasis on copying, pasting, sampling and plagiarism, frankly. I just want to point out that copyright law does not in any way inhibit being inspired by other people's work. I think that was demonstrated incredibly clearly recently in the Dan Brown case on the Da Vinci Code. He was obviously prosecuted for having borrowed elements from a plot in a previous book, but the judge found, absolutely correctly, that that actually does not infringe copyright law. You only infringe copyright law if you literally cut and paste. It is absolutely okay to borrow ideas, concepts and be generally inspired. I just want to stress that that balance already exists in copyright law. Just to respond to some of the remarks on Creative Commons: Creative Commons is a new kind of licence; it is a copyright licence fundamentally and there is any number of different kinds of copyright licences. With the kind of sampling and sharing which Creative Commons encourages, you can do that in other ways as well. If you look at any number of artists' websites they are putting their songs onto their websites for their fans to be able to remix and put the remixes back onto the Internet and make them accessible and so on without using a Creative Commons licence. Q94 Mr Sanders: Can you see a time when the norm will be that creators and performers take on the role of being producers and publishers? Ms Pike: That is happening already. That is absolutely happening. I do not think that the record label and music publishing roles are going to vanish completely; absolutely not: but we are seeing a number of fans doing more and more themselves, absolutely. Just to finish off on Creative Commons, my one problem with the Creative Commons licences is that they do seem to value copying and pasting and that kind of creativity above original creativity. Their licences are geared so that if you create an original work you sign a Creative Commons licence and you put it out there. You basically give away your rights irrevocably for the entire world, for the entire duration of copyright so then other people can copy and paste it. For me the balance is not right there. Mr Ahlert: Could I just respond to that because it is not entirely correct, because you can choose different licences. There are different options you can choose. In the UK more people have chosen to use a licence that does not allow derivative uses of your work in the sense you mean - this copy and paste creativity. There are a specific number of people who chose the option that it should not be done to their work; whereas I think 38% of the licences specifically allow for this type of derivative usage of a song or text. I think it is very much about generations. When I speak to my younger cousins they can produce amazingly big Word document which crash my uncle's computer because they have basically found too many images on the Internet, and they copy and paste them into their homework. This is reality and I am not attaching any kind of value judgment to it. This is happening, and it is happening because it is a rational thing to do. In some sense you would need to change the basic functionality of many computers which allow for this type of copying. Q95 Chairman: I think we are going to have to move on to our next session as we have a whole lot more. Can I ask my colleagues whether anybody has any final questions for this group of witnesses? No. Very quickly, David. Mr Stopps: One of the things which has just been touched on is whether performers and creators can become publishers and record companies. One of the things which is driving this is the digital rates that performers are getting from the major record companies. In the physical world there is a royalty of perhaps 20% of dealer price. The major record companies are saying that should also apply in the digital arena. We all know in the digital arena there are no manufacturing costs; there is no making artwork; there are no lorries running round the country delivering CDs; there are no warehouse costs. All those costs are gone in the digital arena and yet they are still paying performers this same royalty rate as in the physical world and are making an absolute killing. I do not know what you as a Committee can do about that, but it is a huge problem for us. We are getting such a small part of the pie now that it is going to be difficult for performers to make a living. Chairman: I think you have put the case for the performers very well this morning. Can I thank all four of you very much. We will now move to our next session. Memoranda submitted by the Alliance Against IP Theft, the Creators' Rights Alliance, Phonographic Performance Limited and the Design and Artists' Copyright Society
Examination of Witnesses
Witnesses: Ms Lavinia Carey, Chair, Alliance Against IP Theft; Mr David Ferguson, Chairman, Creators' Rights Alliance; Mr Dominic McGonigal, Director of Government Relations, Phonographic Performance Limited; and Ms Joanna Cave, Chief Executive, Design and Artists' Copyright Society, gave evidence. Chairman: Can I welcome Lavinia Carey from the Alliance Against IP Theft, David Ferguson of the Creators' Rights Alliance, Dominic McGonigal of PPL who, I am sure, may have something to say about what we heard before, and Joanna Cave of the Design and Artists' Copyright Society. Q96 Janet Anderson: Perhaps I can put this question to you first of all, Lavinia, and then the rest of you may like to chip in. You have given examples of British creative industry successes, such as Harry Potter, Coldplay, games like Tomb Raider, the red phone box and the Mini, and in the same paragraph you state that the right regulatory environment is needed for the creative sector to remain innovative and dynamic. Do you think that creativity is properly rewarded and protected in the UK? Has the present regulation helped those successes and do you think we have got it right or do you think there should be more regulation or perhaps some deregulation? Ms Carey: I think that the current regime does have it about right. There are problems that the Alliance sees with enforcement of some of the existing regulation and we have been asking government and enforcement agencies to be more active and to apply more resources for enforcement agencies to be able to enforce the existing law because, without enforcement, the laws are not really worth the paper they are written on, but, on balance, we would say that there is a fair degree of ability for creators to make a living. The reason why we are concerned about the lack of enforcement is the fact that there is evidence that industries lose a lot of money from counterfeiting and piracy and, as we are talking about new technology, it is not so much about physical piracy, although that is a big problem, it is increasingly about digital copyright theft which some people do not call 'piracy' which is why I think we have the difference in language with the Consumer Council and, by the way, nobody has been prosecuted ever. There have been civil actions, but nobody has been prosecuted. I think that what the Alliance would like to see is some tweaking of the law, as has been mentioned before, to ensure that for future creativity, and this is not about us and them, this is not about industry versus consumers, we are not at loggerheads, everybody can be creative, but the joy of digital technology and the developments that we see is that everybody has the opportunity to be creative. Increasingly, the UK economy is depending on creativity in a knowledge-based economy, so we would like to see better enforcement, clarity where it comes to digital copyright issues and we would like to see more of an appreciation that some of the measures that are in place for protecting copyright and intellectual property rights generally are not about telling people what they cannot do, but about making it clear what people can do and that is the way the economy will continue to flourish and the creative industries will continue to flourish. Ms Cave: Certainly, like a lot of the other witnesses, we would concur that the law gets the balance about right, but you asked if creativity is properly rewarded and protected. The issue that we face all the time is the rise and rise of major industry players using unfair contracts to engage creators in their products and there is an increasing trend of, "Let's use it or lose the opportunity to participate", which makes it terribly difficult for individual creators to earn any income at all from their rights and also terribly difficult for individual creators to be recognised as the creator of their works, so that is an issue. There are also significant barriers to enforcement which Lavinia touched upon. It is incredibly expensive. It is very expensive for individual creators and it is also very expensive for many collecting societies like ours that work on a not-for-profit basis. There is one more point I would like to make, that reward is not just about money, but it is also about recognition and we know that artists are as interested, sometimes more interested, in being credited as the creator of their works as they are being paid for it, and it is increasingly difficult, particularly in the new media environments, to encourage that that happens, that creators are recognised properly, so there are some issues. Mr Ferguson: I would just like to completely agree with that. The absolute core thing is that, if you look at the earnings profiles inside any of the creative industries and you look at the people who are actually at that creator end, what you will see invariably is exactly the same graph where you have a vast number of people of whom a very small percentage earn quite a lot of money, the Mick Jaggers, another small percentage who earn just about a decent amount of money and the tail who earn next to nothing. In the case of the Performing Right Society, for instance, 44% of its members earn nothing, absolutely nothing out of royalties. The cause of a lot of this is unfair contractual terms that are placed in order to be able to put work out both by broadcasters and by record companies. The record companies' business models frankly are scandalous and they have evolved to the point where the artist is virtually paying the record company in order to have the work out there, quite unbelievable. If you take, for instance, a video, you presume the record company has paid for it, but the record company has not paid for it; it is the artist who pays for it and it just gets added to his bill, yet the record company has it available as a piece of their IP. The other absolutely vital point in this as well is that the only way to protect creators inside this regime is an enhancement of the moral rights regime. Copyright by itself is just a tool, it is an economic right. We are not particularly interested in copyright. What we are interested in is authors' rights where the identity of the author in the work, be they a performer author or a writer author, is that you cannot divide them. That is the way to make this thing work better. Also at that point, that is the point where the consumer then identifies with the author because it is the author's work and it is not something created by some large, multi-national company. Q97 Janet Anderson: Do you think that, by dealing with the moral rights issue, that deals with the problems of the record companies? I am really interested in this because I have a very good opera singer in my constituency who told me he was strongly advised not to enter into a contract with a record company precisely for the reasons you have given and he is now proving to be very successful without it. Mr Ferguson: I personally think this is the case. I remember when I was in a band and one of the things we were extremely concerned about was that our records would not go on sale in South Africa at the time. As far as the record company was concerned, it was a deal breaker if we were not prepared to let them sell it absolutely everywhere. The only way we got round it in the end was to write them a letter saying, "Well, okay, we accept your terms, but could you forward any royalties we get straight to the ANC", so they did not release it in South Africa. Mr McGonigal: Yes, I broadly agree with the other three speakers, that we have actually got a pretty good copyright regime here and I think the 1988 Act was very far-sighted in putting in core rights for creators. Let us just be clear about what copyright is. Copyright is actually allowing the creator to own what they create. It is as simple as that, a really very simple concept, and I do not agree with this idea of private rights versus public domain. From where we sit in PPL, we have 8.5 million tracks on our database which is called 'CatCo'. All 8.5 million of those are available on a licence to any radio station, any TV company, any restaurant that wants to play music in their restaurant to make a better environment. Actually I do not see, from where I sit, any conflict between that ownership right where the creator actually owns what they have produced and it being very widely available to the public at large. I think what we are seeing now is actually a major shift in the importance of copyright for the creative industries. Obviously in the 19th Century, basically you played live, got your fee and that was it. Now, you make your recording and it could be used in any number of different ways and you absolutely need that basic copyright to get the royalty flow coming back. I think that comes down to us, as a society, recognising that shift into the knowledge economy, into a creative economy, where the things which are really valuable are not the physical objects, but they are the things that are produced in the head and in the heart. Those, I think, are things that are valuable increasingly both for our society, for our culture and for the economy, and I think that is the shift that we are seeing now and I would hope that this Committee and indeed the Gowers Review would actually take that as a sort of fundamental point, that shift in the value of intangibles. Q98 Philip Davies: In the discussion we have had about copyright, the National Consumer Council felt that the copyright laws which were designed for an analogue age were not fit for purpose in a digital age. I just wondered, first of all, if you would comment on whether you think that there is something structurally wrong with the copyright law for a digital age and whether it needs to be completely overhauled as a result of it, but also they felt that the copyright laws and things were actually too much against the rights of the consumer and I just wondered how you might respond to that. Ms Cave: I think what was not mentioned enough previously, although it was touched upon at the end, is that the law does provide a range of acts permitted under the law without a licence and they are not insignificant acts, research and private study for non-commercial purposes and somebody mentioned earlier review and criticism, et cetera. There is a range of things that can be done by the consumer at large that do not require permission or a licence of any kind and we must remember that that exists. I concur with the other witnesses who said they feel that the balance is right, that we do not need to change the law in response to the new media innovations which have taken place since 1988; the framework is there. What you need to remember to counterbalance the argument that consumers feel that copyright is now a barrier is that the online environment in particular has made it harder and harder for creators in many instances to earn any income and recognition at all and that is largely because the online environment tends to be perceived as an environment in which all content should be free, so there is a natural balance that is coming out of all this with increasing pressure on creators to participate in new media environments at very low costs, very low charge or even for nothing so that the consumer can access their works. There are many, many initiatives that creators are happy to participate in for nothing or by charging very, very low rates, so I think the consumer is actually very well served by the online environment and that the law does provide a balance; there are a lot of permitted acts. Ms Carey: Perhaps I may just build on that argument and explain that in the world that we are in now, if you take an example of the video industry, which was raised earlier, where we actually lose between £700 and £800 million a year in total lost sales, this is sales that consumers say they would have made if they had not been able to access an illegal version of the work, this is not just the value of all the black market, and about £284 million is lost through physical counterfeiting and piracy, but £435 million is the loss online and through digital copyright theft. I would endorse what Joanna says and refute the National Consumer Council's argument that there is no balance or that we need to provide more evidence of why we need to enforce our rights in the digital world. I would ask where the evidence is for the question that you asked earlier, that consumers are suffering in some way, what the detriment is if we continue to enforce the existing law in the digital environment. I do not know what the evidence is that consumers are suffering. Mr Ferguson: The National Consumer Council have quite an extraordinary view of the world. Please go to a bookshop and buy the collective works of Shelley. You are going to pay the same price for it as you would a book written now. The point in this is that, when you start talking about public domain, public domain does not make it free. Public domain is paid for out of taxation in this country, otherwise it is not maintained and, therefore, if it is not maintained, it just disappears and that disadvantages consumers. The whole point about copyright or authors' rights is that it enables the thing to stay available to the consumer. Copyright is an aid to the consumer in that context. This sort of mythology that public domain is free is really just daft. Again with the Creative Commons' sort of approach, having this stuff all out there and free, what they failed to mention is that they have not done an adequate amount of research on their licences. Their licences do not work in certain types of industries because it means that that piece of creative work is no longer ever available to be monetarised. If they came and had talked to the creative community in the first place, we would have been able to help them to come up with a sensible licence that actually works, but no, it is just another thing which has been presented to us by a bunch of academics who only understand their own arena and they do not understand the rest of the world. Mr McGonigal: Just very briefly, I would say that actually copyright is even more important in the digital age. Q99 Philip Davies: In the previous session, just to come back to the amount of time, the 50-year discussion we had earlier, David Stopps was very passionate in preserving Joe Brown's pension, I think. Where do you all stand on that? Do you all feel passionately about Joe Brown's pension? Mr Ferguson: I think I can probably be quite quick about this. I think all of us support the principle of the extension of copyright for sound recording. Again it is one of these things, as I have just pointed out, where the public domain does not mean that it is suddenly going to be free, and I think David was quite eloquent on that, so there is no need to expand. It is again, I would have thought, just clear, moral commonsense that in some sort of sense the extension of copyright for sound recording should be attached to the lives of the performers on that sound recording. Mr McGonigal: We license on behalf of artists, featured artists, session musicians, backing vocalists, singers and the record companies. We have had a look at this and over the next ten years we have got about 7,000 musicians who will lose their PPL airplay royalties if we do not change the law on copyright term. Interestingly, some of the biggest losers, a lot of the biggest losers in fact, are the session musicians and these are people that you will never have heard of, but you will know the sound they make. They have backed a lot of the great artists in the late 1950s and through the 1960s and, because they were on so many recordings and they were working literally from eight o'clock in the morning until midnight doing back-to-back sessions, their PPL income is significant. If you look at it from a sort of economic standpoint, over the next ten years there is some fairly valuable repertoire which is going to go out of copyright and the amount of money at stake is several tens of millions of pounds. There is a PWC analysis of this. Really what is at stake is whether that money should go to the music industry in royalties to artists and musicians, to record companies for A&R investments, et cetera, or whether it should be effectively available for re-release companies who simply profit on the back of other people's work. That is really the balance at stake in the public. For the consumers, the pricing is pretty much identical and there is no discernible difference between out-of-copyright and in-copyright recordings. Again PWC have done some analysis on that. Therefore, the consumers are paying no more or no less for the older recordings and it is the people in the middle who are benefiting. In fact, consumers would actually be better off overall because of the quality argument, that somebody with a copyright interest who is actually looking after that catalogue will put out the full release with the artwork probably remastered and there is no incentive for a re-release company to do that. Some of them are very good and some of them are actually not quite so good. Mr Ferguson: We do have a slight caveat to add to that because there is also a problem with the owners of the recordings, the record companies, not making those records available and we would certainly, in any legislation that was to do with extension, like to see an obligation placed on the record companies to make the work available and remunerate the right people. Q100 Chairman: There is actually a difference between your position or at least certainly the position of the MMF and PPL. The MMF have argued that there should be a limit on assignment to 35 years and, therefore, it should be for the performer to choose beyond that as to whether or not to maintain the rights with the record company or assign them elsewhere. What is PPL's response to that? Mr McGonigal: We do not actually get involved in the artists' contracts; that is between the record company and the artists. There is a general position that this should be a matter of contract. As far as we are concerned in PPL, all of those 8.5 million tracks are available for licence and there is not the sort of 'use it or lose it' issue as far as the PPL repertoire is concerned. Q101 Chairman: We will need to ask the record companies that question. Mr Ferguson: Watch them duck! Q102 Adam Price: I would like to pursue David's argument that just because something comes out of copyright does not mean that it is somehow free and it is in the public domain. I can understand that argument in the context of CDs and physical products because the record company or whatever still has an effective monopoly on manufacturing and distribution generally, but surely does the Internet not make that different because, if something comes out of copyright and somebody has a copy, they can share it then legally on a peer-to-peer basis free because there are no transaction costs then and potentially one million copies could be made available free if it comes out of copyright? Have I misunderstood? Mr Ferguson: No, I think the key point I am making about the public domain is that the public domain actually needs maintenance. All right, something might come out of copyright and very briefly have a flowering renaissance, but actually it is not really terribly real. The real importance, when things come out of copyright and genuinely their economic life has come to an end in the sense that there is nobody left to benefit from them, is how are they looked after in the public domain. That is the much more worrying thing, how you make sure that something remains in the archive for future generations to build on. As was pointed out earlier on, creativity does ride on the shoulders of predecessors and yes, invariably all of us are taking an idea that started at a certain point and adapting it further as we go along. As Emma pointed out at the beginning, copyright is the ideal regime to do this in because, if you genuinely start sort of plagiarising somebody else's work and that person is entitled to economic reward, but to do real work, as the Da Vinci Code case proves, is good and it is creating wealth. I really think that, with in and out of copyright, there are also really good arguments, people would say, for never having gone to copyright. I am sure that with Mozart it would not be a question so much of paying royalties to his descendants, but it would stop some awful orchestras doing some really appalling recordings, so why not! Ms Cave: If I can comment as well on the visual arts, the public domain needing maintenance issue that David raised is absolutely correct. If you look at the whole repertoire by the impressionists, for example, it is all out of copyright now, so unlimited numbers of reproductions can be made of those works. I am sure you have all received tins of biscuits at Christmas that have Monet's Lilies on the lid, calendars, postcards, posters, digital archives, et cetera, et cetera, it is limitless, so there you have a really good example of free access, but the original works need maintenance and it is very expensive. They need conservation, they need to be preserved and they need to be looked after, so David is absolutely right, that the public domain does not come free, it comes at a cost. Q103 Chairman: Are you suggesting that biscuit manufacturers should be paying for the maintenance of Monet? Mr Ferguson: Absolutely, yes. Ms Cave: I do not know if I am suggesting that. I am just giving you an example. Q104 Chairman: But you are saying that there should remain at least some requirement on those who use works, however ancient they are, to pay towards maybe the maintenance of the paintings or the descendants of the creators? Ms Cave: Well, there is a question to be answered there, is there not, because who does foot the bill? I am sure if you spoke to public museums, they would perhaps welcome that kind of innovation. There are lots and lots of original artworks that are not in museums, but are still of interest to our national heritage and the life-plus-70 term can be very, very useful to help those families look after that heritage until the time comes when the public at large becomes interested in them again. A really good example is paintings by Dame Laura Knight. Dame Laura Knight was the first woman to be admitted to the Royal Academy, very significant, but went completely out of fashion, so nobody was particularly interested in the works that she left behind, but the family did have to maintain those works, and the small amount of income they were able to collect during the life-plus-70 term helped them to do that. Happily for Dame Laura Knight, she is becoming interesting again and it is a credit to them that they have done that work so that the work is available for the country and the world, so there is an issue around public domain. Mr McGonigal: I have just one more comment on that question which is that there was an assumption behind it that digital online is a free distribution, but there are costs, particularly the upfront costs. On the music side, there is the cost of digitally remastering tracks, of maintaining them and putting them into new formats as new formats come along and then making them available to any number of distributors or online retailers, so there are costs there. Again that argument goes towards having a copyright term because then you actually reward the person who maintains that catalogue which will not be just a few songs, but it will be hundreds and hundreds of thousands of tracks which can then be made available with that reward built in. Q105 Philip Davies: Dominic, you stated, coming on to government structures, that the Government deals with the creative industries in a piecemeal fashion with things coming under the DCMS, some under the DTI, other things falling across different departments, creating a lack of focus and understanding. Do you think that the Government's relationship with the creative industries should be just handled better through existing structures or would you prefer to see a single, cross-departmental organisation? Mr McGonigal: I think that it is time to have another look at the government structure because the current government structure in relation to business as a whole is based on the industrial model and, as I say, we are now moving into a knowledge economy which is a very different kind of environment and I think there is a recognition of that in the Gowers Review. The Gowers Review has been sponsored by the Treasury within DTI and DCMS and I think that speaks volumes for where we are moving with this knowledge economy. Looking at the creative industry specifically, we are currently about 8% of GDP, so we are already a major contributor. We are growing at twice the rate as the rest of the economy and we are one of three or four major drivers of the economy, identified by the Treasury and the DTI, over the next few years and I think that the Government should be able to deal with that on a more inclusive basis. At the moment, having to deal with a few people in the DCMS and then separately in the DTI, you lose any of that ongoing momentum. What we have looked at is this core value of copyright which is right at the heart of the economic value of the creative industries. At the moment, we have a Patent Office, but no Copyright Office. Actually there is now a proposal from the CBI for an IP Office to look at the total value of both patents and copyrights to the economy and you can see that linking in with a cross-departmental structure that brings in both the DCMS and the DTI so that you would have both the economic drivers and the cultural element brought together under a single minister. Q106 Philip Davies: For instance, do you think that the Government understands and appreciates the importance of the creative industries to the economy and to the country as a whole or do you feel that it is underestimated? Mr McGonigal: I think the Government does understand it and I think it has been a relatively recent thing. The figure of 8% has only really been acknowledged quite recently and I notice that Gordon Brown, in his Budget Speech, actually said "nearly 10%", so we have already improved on our performance. Ms Carey: I think that a very good demonstration of why we need a more joined-up approach is the fact that industry, through the Alliance, lobbied very hard for a cross-departmental approach to counterfeiting and piracy, IP theft, and that was several years ago. What came out of the effort, which was supported across the board, I think, by the industry, was this Creative Industries IPR Forum which broke down into three groups looking at education and communication, looking at new business models and looking at the problems of IP theft, online and physical. The success of that Forum really leads one to think that this idea could really work. There is another embodiment of how this cross-departmental approach works and that is in the IP Crime Group. The IP Crime Strategy was launched by Lord Sainsbury in 2004 and the Group continues to work extremely effectively by bringing together areas of government which have a direct responsibility for IP crime and deterrence, sanctions and remedies and enforcement. That covers the Home Office, the DCA, Education, the regional offices, the DTI of course, the DCMS, and including the Department for Work and Pensions because of course benefit fraud is involved here as well in terms of crime, and they look at a whole range of areas. I think that that model is a very useful model because it helps us to see the input of all these different departments in terms of IP crime and enforcement and I think the flip side of that coin could easily be translated into a very useful cross-industry type of approach to the positive sides of intellectual property and copyright promotion and how it is going to benefit the economy in the longer term. Mr Ferguson: The IP Forum was very interesting when it took place. I think the civil servants in particular learned a lot during that process. The other thing that was really interesting inside the IP Forum is how much we learned from each other, extraordinary. I was on the Education Sub-Committee and at the beginning of the Education Sub-Committee it was warfare. There were the sort of Creative Commons people on one side and my lot on the other and it looked like it was going to go nowhere at all and in fact inside that Forum the very sensible ideas to create principles emerged from that particular group and I think it was invaluable for everybody who participated. Also, the other key to it is whether anyone ever builds on it and then takes those lessons and gets them up the next stage of government because that is the problem with these things, that the civil servants may get it, but whether that then informs anything resembling policy is a different question. Ms Carey: The interesting thing about the New Business Models Group and what came out of that was very clear, that government did not have a role in developing new business models, but industry and the market have to decide business models and to take advantage of new technologies and that is what, I think, this inquiry is about. There I think it is really important that creators and anybody who is developing intellectual property which is going to have a value for the future has to have a confidence in the regulatory regime, that they know that they can take risks, that they can come up with all kinds of fantastic ideas, the like of which I think you heard previously in the 9 May session from people like Anthony Lilley. There are fantastic opportunities for all types of intellectual property to be created, but there needs to be confidence in the regime that they have control over their rights. Q107 Mr Hall: Individually or collectively, you have referred directly to the Gowers Review which the Chancellor set up in 2005 to look at intellectual property and what the Government could do to contribute to that. Have you any suggestions of what you would like to see come out of the Review? Mr Ferguson: Yes. Q108 Mr Hall: You can limit yourselves to one each. Ms Carey: I cannot give you one. I will give you a small selection. Let the others go with one and maybe I will add a missing one. Mr Ferguson: There has to be some reform of contract law that presupposes that contracts are not just there for the maximum advantage of the person handing out the contract and there has to be some responsibility on the contractor to the person who is being contracted. Everybody has heard the stories of the pop bands who have signed away absolutely everything. That is one example of it. This is rife throughout the creative industries. It happens in book publishing, it happens in photography, it happens in broadcasting, that unfair contracts are given out to creators who are continuously disadvantaged. The creators only become advantaged if they happen to reach a certain economic point. Sir Paul McCartney is not disadvantaged. The rock 'n' roll band that is rehearsing in the Methodist church hall in your constituency at the moment will be given a crap contract and that should not be the way it is done and there should be more that requires fairness of treatment to all creators. I am not saying a subsidy, but fairness. Ms Cave: Perhaps in addition to that point, we would like to see better access to justice and the barriers to challenge copyright infringement being lowered so that creators and collecting societies can make use of the law to challenge infringers. Mr McGonigal: We have covered some of the big ones here, the basic value of copyright, the government structure to deal with this new economy and the copyright term, and there are others, such as applying a three-step test to exceptions and a couple of liability issues which I think Lavinia touched on. If I can pick out one, it will be copyright education. As I say, we are moving into a new environment here and I think, just as we all grew up knowing that shoplifting is illegal, that you do not just go into a shop and take something, I think we have to understand that there is a code of conduct for us as citizens, individuals, consumers online and I think it is learning what that is that should be at the heart of it. I think the very basic thing I would like to feed in here is what I was saying right at the start, that copyright is about a creator owning what they create. If you can get across the basic principle to even primary schoolchildren, that, if they draw a picture, it is theirs, if they do a little short story, it is theirs, and, if they put the copyright symbol on that, then that would give them probably the best understanding of what copyright really is about and then all the other things about paying for things online or asking permission before you do such and such with somebody else's painting or their piece of music, that all follows much more easily, but that basic concept, I think, would be a very powerful recommendation from Gowers. Ms Carey: In general, I would say that, speaking as the Alliance Against IP Theft, one of the key areas we would like to see reviewed is damages so that it acts as an effective deterrent as well as providing some compensation for people who have lost revenue because of IP infringement. I would go back also to the enforcement issue, that we do need to have more resources to be able to effectively enforce the existing legislation. Just the fact that, for example, Section 107(a) of the Copyright, Designs and Patents Act has not been enacted seems utter madness in a digital world where, if there are CDs and physical piracy examples in the marketplace of people buying music, films, games or software that is just on a disk and there is no trademark infringement, that copyright law cannot be enforced and, when there are no other infringements, Trading Standards cannot actually enforce copyright just because of a technicality, it seems utter madness. Q109 Mr Hall: If I can ask a slightly different question, if we, say, extend the life of copyright to 70 years or 95 years, we have had an explanation given to the Committee about who the losers would be because they would be the people who reproduce the music and sell it, and the gainers would not be the consumers because the price of the product is still the same, but the gainers are the original artists who recorded the material or whatever, but how much is that gain and what does it actually mean in pounds, shillings and pence? Mr Ferguson: You cannot actually quantify it like that, and this always seems to be entirely about music and I am not sure if it should be. I think it should be more of an abstract approach to this, but, all right, we are talking about it in the context of sound recording. By and large, people who have managed to have a career in music, and my own income is based on the fact that over the period that I have worked I have built up a collection of rights, of copyright works that are mine, and they are all out there and they are all earning some money for me and every time one of my works is used on a television station or a radio station, I get an increasingly small amount of money for it because again of broadcasting sort of splitting up. Therefore, what you end up with at the end of a career is a sort of aggregation of your work which, at the beginning of your career, probably paid you a reasonably good amount of money on the one piece if it was a hit or a success or whatever, but, by the end of your career, it is the totality of that work that is still earning not vast sums of money, and very, very, very few successful bands and pop acts that you can think of end up managing to have a lifetime career of it. You will endlessly see that so-and-so of The Tremeloes is now a tiler or a plumber or a whatever ---- Q110 Mr Hall: What is Brian Poole doing then? Mr Ferguson: I have absolutely no idea, but what I do know is that people who are mates of mine who were in bands like Blancmange who were very successful in the 1980s, one of them is a schoolteacher. There is not a lifetime career in a lot of this for a lot of people. He gets a very small amount of money on his residuals on stuff that was a big, successful, multi-national act in the early 1980s. That is the way it works. Q111 Rosemary McKenna: That is the problem, is it not, as you see it, that we should not really just be concentrating solely on the music industry, but it is across the board? You have one or two very high-profile people who are hugely successful and behind them you have thousands of others who are working away, but the consumer sees the front person. That is the problem that all the creative industries have and basically it is the most important part of the culture of our country, all the creative industries, whether it is the performing arts or the visual arts, and somehow or other that message has got to be got across to the public in general. I think last week we heard that at one point you had used Robbie Williams as the person to promote performing rights and to stop downloading and then, all of a sudden, you realised, "Wait a minute. Robbie Williams is a very successful young man, thank you very much", and that was not a very good idea. Have you come up with any other ideas? I do agree with what was said earlier on about education and I think it should be part of enterprise education which is going on in schools at the moment, but is there anything else, apart from legislation or reorganising government departments because I do not think that is going to happen, that you think that we or business could do to help in that task? Mr McGonigal: I actually think we should be celebrating our successes rather than criticising somebody for earning too much money. I think we should be celebrating ---- Q112 Rosemary McKenna: I was not doing that. What I was saying is that is what people see. Mr McGonigal: I know, and I think actually that is where you could all help as opinion-formers, as people that others listen to. Q113 Chairman: I seem to recall that Robbie Williams did not actually help this argument particularly and he said, "Stuff copyright!" or he may have put it in even stronger terms than that! Ms Cave: The point is about focusing on the extremely famous representatives in each of the creative sectors, but they are of course in the minority and I think the more significant message certainly for art students coming up through art school is that being famous and extremely successful is a possibility, though a slim one, but there is a whole host of other careers that you can enjoy through your creativity that are not necessarily that and you have to understand how your rights work in order to pursue those careers, commercial illustrators, photographers, et cetera, and there are myriad examples which do not necessarily lead you into a fame-and-fortune-type role, but they certainly do provide you with a living. I think that does come back to the education point. When I was at art school there was no professional practice module, but there certainly is one now and we experience, just like British Music Rights, a very similar reaction from art educators in colleges and universities who are crying out for information on how their students can use their rights to earn them a living not necessarily in the high-profile, famous way, but in a very useful and meaningful way, working for newspapers, publishers, freelance, whatever, so there is certainly some work that could be done there and very valuable, I think. Ms Carey: I would totally endorse that. From the Alliance point of view, I would say that we are looking at doing a bit more research into understanding consumer activity and motivations and behaviour in which some industry sectors have already invested quite heavily because I do recognise the fact that there is a lot of misunderstanding and, as has been discussed earlier, people seem to think that the digital copyright is free, but clearly there are a lot of costs. I think that, as people are going through school, they need to understand that. I think that a lot of people do aspire to being innovators or creators in some way and they need to be encouraged. Whether it is in copyright or trademark areas, do not let us forget that Britain is also quite successful in some other areas of design and manufacturing where, even if we do not manufacture or physically produce the goods, if we do not own the IP, we will not retain the income from those inventions, those creations which end up being physical consumer goods, branded manufactured goods. IP protection needs to extend to those areas as well and they also fall foul in many instances of infringements online, that new technologies enable IP theft to take place also in that sphere and it is not just about copyright. I think that we must not forget, in our look at new technologies and new challenges for the British economy, that, where we are talking about copyright industries, we are also talking about other types of international property rights which new technology helps and also threatens. Certainly education right across the board on intellectual property issues, it would be extremely valuable to help people understand the whole mechanism and the whole business of how you get your goods or your ideas to market because money does need to be invested. I think this is what some copyright infringers just fail to understand or recognise, that there is money that has to be spent in promoting a product, in bringing something to market. By saying that stuff could flow more easily or that consumers would benefit more if industry was not involved if somehow new technology or the Internet allowed them free access, it fails to recognise the fact that people would not know about new bands or would not know about new films or other creative works if money was not invested in them to promote them, to make them available not just in a physical way, but also in a way that people actually get to hear about them so that they can decide whether they want to go to the cinema or do that thing, whatever it is, that then produces some income that goes back to the creator and the producer, so I think this has to be seen in a holistic way and the core of that is our existing IP regime. Mr Ferguson: Also I think some reinforcement of moral rights also has a serious role to play in this. Most of the consumers' dislike of copyright is based on what they see as being poor practice from big record companies, big film distributors, whatever. There are two things with moral rights: (a) you put the creator in a stronger bargaining position vis-à-vis the big aggregating businesses; and (b) you identify more closely the author with the consumer, so the chain of value that is created by the author to the consumer is more identifiable. Q114 Chairman: We are coming to the end, though there are a couple more issues that we need to cover and, before we do, it is only fair that I say to Dominic that we have heard that collecting societies are going to be more and more important, but we have also been told that you are monopolistic, you are exploitative and you are anti-democratic, so how do you respond to that? Mr McGonigal: Thank you very much! I think the first point, right, yes, I think the collecting societies will play a more important role going forward. It is a very efficient licensing system. We have about a quarter of a million venues around the country, hairdressers, shops, nightclubs, pubs, all playing music, all paying a licence fee and all that money going to the artists and the record companies, so it is a very efficient licensing mechanism within this sort of copyright and creative industries regime. I think what you have to remember about us is that we are a business working for artists and record companies. We are a monopoly because people want us to be a monopoly. The record companies want one place to go to, the artists want one place to go to to get their rights licensed, and the users also want one place to go to to get their licence, so that is why we are a monopoly. There is nothing malevolent about it; it is a natural monopoly. In fact, we have done some economic work on this that shows the benefits, the economic benefits in terms of efficiencies. In terms of the representation, we are working for very broad constituencies; we are working for major record companies, for independent record companies¸ and we have about 3,500 to 4,000 record companies, and we are working for artists, session musicians, featured artists, et cetera, right across the board, currently about 30,000 directly and then others through our bilateral agreements. We have just recently had some very good news from the OFT, the Office of Fair Trading, because, after about five years of work with the performers, we are actually restructuring PPL to bring performers into the heart of the organisation as a part of the Board structure and obviously involved in distribution, finance and all those critical functions, so performers, session musicians sitting alongside featured artists, alongside independent record companies and major record companies. The OFT gave us a clean bill of health on that merger proposal because of the amount of work that has gone into it and because of the broad support that we have for that from the performing community and indeed from the record companies. Ms Cave: DACS is also a collecting society and, for the record, we are democratically governed. We have a balance of artists and independent directors on our Board. We are owned by the artists that we represent and we work on a not-for-profit basis, but I would like to say that we are very supportive of the idea of more regulation of collecting societies going forward so that standards are set and the increased demand for transparency and so on is universally met, and we would welcome that. Mr Ferguson: We would again broadly support that, but we would also point out to you conceivably at the moment that Brussels is getting heavily involved in our collecting societies. If you ever wanted to see people who do not understand collecting societies, have a look at what is going on in Brussels. Q115 Chairman: I think that applies beyond the collecting societies! Mr Ferguson: Well, you did not ask me to expand on that particular one, but they are very alarming, extremely alarming, because they do not get it and it would be of enormous help if people here who do understand how collecting societies work were able to speak up for the collecting societies. Q116 Adam Price: We heard the MMF this morning supporting the idea of the levies as a means of compensating creators, and the witnesses in our first session supported levies. I do not know about biscuit tins, but, on digital devices and platforms, do you think this is a good idea? Ms Cave: It certainly could help deal with the strange situation that we have in the UK where private copying is illegal, yet there is no enforcement of that, so I think the big issue is that the consumer public are very confused about what they are, and are not, allowed to do. Certainly levies might help address that problem by legalising a range of private copying, generating a modest royalty back for the individual creator, and it would not have a huge impact on consumers because the sums paid, the charges on machines are very low. However, I should say that we do not think it resolves the bigger problems. It does not create some kind of universal licensing regime, but it probably just tackles that private copying issue. Mr McGonigal: I think if you had asked us ten years ago, absolutely, and 15 years ago in fact the music industry was asking for levies because we could see no other way of getting any income from those uses. I think now the opinions are more divided. There are quite a few in the industry who actually can see their way through to DRM and technological solutions and new business models which will actually provide licensing solutions. I think we are very much at a mid-point at the moment. Most of us have only had an iPod for a year or two, so what does a private consumer actually want to do in their house. I think that, if you wrote a law now that set it in stone, it would be different in five years' time. We are in a process of evolution where actually understanding what individual consumers are doing, what they want to pay for and what they do not want to pay for is actually becoming clearer. I know that the record companies with the BPI are doing a lot of work on this right at the moment, so I think we will see the industry's views in terms of very basic terms and conditions perhaps, labelling or whatever, that will start to resolve this. Mr Ferguson: We recognise the complexity of this issue and we also are fairly sure that no government is going to be so daft as to introduce a levy which would be perceived as a tax. That does not mean that the issue should not be looked at in some way quite seriously because we think it is relatively likely that, for instance, blank tape or blank CD, whatever it is, levies will be technologically redundant within ten years anyway. Nobody will be copying because that will not be the way that you consume. The consumer pattern will be completely different in the sense that you will probably just download whatever your choice of the day is, and you will subscribe to libraries in effect in this context. The group that we really would like to see the Government think about exercising a levy on are the people who actually are dependent on our creativity to sell their wares, but pay nothing for it and this is the Internet service providers and the big telcos. We would also most clearly like to see you intervene forcefully in stopping lock-out deals between one large corporation and a telco to the exclusion of other creators. Again this is sort of scandalous, it is anti-competitive and it is of no advantage to the consumer if O2 do a deal with Sony BMG and nobody else or however those things work, so I think those are much more important issues than levies. Ms Carey: The Alliance Against IP Theft does not really have a position on this because it is more to do with business models, I think. We do not have a consensus. Some argue in favour of flexibility to create the types of new licensing arrangements that will reward people for private use unauthorised, but is it unauthorised or not? If it is not enforced, it is very hard, but there are other areas of industry who say that a levy is a tax and, if everybody pays it, then they think they have the automatic right to take a copy, whereas with DRMS hopefully, if they are robust, they can allow the creator to decide how many or to what extent anything is copied. We see these already in operation with new online services that are now available with music and film, but they are not completely infallible. I think it is up to industry to have the freedom to find the solutions that work for business and for consumers. After all, it is in the interests of creators to make their works as widely available as possible to consumers and that is what they are in business for and it is about having the confidence in whatever system the industry manages to come up with, that it is flexible, that it is accessible, and that it can be protected. I think that is the main point from the Alliance standpoint, that it has to be enforceable and enforced. Q117 Chairman: PPL and the CRA, I believe you have both expressed some concern about the BBC's reliance on the creative archive. Do you just very quickly want to tell us why you are worried about that? Mr Ferguson: I do actually attend the BBC-run Creative Archive Group. Once again, it is a licence that is not even on the Creative Commons' licence. Creative Commons is fine if you want to distribute academic work where you have already been paid for it, but it is not fine in virtually any other arena; it does not work. What I hope is going to happen here both with Creative Commons and with the creative archive is that my parent organisation, as it were, the British Academy of Composers and Songwriters, is going to be launching a licence itself later this year which will be called the 'fair play licence' and the fair play licence will do all the things that is intended as the good of true Creative Commons, ie, specifically allow people to share work, but also will not break the copyright or enable the creator to hang on to the copyright in the first place so that it can be reused in other contexts. We would sincerely hope that both Creative Commons and the Creative Archive Licensing Group would have a look at this new model and recognise that, for certain types of work, this is actually a more effective licence than the one they are trying to use. Mr McGonigal: I think the creative archive is actually mixing two completely different things. On one side, they are talking about releasing the archive of the BBC, fantastic, make that available, we do not have a problem with that, but, on the other hand, they are encouraging creativity, fantastic, again we do not have a problem with that, whether it is collaborative or individual, but they are mixing the two. They are implying that the cut and paste of something from a natural history programme into your homework is the same as creating a new work, but they are two different things and I think that is where the creative archive has got muddled and we have been urging for a little bit more clarity as to exactly what it is trying to achieve, and I would certainly urge that. Chairman: There are no more questions, so thank you very much indeed. |