House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by the Authors' Licensing and Collecting Society Ltd

PROTECTING AND PROMTING AUTHORS' RIGHTS

The Authors' Licensing and Collecting Society Limited ("ALCS") is the UK rights management society for writers of all genres of literacy and dramatic copyright works including fiction, journalism, plays, poetry, academic texts, TV and radio scripts and story-lines, dramatisations, translations, abridgements and adaptations.

Established in 1977 and wholly owned by its writer members (of whom there are currently 52,000), ALCS is a not-for-profit, non-union organisation. The Society's governing body, the Board of Directors, is composed of elected Ordinary writer members, and writers nominated by its two Corporate members, the Society of Authors and the Writers' Guild of Great Britain. Since its foundation, ALCS has paid writers over £100 million in fees and today it continues to identify and develop new sources of income for writers. To provide further information about ALCS, we enclose a copy of our Strategic Plan and Annual Report for 2005-06. Additional information is available on our website at www.alcs.co.uk.

ALCS is grateful for the opportunity to contribute to this inquiry and would be pleased to provide further information or assistance to the Committee as required.

We have responded to the parts of the questionnaire that we feel have a direct bearing on the interests of our members, and writers generally.

THE IMPACT UPON CREATIVE INDUSTRIES OF RECENT AND FUTURE DEVELOPMENTS IN DIGITAL CONVERGENCE AND MEDIA TECHNOLOGY

1. New technology generally presents both opportunities and threats for writers. The ALCS Strategic Plan briefly analyses these as follows:

— much wider and faster national and international promotion of, and access to, their works;

— opportunities for simple copyright and moral rights messages to be placed in front of every potential reader/user;

— rapid, secure electronic payment systems; and

— the capture and storage of usage and rights ownership data to allow royalty payments through individual or collective licensing schemes, by means of use of Digital Rights Management (DRM) technology both to track transactional use and to record writers' rights;

— the possibility that readers/users may have little or no understanding either of copyright or moral rights; and

— widespread and uncontrollable infringement or abuse of copyright or moral rights, incapable of control except by restrictive rights management technology in the hands of a few global conglomerates.

2. Digital technology offers users far greater choice in terms of the way in which they access and interact with creative content. From a writer's perspective, the same technology provides an incentive to create, by providing the means to entertain, educate and inform new readers and explore new markets. If current and future advances in new media technology are to deliver both of these objectives—as it should—then a balance must be struck between the provision of access to content and the observance and understanding of the following basic principles:

(i) the recognition of the rights—both economic and moral—in the underlying content; and

(ii) the need for the development of an appropriate and equable infrastructure to ensure that the on-line use of creative content may be audited and, where the creator so chooses, remunerated.

This delicate balance was neatly summarised in the recent EC staff working paper on the issue of the creation of digital libraries:[12]

"Solutions have to be found that respect the legitimate interest of creators, while enabling full use of the potential of the new technologies."

3. To ensure that the creative industries sustain and exceed the contribution made to the UK economy (8.2% GVA, DCMS 2003) in a technologically converged marketplace, we suggest that effective initiatives that bring together the various industry stakeholders are vital. The cross-departmental Creative Industries IP Forum, demonstrated the value of such partnerships and we welcome the government commitment to pursue the recommendations of the Forum. We also welcome the inclusion and representation of "cultural institutions" within the DCMS Creative Economy Programme initiative.

We are similarly encouraged by the recent DCMS open consultation on the EC i2010: digital libraries programme—and the resulting UK response published in January—as a positive example of the value of open and broad consultation processes, in the development of policy and strategy.

4. In brief, we suggest that it is vital to the long-term sustainability of the considerable contribution of the Creative Industries to UK GDP to give equal recognition (in terms of legal and social policy) to the three key stakeholders groups:

(i) creators;

(ii) content producers/providers; and

(iii) users.

The importance of the role played by the initial creative input in driving subsequent commercial initiatives was clearly identified in the Treasury-commissioned Cox Review of 2005:

Policy makers need to ensure that the opportunity to benefit from new technology flows along this chain; robust, credible and fair frameworks for licensing and remuneration are central to this aim (expanded further under subsequent headings).

5. Although digital convergence produces mixed-media products which potentially comprise multi-rights issues, this should not be seen as a bar to effective licensing solutions. The European cable retransmission model shows how users and broad-based rightsholder groups can deliver workable schemes to commercial users. Looking at a specific UK example, the Educational Recording Agency (ERA) scheme provides a similar "multi-repertoire" rights clearance to educational establishments. The tables annexed to this response provides a simple breakdown of the fees received by writers from this and other "secondary use" sources, administered by ALCS, during the past 10 years.

6. As this section deals with "...recent and future developments...", it is worth noting the lessons that the creative industries may be able to learn from recent experiences. During 2005 the Google Book Search Library Project was launched with accompanying positive public messages regarding the need to use new technology to provide information/access to content. The internal reality—discord, disarray, lawsuits—clearly demonstrates that "an act now, ask later" approach is not supportable, and will ultimately damage the public perception of both rightsholders and providers. We stress again the value of communication and collaboration and suggest that the DTI, DCMS, and DFES all have a role to play in ensuring that the UK achieves the balances enshrined in EC copyright law,

THE EFFECTS UPON THE VARIOUS CREATIVE INDUSTRIES OF UNAUTHORISED REPRODUCTION AND DISSEMINATION OF CREATIVE CONTENT, PARTICULARLY USING NEW TECHNOLOGY; AND WHAT STEPS CAN OR SHOULD BE TAKEN—USING NEW TECHNOLOGY, STATUTORY PROTECTION OR OTHER MEANS—TO PROTECT CREATORS

Effects

1. The most obvious and well-publicised effect of unauthorised reproduction and dissemination on all areas of the industry is financial. Following the experiences of the music sector, TV and film piracy is increasing at an alarming rate, within the UK. The Federation Against Copyright Theft (FACT) report a 133% increase in domestically produced illegal copies of DVDs during 2004-05, with the result that three out of every 10 videos/DVDs currently sold in the UK are illegal copies.

Aside from the impact on the market for the sale of "physical copies" the emergence of p2p file-sharing networks continues to take revenue away from the industry. The British Video Association noted a three-fold increase in illegal downloads of film/TV works in 2003-04, leading to an overall loss to the DVD sales of market of £45 million. These losses not only affect the future of creative and economic investment but also the breadth and quality of content that is ultimately offered to consumers.

2. The economic rights associated with and underpinning creative activity are prominent in debates of this nature, and rightly so. Less "airtime" is given to the moral rights afforded to creators, by law, to protect the integrity of their works and their personal and professional reputations. Although technology should be a driver of creativity, it should not be seen as a substitute for original thought or endeavour. The Qualifications and Curriculum Authority 2005 Report warned that, "The availability of the internet is a powerful aid to learning but carries a new generation of risks of plagiarism."[15] Quite apart from the legal and moral implications, it is clearly not in the interests of society at large to produce "a cut and paste generation" that does not understand the difference between the free flow of information and the flow of free information.

3. A culture of unrestricted copying and sharing of materials also has clear potential to damage the hard-earned legitimate usage structures that are currently in place. The knock-on effect in compliant sectors benefiting from well-established voluntary/statutory schemes may be the perception that licences are overpriced or legally superfluous.

4. A similar knock-on effect may be seen in the libraries sector where a culture of "lending" between individuals on-line, facilitated by p2p sites, may diminish the role and value of public libraries—described by Culture Minister David Lammy in a speech to the ALCS 2005 AGM as "vital civic, cultural spaces"—to the detriment of both users and creators.

Steps

1. Support for the principle of fair pay for fair use. We wholeheartedly support the views expressed by Lord Sainsbury, speaking at the Creative Economy Conference held in October 2005, as part of the UK EU Presidency. "If consumers are given a legitimate and attractive alternative to pirated products, they will buy them. Offering consumers compelling new content in innovative ways, simple for the consumer to use and at a fair price must be the way forward for all the creative industries."

2. Education & Awareness. Support—both political and financial—is required to sustain initiatives such as the recent Industry Trust for IP Awareness National Consumer Awareness Campaign. The key message: piracy is not a victimless crime must be emphasised. While recent research[16] suggests that consumers continue to make the connection between piracy and

(a) local/organised crime; and

(b) loss in revenue such as taxation, there is little evidence to suggest that consequent losses to creators with low economic status or indeed, loss of future creativity itself, is seen as significant.

This is clearly an area requiring further attention at a policy level. We are encouraged by the 3-step action plan set out in the government response to the CI IP Forum Education & Communication Working Group report, and agree with the inclusion of creators themselves as part of the groups for whom assistance in appreciating the value of IP may be of value. Faced with new models for the distribution of their works on-line—such as the fee-free options offered by the Creative Commons licensing schema—individual creators need to be made aware of the full life cycle value (present and future) of the works they produce.

On a practical level, if technology is to be used to grant access to users, then the same technology must also be employed, at the point of contact, to deliver educational and rights awareness material to those users. This is particularly important in the context of young people who have grown up with the ubiquity of technological access, but may have missed out on the opportunity to appreciate the role played by IP rights in sustaining the individual creator who produces the music, books, films and video games etc that they enjoy.

These messages do not need to be presented as formulaic (or overtly threatening) legal notices. The combination of technology and creativity should offer the opportunity to use imaginative and interactive means of delivering rights awareness messages—and not just to youthful audiences.

3. Enforcement (general). The adoption of harmonising European legislation in this area demonstrates an overall understanding of the need to protect both the commercial and the cultural value of the creative industries:

Again, the government response to the work of the IP Forum is encouraging, both in terms of supporting overarching initiatives under the Patent Office's National IP Crime Strategy, as well as providing practical solutions to encourage and sustain enforcement activity at the grass roots level.

4. Enforcement (new media). Regarding the specific issue of policing on-line infringements, we suggest that the raft of measures introduced into Part VII of the Copyright Designs and Patents Act (1988), on implementation of the EC Copyright Directive provide a comprehensive set of measures. The challenge now for policy-makers is to ensure that, particularly in cases of the most serious commercial infringements, the available civil and criminal sanctions are vigorously (and visibly) applied.

5. A fair, legal balance. The 2005 Labour Party Manifesto stated, "We will modernise copyright and other forms of protection of intellectual property rights so that they are appropriate for the digital age. We will use our presidency of the EU to look at how to ensure content creators can protect their innovations in a digital age...". It seems that this work will now form part of the analysis carried out by the Gowers Review in the context of the reasonableness of "provisions for `fair use' by citizens."

As technology permits widespread copying (and dissemination) of copyright works, the question for policy-makers is how to balance this activity with the legitimate interest of the underlying creator to receive adequate reward and recognition for these uses. In many jurisdictions (although notably not the UK) private copying levies have sought to address this issue—with extension to digital copying media the subject of considerable current debate, not least in France and Germany. The continued appropriateness of such schemes in a digital use environment is currently under review as part of the EC review of the "Copyright Acqis". In considering the future of private copying levies it is worth noting that UK writers have, over the past four years, received some £3.5 million in fees from schemes in France, Germany, Spain and the Netherlands. Had they been citizens of those four countries, that amount would have be from 10-100 times as great—a significant contribution to the writers' ability to continue to create.

Further debate surrounds the role played by commercial intermediaries enabling the copying (and, in some cases, sharing) of copyright works. 2005 saw judicial recognition of the role played by commercial providers of file-sharing software in enabling user infringements, in the Grokster (US) and Kazaa (Australia) cases. An equivalent UK decision has yet to be tested.

It is often suggested that DRM systems will, in time, provide solutions to these issues of audit and remuneration for usage. While this may ultimately prove to be the case it is clear—not least from the 2004 Report of the EC High-Level Group on DRMs—that universally acceptable (and interoperable) systems are still some way off. The current position requiring an individual creator to police file-sharing websites, and then undertake the costly and sometimes complex process of securing the removal of infringing material reflects an inequity in the current balance between creator and user.

This position seems to fall short of the model envisaged by the EC when framing the provision of the Copyright Directive,

We therefore submit that, if the role played by creators in contributing to the commercial success of the creative industries is to be sustained, the issue of providing to them fair, legally sanctioned remuneration for the use of works should form a significant part of any analysis of the present legal framework.

6. DRM/TPM/RMI

When promoting further research into the use of technology as a means of providing fair balance solutions between creators and users, it is vital that the public message is clear. The term "DRM" should, in the interests of clarity, be broken down into its constituent parts:

(a) technological protection measures (TPM); and

(b) rights management information (RMI)—before analysing the potential for the protection of creators and their works.

The debate regarding the use and application of TPM systems tends to focus on issues of access and, by extension, the perception that certain commercially empowered rightsholders will use technology to "lock-down" content to the detriment of users. Arguably such a debate is an inevitable part of the process by which society adopts and adapts to new technologies. There is however a real threat to creativity and future economic and cultural diversity, if the creator is squeezed out of the debate between information producers and users regarding the use of TPMs and their role in the provision of access.

On a more practical level, the development (and legal protection) of RMI systems has the potential to play a key part in delivering the kind of detailed usage meta data that will underpin fair remuneration schemes for creators in a digital-use environment. For example the ISTC (International Standard Text Code)—currently being developed under the auspices of the International Standards Organisation (ISO)—aims to provide greater granularity in the identification of textual works, and will be of value to organisations like ALCS in dealing with the flexibility inherent in digital copying and dissemination of works.

THE EXTENT TO WHICH A REGULATORY ENVIRONMENT SHOULD BE APPLIED TO CREATIVE CONTENT ACCESSED USING NON-TRADITIONAL MEDIA PLATFORMS

1. Regulation of access can take various forms—legal, technological/a combination—but the overriding criterion is proportionality: no perceived "locking-down" of content, rather access granted based on fair terms. If the correct balance is struck, the evidence suggest that—unauthorised use diminishes: in January 2006 the IFPI reported that, for the first time, the number people choosing to download music legally in the UK had overtaken those obtaining songs through illegal file-sharing services (5% : 4%).[19]

2. Proportionate and appropriate regulatory solutions will emerge from discussion/negotiation between rightsholders and user groups. The well-established UK environment for the collective licensing of printed works, under the Copyright Licensing Agency (CLA) scheme, ably demonstrates the value of such discussions. Under the CLA scheme, users are able to copy (by means of reprography and digital scanning) a vast repertoire of works, based on a single point of contact with a licence provider. A working relationship between the creators of literary and artistic content on the one hand, and the publishers of the works incorporating this content on the other, is essential in providing this facility to users. These relationships—and the formal, legal agreements underpinning them—are the product of many years of working together to understand and appreciate the issues surrounding the rights and rightsholders within each group. Similarly the relationships between the rightsholders and various licensed sectors, reflect many years of working together to achieve usage terms and tariffs that are acceptable to both groups. We therefore submit that, in the context of the present discussion, serious consideration must be given to the value offered by established rightsholder joint ventures, in identifying solutions to permit legitimate digital copying and delivery of works to users.

3. A "light-touch" regulatory environment to suit "non-traditional" media platforms should, of necessity, deploy the same platforms to provide access to licences. For example:

(a) offering point-of-contact licensing;

(b) applying rights management information/standard Identifiers to permit the making of supportable micro-payments;

(c) collaborating with government/other partners to ensure that education/awareness rights messages are embedded within the overall function; and

(d) improving accuracy in the distribution of remuneration fees—to give both users and rightsholders confidence in the overall process.

4. With a view to extending and adapting current licensing frameworks for a the digital-use market, recent EC regulatory measures for collective rights management bodies[20] have aimed to sharpen their competitive edge—focusing on issues such equitable distribution/deductions, non-discrimination, accountability and transparency.

5. As discussed above, the statutory framework must also support the provision of licensing schemes as part of a regulatory environment. If loopholes permit use—who needs/wants a voluntary licence?

WHERE THE BALANCE SHOULD LIE BETWEEN THE RIGHTS OF CREATORS AND THE EXPECTATIONS OF CONSUMERS IN THE CONTEXT OF THE BBC'S CREATIVE ARCHIVE AND OTHER DEVELOPMENTS

1. We submit that the correct balance lies between the legitimate interests of creators—reward for their economic rights, respect for their moral rights—and effectively harnessing new technologies in the provision of content to users. In finding this balance policy-makers need to ensure that the opportunity to benefit from new technology is enjoyed by both groups through, for example, the provision of robust, credible, usable and, most importantly, fair frameworks for licensing and remuneration.

2. It should be emphasized that the right to interact with cultural works and the rights protecting those works can and should co-exist. Indeed this essential interrelationship between robust IP rules and the creation and use of content, was recently enshrined in points 16 and 17 of the Preamble to the UNESCO Convention on the protection and promotion of the diversity of cultural expressions (2005):

Emphasizing the vital role of cultural interaction and creativity, which nurture and renew cultural expressions and enhance the role played by those involved in the development of culture for the progress of society at large.

Recognizing the importance of intellectual property rights in sustaining those involved in cultural creativity.

3. The Creative Archive, by design, blurs the traditional distinction between creators and consumers; while all creators are also users, the CA aspires to turn users into creators. Do those creating new works under the terms of the CA not want/expect the chance to protect the rights in their new creations?

4. The overall balance will be better maintained—if and when the pilot scheme extends to material not wholly owned by the BBC—to the extent that the CA providers are able to address the possible public misconception that BBC CA content is all "publicly owned" material. Clearly the BBC may choose to make certain content freely available as part of its Public Service remit, but "non-BBC" content will require a licensing solution. On a practical note, it seems that the CA user point-of-contact provides a useful opportunity to ensure that rights awareness messages are communicated and ALCS, through the Creators' Rights Alliance, has lobbied the CALG on this point.

5. There is a danger that promotion of creativity and creative usage further undermines the already weak UK statutory provisions on author's moral rights. It is vital, in a digital-use environment, such as the CA, where an individual's work may be readily shared, manipulated, republished or adapted, that this further level of legal protection for an author's name and reputation is maintained and respected.

6. It is worth noting that, in addition to addressing the balance between the expectations of creator and consumers in projects of this nature, the pivotal role played by the intermediary provider should not be overlooked. The recent problems surrounding the Google Library Project demonstrate the kind of negative public perceptions (of both creators and providers) that arise from poor communication and consultation processes.

12 SEC(2005) 1194, Annex to the: Communication to the Commission "i2010: Digital Libraries". Back

13 The Cox Review of Creativity in Business: building on the UK's strengths, September 2005. Back

14 Recital 22, Directive 2001/29/EC. Back

15 A review of GCE and GCSE coursework arrangements, QCA (2005). Back

16 Fake Nation, Intellectual Property Theft and Organised Crime Project, 2005. Back

17 Recital 3, Directive 2004/48/EC. Back

18 Recital 31, 2001/29/EC. Back

19 International Federation for the Phonographic Industries, Digital Music Report 2006. Back

20 Commission Recommendation on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC). Back