Memorandum submitted by British Equity
Collecting Society
1. British Equity Collecting Society (BECS)
is the UK's only collective management organisation for audiovisual
performers. It represents the interests of its members—approximately
20,000 actors and other performers—in the negotiation and
administration of performers' remuneration throughout the European
Union territories. Rights administered via agreements with 11
European collecting societies include the rental, private copying,
cable retransmission and communication to the public rights. Since
its incorporation in 1998 BECS has generated in excess of £7
million in extra income for performances in British film and television
productions. BECS is a member of AEPO-ARTIS, an association representing
virtually every audio and audiovisual collective management organisation
in Europe.
2. BECS believes that developments in new
media and the creative industries raise important issues regarding
private copying, digital rights management technologies, collectively
managed rights and the term of protection for copyright. It therefore
intends to comment on these issues and the role of collective
management organisations as an efficient and effective means of
ensuring remuneration for creators for the rapidly changing exploitation
of creative content.
A. DEVELOPMENTS
IN DIGITAL
CONVERGENCE AND
MEDIA TECHNOLOGY
Implications of PVR technology on private copying
3. Historically, British broadcasting has
been characterised by two markets: a primary/ first transmission
market, and a secondary/repeat market. In terms of performers'
remuneration the distinction is significant as an important source
of revenue is derived from the exploitation of performers' work
in the secondary market.
4. However, the rise in the use of personal
video recorders (such as Sky+ and TiVo), which are transforming
the way in which television viewers record material for their
private use, risks devaluing the secondary television market.
The ability to record and store a vast volume of programmes will
inevitably reduce the value of the secondary market. Performers
and other creators, including independent producers[26],
therefore risk financial loss as a result of new technology that
enables the unfettered private copying of audio-visual material.
5. There is also evidence that PVRs are
growing in popularity to the detriment of other ancillary markets.
Recent research shows that 19% of those who own a PVR do not feel
that they require on-demand services[27].
Therefore, in addition to adversely affecting the secondary television
market, PVRs also threaten to hinder the development of other
legitimate services.
6. BECS believes that PVR technology throws
current legislative arrangements on private copying in the UK
into question. The ability to store high-quality recorded material
indefinitely and for unlimited re-use seriously challenges the
current exemption on private copying for the purposes of "time-shifting".
7. It is arguable that the creation of permanent
and private audiovisual libraries, made possible by PVR technology,
is a breach of current copyright legislation. Private recording
in this manner far exceeds the intended remit of the prevailing
legal arrangements, which only permit copying for "time-shifting"
purposes ie recording material to view at a more convenient time[28].
BECS therefore believes that British copyright legislation requires
revision in light of previously unforeseen technological advances.
8. BECS urges the Committee to examine arrangements
for legal private copying in other European countries. The UK
is one of only three EU member states that do not have a levy
on blank recording devices and/or equipment[29].
This has created the anomalous situation whereby BECS is able
to collect private copying revenue for British performers from
most European countries but not at home. The lack of harmonisation
also denies reciprocity with foreign collecting societies: other
European performers are not entitled to compensation for the private
copying of their work when it is shown on British television channels.
9. In spite of manufacturers' dislike of
private copying levies, the experience of most EU countries is
that modest levy systems applied to recordable media (blank tapes,
CDs, DVDs, memory cards) and equipment (VCRs, PVRs, computer hardware,
download devices like i-Pods and games consoles) provide a manageable,
efficient and fair solution for dealing with the reality of private
copying. Admittedly the variation in private copying tariffs across
EU member states is problematic, although objections to levies
could be much allayed with tariff harmonisation. At this moment
in time, however, no other solution is capable of satisfying both
consumer demand for legitimate private copying, and the creators'
right to fair compensation for the ancillary use of their material.
10. British law on private copying is vague
and frequently contravened with impunity. The vast majority of
consumers are unaware that it is theoretically illegal to "format
shift" eg transfer their CDs onto other formats like i-Pods
and MP3 players. However, new technology actively encourages format
shifting which is consequently a commonly accepted and widespread
practice. Moreover, the concept of "time shifting" was
conceived at a time when the long-term retention of high quality
recorded material was unenvisageable. Yet material downloaded
from PVRs or the Internet onto DVDs effectively represents perfect
copies of copyright material for life. What constitutes legitimate
private copying is therefore less than clear-cut, public understanding
is confused, and the legal definition of private copying is no
longer valid in light of technological developments.
11. BECS therefore advocates a broader exemption
to the reproduction right in the Copyright, Designs and Patents
Act, coupled with a private copying compensation system for rights-holders.
This is necessary to bring the UK into line with most other EU
states and strike an acceptable balance between the rights of
consumers and those of British and European creators in the digital
and online environment.
12. In connection with this last point,
BECS urges the Committee to examine the government's interpretation
of the Information Society Directive as it relates to compensation
for exemptions to private copying.
Digital Rights Management (DRM) Systems
13. BECS recognises the potential benefits
to be derived from the development of DRM technologies. We particularly
welcome systems that incorporate Rights Management Information
(RMI) mechanisms such as watermarking and fingerprinting, which
will facilitate online rights management. A major difficulty for
rights-holders is determining where and when their work has been
used and RMI has the potential to overcome this problem.
14. However, we do not agree with the argument
that DRM technology negates the need for traditional private copying
levies. Firstly, DRM systems are not technically foolproof and
can be cracked relatively easily by professional pirates. Secondly,
they are incapable of distinguishing between fair use and unauthorised
copying which has induced legal actions in other European countries.
Lastly and most importantly, the use of DRM systems as a legal
alternative to pirated content does not guarantee any flow of
revenue to performers.
15. Contrary to public opinion British performers
only very recently negotiated an agreement to receive revenue
for the exploitation of feature films. It is little known that
the British actors who appeared in classic films like the "The
Great Escape" and "The Ladykillers",
which continue to be shown repeatedly around the world and sold
in video and DVD formats, received no secondary payments for the
use of their performances. The only secondary payments for these
films are those that BECS has recently started to collect due
to the existence of statutory performers' rights legislation in
other European Union countries.
Term of protection of copyright
16. Within the context of the European Commission's
current review of the term of copyright, BECS urges the Committee
to support an extension to the length of protection for performers.
We would ask the Committee to endorse bringing protection for
performers into line with that afforded to works made for hire
in the USA ie 95 years. Such a revision is required to reflect
the increased life expectancy of audio-visual works made possible
by digital technologies.
B. UNAUTHORISED
REPRODUCTION AND
DISSEMINATION OF
CREATIVE CONTENT
AND THE
PROTECTION OF
CREATORS
17. BECS advocates licensing not litigation
as the solution to illegal audio and audio-visual Services and
file-sharing.
C. BALANCING
THE RIGHTS
OF CREATORS
AND EXPECTATIONS
OF CONSUMERS
(BBC'S CREATIVE
ARCHIVE AND
OTHER DEVELOPMENTS)
18. BECS is involved in the administration
of collective licences to cover the use of performances in the
BBC's current "TV Plus" trials. Collective licences
used in this responsible and efficient way are enabling the BBC
to test alternative content delivery platforms, such as video-on-demand
and broadband, without financially prejudicing performers. The
collective licence is negotiated at a level to balance the needs
of the broadcaster to explore new technological developments whilst
ensuring modest remuneration for creators. Given good will on
all sides appropriate licensing mechanisms within the existing
legal and contractual framework are available to enable access
to so-called archive material.
SUMMARY
BECS urges the Committee during the course of
its inquiry to carefully consider the following:
— Support for a system of fair compensation
for creators from legitimate private copying.
— Examine the inadequacy of current
"time-shifting" provisions in the Copyright, Designs
and Patents Act and provisions of the Information Society Directive
relating to compensation for private copying.
— Recognise the present technical limitations
of DRM technologies and question DRM manufacturers on their plans
for ensuring that creators, including performers, are fairly compensated
for the exploitation of their work.
— Support an extension of the term
of copyright from 50 to 70 years for performers in light of audio-visual
longevity made possible by digital technology.
— Recognise that collective licensing
within the existing legal and contractual framework can balance
the demand from consumers for increased access to audio-visual
material whilst ensuring remuneration for creators.
28 February 2006
26 See report by Oliver & Ohlbaum Associates for
PACT which recommends a royalty scheme paid for by platform owners
per PVR home for loss of income due to extensive re-use of programming
on free-to-air channels. Back
27
Results from studies by Leichtman Research Group and Carmel Group. Back
28
See clause 70 of Copyright, Designs and Patents Act 1988. Back
29
All of the original 15 EU Member States, apart from the UK, Ireland
and Luxembourg, opted for a private copying exemption to the reproduction
right under Article 5(2)(b) of the EC Copyright Directive. This
exemption ensures "fair compensation" to rights-holders
for private copying. Back
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