Select Committee on Culture, Media and Sport Written Evidence

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.


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.


  17.  BECS advocates licensing not litigation as the solution to illegal audio and audio-visual Services and file-sharing.


  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.


  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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