Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by Equity


  1.  Equity is a trade union representing 37,000 performers and creative personnel who work across the whole spectrum of entertainment. This includes a number of creative industries identified by the Committee in its terms of reference such as visual broadcasts, sound broadcasts and film. As a result the majority of this submission refers to our experience representing creators within film, television and radio. In addition it acknowledges the potential for sound and visual broadcasts of the work of our members working in live performance and theatre.


  2.  The Government has placed a welcome emphasis on the continued success of the UK's creative industries. It has acknowledged that they are a real success story and one of the fastest growing sectors of the economy, accounting for more than 8% of GDP and two million jobs.

  3.  Equity also welcomed the Government's commitment in its 2005 general election manifesto which stated that "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. Piracy is a growing threat and we will work with industry to protect against it."

  4.  One of the measures announced to implement this commitment is the Gowers Review of Intellectual Property—announced as part of the Pre-Budget Report on 5 December 2005. This review will be led by Andrew Gowers and will provide an analysis of the performance of the UK intellectual property system, which will include the way in which this functions for the creative industries.

  5.  The Minister for Creative Industries, James Purnell MP, has also outlined plans to help make Britain "the world's creative hub" and talked of a commitment to make a real difference to the productivity and growth of the creative economy. The Minister talked of addressing seven steps to make a difference, including skills and education; intellectual property; new technology; access to finance; diversity; infrastructure and evidence of the importance of creative industries.

  6.  Equity believes that the Government is right to focus on creative industries in this way and hopes that it will seek to foster an environment that stimulates and supports creative talent. However, to ensure that the UK benefits from its true potential in this area, creators need a supportive framework to ensure that there is appropriate reward for the investment in their creativity and innovation.

  7.  For audiovisual work this means recognition of the rights that are intrinsic in the work of performers. There has been slow progress at the World Intellectual Property Organisation (WIPO) towards an audio-visual protocol that would address these concerns, despite the broad consensus about introducing rights for performers in this area.

  8.  The UK Government is already committed to the introduction of moral rights for sound recordings and Equity believes that there is nothing to stop it from taking the lead in this matter and introducing similar rights for audio-visual performances prior to any protocol being agreed. Legislation to implement moral rights to cover both audio and audio-visual performances would also bring the UK to a level more comparable with other EU states.


  9.  Technology and ownership are increasingly bringing together the previously separate industries of broadcasting, telecommunications and the internet. Digital technology provides a common format for the transmission of signals, with the same organisations seeking to own and manage both the physical network (hardware) and at least some of the services using that network (software).

  10.  For a number of years there has been an acknowledgement that these trends and the advances in digital technology would lead to an inevitable convergence between different types of media. The most notable public policy decision to recognise this process was the creation of Ofcom and the other key measures within the Communications Act 2003. The Act brought together the regulation of telecommunications and broadcasting as previously carried out by five different regulators and sought to define a broad approach to media ownership, the need for regulation and moves toward self-regulation.

  11.  The trend towards convergence identified by the Communications Act has been present for some time—with cable television networks providing internet and telephony services and telecoms companies expressing a desire to provide entertainment services like video on demand. However, recent developments appear to demonstrate an acceleration and proliferation of business models from a range of providers, as technology becomes more reliable and accessible to consumers.

  12.  There are now ways of accessing the work of Equity members that were unimaginable only a few short years ago. This trend has been accelerated by consumer demand, which has grown due to convergence and the impact and availability of media technology. In particular, products and services have been developed which have enabled the affordability and accessibility of portable devices with greater computer processing power and storage capacity (such as iPods, other MP3 players and games consoles). There has also been a rapid take up of high-speed internet access over the past few years, as well as 3G mobile phones and the emergence of companies offering a "triple-play" of multi-channel TV, broadband internet and a telephone service.

  13.  Equity believes that these developments present an opportunity for creative industries to improve the accessibility and availability of creative work across a number of platforms. However, it is also a challenge to the broadcasters and other media companies that are planning to operate in this new market to provide an accessible and legal means of viewing audiovisual material.

  14.  As a result, Equity has made a number of agreements with broadcasters and producers to enable the use of audiovisual material on new technology and new platforms, and will continue to do so. This has included negotiated arrangements with the BBC, which have provided payments to performers for the trial of video on demand and an on-line "catch up" service through the interactive media player (iMP).

  15.  In addition, wide-ranging discussions have been taking place with major broadcasters and producers—who will continue to be the major content providers of the future—to develop formal agreements that will enable the use of material and provide fair and equitable payment to performers and other creators. This is important for a number of reasons.

  16.  Firstly, it is significant because it illustrates the continued importance of high quality content. In an era where next generation television will mean that programming will be available anywhere, at any time, on a device of your choice, there will need to be distinctive and high quality programming capable of maximising a fragmented audience. This will be necessary for public service broadcasters, but will also be desirable for other organisations which are hungry for content on their platforms.

  17.  Secondly, it is important because of the continued acknowledgement of the rights of performers associated with the material. Equity would be concerned if the impact of convergence and the availability of material was used as a pretext for undermining these collective rights as agreed with broadcasters and producers.

  18.  A separate but related matter is the potential use of archive recordings, which could apply equally to performance in film, television, radio and theatre. For example, Equity has already made an agreement with the Royal Shakespeare Company in order to make available some of the most notable performances in its history for the first time on CD. Equity believes that the use of technology to make such work available on other platforms presents exciting possibilities, but again notes the need for rights to be respected and rewarded.


  19.  It is widely acknowledged that (so far) the music industry has been most directly affected by the increase in high quality unauthorised reproduction and dissemination of creative content using new technology. Research for the British Phonographic Industry estimated a loss in sales of £654 million just over two years (2003-04). This reflects alternative ways that consumers have been downloading music, both through illegal file sharing activity and an expansion of legal downloads, which have increased dramatically but been unable to replace lost revenue.

  20.  It would appear from the developments in the music industry that the unauthorised reproduction of creative content is, and will continue to be, driven by the consumer demand. The availability of high quality digital reproductions and the technological means to access this material on a much bigger scale through high speed internet access has created an irresistible proposition of the latest, high quality recording for a lower price.

  21.  While it is necessary to protect the rights of creators (sometimes through legal action) it is preferable to acknowledge this demand and work to develop legal means of managing the demand for the work of creators, though appropriate business models. The music industry is now well developed in this area with the dominant model being that of iTunes, which has illustrated the desire of the vast majority of consumers for a legal alternative to the illegal file sharing or reproduction.

  22.  Increasingly, performers of audiovisual work have seen their content become available illegally on the internet and through online peer-to-peer (P2P) networks. Just in the past year there have been a number of high profile examples of films appearing on P2P before they had even made theatrical release in the UK, including Alexander, Shrek 2 and Star Wars: Revenge of the Sith.

  23.  However, this is not just a problem for film, as a number of British television programmes have also appeared on the internet including EastEnders, Hollyoaks and a number of classic comedy programmes. Probably the most high profile example of this in the UK occurred earlier this year, when the BBC also found that its new series of Doctor Who was available on-line before it had even been broadcast.

  24.  Clearly, the audiovisual industry must learn the lessons from the approach of the music industry and its response to unauthorised reproduction and dissemination of material. As a result Equity will continue to work with broadcasters, producers and potentially other content providers to focus on ways in which the interests of performers and creators can be protected as these new business models develop.

  25.  Against a background of greater affordability and availability of technology able to provide the means to produce high quality copying, Equity has supported the concept of a levy applied to recordable media (such as blank tapes and CDs) and equipment (including computer hardware and portable download devices such as i-Pods and games consoles). This would acknowledge the reality that private copying occurs and will continue to do so.

  26.  Good laws are those that are respected by the citizens and the fact remains that the present law is not respected. Equity would therefore favour a broader exemption to the reproduction right to allow for legitimate private copying, coupled with a levy system to enable right-holders to receive revenue for the use of their material in this manner. The majority of EU member states already have a levy on blank recording equipment or devices and some are considering how this can be extended to hardware and new media in the manner outline above. The UK is one of only three EU member states without such a levy system. Nevertheless, revenue is collected by British Equity Collecting Society on behalf of British performers from private copying levies in these countries.

  27.  There is an argument that such a levy will be unnecessary as advances in digital rights management systems (DRMs) enable limits on private copying, however Equity does not believe that this is a long term solution. DRMs are often seen as a protectionist measure, which can lock certain users out completely and can create a good deal of public hostility. It has also been the case that the professional "pirates" of such material are able to crack such systems relatively quickly.

  28.  Therefore while DRMs may help to provide a helpful enhancement in the flexibility of the propositions that can be offered to consumers in the short term, a levy system is a more sensible approach to adopt for the future. This would enable consumers and legislators to more easily discern between piracy and private copying as a consumer, creating a renewed legitimacy in a copyright system sometimes viewed as anti-citizen.


  29.  The UK has adopted a distinctly "light-touch" approach to the regulation of creative content and traditional media platforms overseen principally by Ofcom in respect of broadcasting (other than the BBC). As far as Equity is aware the only UK body which even attempts to monitor and report upon content of non-traditional media is the Internet Watch Foundation, which is the internet service providers' own attempt at self-regulation.

  30.  The Committee will be aware of the recent debate in respect of the Television Without Frontiers Directive and specifically whether the scope of a revised version of the Directive should cover both traditional or "linear" services and non-traditional or "non-linear" means of broadcasting.

  31.  Organisations representing performers, such as Equity, have expressed the view that the Directive has contributed towards an increase in potential work opportunities for performers, by ensuring that broadcasters meet a range of basic obligations and support genuine European audiovisual production. As a result there is considerable support for a retention of current regulation in non-linear media. Moreover, Equity has consistently supported the removal of the qualification "where practicable" regarding the measures of distribution and production of television programmes.

  32.  We welcomed the initial European Commission position with respect to the regulation of non-linear platforms, but noted the objection of internet service providers, telecommunications companies and some broadcasters to the inclusion of these non-traditional services with such a regulatory environment. The UK Government also appears to have assumed a position broadly opposed to a single regulatory framework that would encapsulate such services.

  33.  Clearly, the task of updating the TVWF Directive is hugely complex, especially at a time when convergence is happening so fast and in so many different ways. However, Equity remains in favour of a reinforced Directive in traditional areas and the application of similar principles to non traditional services. Nevertheless, we must acknowledge that strict quotas and definitions that serve a useful purpose in the context of traditional broadcasting will need to be adapted and updated.

  34.  It will also be necessary to have a more detailed debate about other public interest objectives, such as the protection of children, which may lead to the greater use of labelling. If audiovisual content that is available on-demand then clearly any use of a 9.00 pm "watershed" will become redundant. For this reason we understand that the current trial of the BBC iMP has experimented with such a labelling approach.

  35.  Equity is also following with interest the debate between broadcasters and producers over rights for new media. The final determination of what constitutes a primary and secondary "window" for programme use on these new platforms will have a direct impact on the future of the whole audiovisual industry. Ofcom's statements in this matter appear helpful and indicate the need for it to play a greater role in internet regulation.


  36.  The examples cited above illustrate the need to find an appropriate balance between the rights of creators and the expectations of consumers. However, Equity does not believe that these needs are mutually exclusive. If a sensible approach is adopted, then it is possible to find an accommodation that can respect rights of creators and address consumer demand. Currently this involves the application of copyright (and collectively agreed rights in some cases), which allows for economic rewards and encourage future creativity, combined with the licensing of a creators' work that ensures availability and access for the public.

  37.  However, Equity notes that the copyright of performers on recordings made in the UK and the European Union is limited to 50 years, whereas sound recording copyright can continue for 95 years in the USA and for an average of 75 years in most non-EU countries. As a result of this UK and EU recording artists are often denied income from the playing of their recordings during their lifetime. Equity has therefore supported calls for the Government to recognise this as denial of income due to artists and to alter UK and EU copyright laws accordingly.

  38.  The Committee will also be aware there are alternative licensing arrangements such as the Creative Commons system which is particularly aimed at individuals who have no commercial ambitions, and are seeking to contribute to a creative or intellectual "common". The BBC Creative Archive that is identified by the Committee is a variation upon this model, but it does not appear to provide an answer as to where the balance should lie in respect of future business models which may be used to address this issue.

  39.  Equity welcomed the BBC's plans to create a viable archive that allows the public to access archived material in manner that is capable of respecting rights. To that end we supported the initial commitment in the BBC's Building Public Value document to "help establish a common resource which will extend the public's access while protecting the commercial rights of intellectual property owners". Nevertheless, the current Creative Archive scheme and associated licence arrangements has not been developed in a manner that will offer a suitable platform for the commercial exploitation of performers' work.

  40.  The current Creative Archive licence is principally for factual and educational programmes and so will avoid the challenge of including material with copyright implications. However, it is this very omission that undermines the scheme—by simultaneously raising expectations, but failing to confront the possibility that many creators may consider this licence as an inappropriate way to make their work available.

  41.  The current licence is therefore an inadequate and inappropriate mechanism for enabling this type of availability, while respecting rights in the manner that was envisaged. While we understand that this is a draft licence it seems to us that there will need to be considerable further work on alternative approaches to incorporate this type of work in any future creative archive scheme.

  42.  There is clearly demand from consumers for archive material and downloads of a range of creative work. Probably the biggest single example of free "public service" material being made available was in June 2005, when the BBC launched free downloads of the complete Beethoven symphonies. The complete symphonies were the most popular downloads of all time and were downloaded a total of 1.4 million times in the two weeks. While this is encouraging in that it illustrates a real appetite for classic material over the internet, it has also raised a number of serious questions about the most suitable way in which consumers expectations can be addressed.

  43.  There is a sense in which this type of service displays the same weaknesses as the Creative Archive, in that it helps to build up an unreasonable and inappropriate expectation that all creative work is somehow free for everyone, with no costs incurred in the creative process. As outlined above, it is better for both consumers and creators if robust business models can be developed to meet this demand.

  44.  Moreover, the commercial impact of any such service that is provided, even where there are no immediate rights implications, should be assessed and measured in consultation with producers and publishers. For the BBC, it may be that its proposed service licences could assist in this process.


  45.  Equity welcomes the Committee's inquiry into this area and hopes that it will recommend that the Government takes the follow measures:

    —  Support the implementation of an international audiovisual treaty on performers' rights through WIPO.

    —  Implement its manifesto commitment to work with industry to address the growing threat of piracy, but support investment in legal business models so that creative work is available on the and emerging platforms.

    —  Acknowledge the possible cost implications for the BBC and other broadcasters from expanding into new technology—and consequently support a future enhancement of the licence fee to meet these obligations.

    —  Undertake detailed consideration and assessment of the impact of a levy on recordable media and associated devices.

    —  Support the principles of the Television Without Frontiers Directive so that it can be reinforced in traditional areas and the adapted to address non traditional services.

    —  Extend current term of copyright protection on sound recordings and performers rights.

13 January 2006

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