Memorandum submitted by the National Union
of Journalists
PREAMBLE
The National Union of Journalists (NUJ) is a
trade union based in the UK and Ireland representing 35,000 journalists,
more than 20% of whom are freelance. Our members work in the print,
broadcast and electronic media.
The NUJ has been concerned with issues connected
with the impact of new technology for well over two decades since
the introduction of direct entry. The union established a digital
media working group in 1994 and produced a discussion document
the following year. In 2004, the union agreed to create a new
media industrial council to help guide policy making and activities
directed at the new media of distribution.
Our focus as a union is on the trade and practice
of journalism, but one unforeseen effect of the rise of new media
has been to create some confusion about the precise nature of
journalism. Our working definition is that "journalism"
covers any activity directly connected with the provision of fact-based
content ("editorial") in any medium. This includes researching,
writing, commissioning and editing news, features and comment,
preparation of written, photographic or illustrative material
for publication or broadcast, writing, preparation and distribution
of press releases, presentation of actuality-based broadcast material,
etc.
1. THE IMPACT
UPON CREATIVE
INDUSTRIES OF
RECENT AND
FUTURE DEVELOPMENTS
IN DIGITAL
CONVERGENCE AND
MEDIA TECHNOLOGY
In the 1970s and 1980s, the focus of technological
development within the media was on new production processes in
conventional journalism. Since then, the emphasis has shifted
towards distribution, the convergence of technologies and—perhaps
more significantly—the changing roles of individuals and
institutions within the media. The media landscape is increasingly
populated by self-publishers and broadcasters, bloggers and so-called
"citizen journalists" who blur the established distinctions
between amateurs and professionals, and producers and consumers.
We believe that the development of new media
is having, and will continue to have, a major impact on journalism
and the working lives of our members and, in consequence, on the
cultural and political life of society as a whole. This impact
can have positive and negative effects at the same time—for
example, increasing democratic access to channels for the distribution
of news and comment while undermining agreed professional and
ethical standards in the presentation of such material. On the
one hand, new technology offers journalists new opportunities
to exploit content. On the other, it makes it much easier to reproduce
and disseminate content without the authorisation of the creator—and
without payment for the use of the work.
Governments can have an important role in mitigating
or avoiding any potentially harmful effects of the spread of new
media. In the above examples, this might involve changes to the
national curriculum, the introduction of some form of licensing
and the revision of current and proposed copyright legislation.
Digital convergence and new media technologies
have had a number of related effects stemming from the cost benefits
of mass produced integrated circuitry and the "virtualisation"
of hardware. In journalism, this has had two broad consequences:
first, the "material base" for production and distribution
has become increasingly cheap and more widely available and, secondly,
communications channels have proliferated with a consequent fragmentation
of the market. This has led to a situation where aggressive competition
is accompanied by the removal or lowering of many of the previous
barriers to journalistic endeavour. The results have seen an exacerbation
of the decline in public service commitments, a general collapse
in standards due to competition across the board, a growing trend
towards globalisation of the media, a downward pressure on wages
and freelance fees and an increasing threat to conditions of employment
within the media. These have been accompanied by challenges to
existing intellectual property regimes, ethical principles and
legal liability in regard to content.
Recommendation
The UK Government should investigate the possibility
of introducing an international licensing regime for editorial
web sites and other internet-based communications platforms above
an agreed threshold of visitor traffic. Such a licensing regime
should cover matters pertinent to ethical practice, intellectual
property rights, legal liability and public service obligations.
"Citizen Journalism"
The increasing reliance on "citizen witnesses"
or "citizen journalists", while it is to be welcomed
as evidence of public engagement with current affairs, risks further
undermining standards of integrity, decency and balance that are
already suffering from the erosion of public service. Moreover,
if "citizen journalism" is to become a permanent feature
of our media, government or the media companies themselves must
address issues such as the potential for the exploitation of contributors,
legal liability and the application of health and safety legislation.
As things stand, citizen journalists are often
encouraged to put themselves at risk physically, and may unwittingly
open themselves to legal action.
There are copyright issues connected with the
widespread availability of still and motion video images captured
by mobile camera-phones and other devices, and by the increasing
reliance on so-called "blog culling"—the selection
of material posted on non-commercial web logs ("blogs")
to fill commercial column inches. These are dealt with below.
But we are also concerned with the longer term trends towards
"cut and paste" coverage of important events demanding
perspective and contextualisation. The proliferation of sources
should demand a raising of the bar not the reverse.
Recommendation
UK Government should seek to revise the citizenship
syllabus under the national curriculum to cover the impact of
developments within the media and the nature and importance of
copyright and the rights of individual authors within educational
contexts.
Recommendation
UK Government should clarify the duties of media
companies when dealing with "user-generated content",
particularly in relation to intellectual property rights, health
and safety and legal liability.
Print
The direct translation of new media source material
into older media erodes the already difficult position of print-based
journalism, still considered by many to be the basis of all journalistic
endeavour. The parlous state of the local press can only be exacerbated
by this and we are concerned to prevent further premature closures
within local markets, and the increasing trend towards the monopolisation
of the remaining independent publications which still serve a
vital and, as yet, irreplaceable service in their communities.
In this context, we note the success of specialist
magazines, but deplore the tendency of publishers in this area
of the market to use enthusiasts whose pay and conditions, and
whose lack of training and experience, undermine professional
standards.
Recommendation
UK Government should introduce of a "plurality
test" to limit cross media ownership within local markets.
Recommendation
UK Government should investigate the possibility
of introducing a single independent watchdog involving the participation
of employers, unions, the government and relevant NGOs to monitor
the pay and conditions of all contributors within the media and
to promote the uptake of journalism training and the implementation
of codes of conduct.
The Longer Term/Managing Change
In the longer term, we accept that a transition
from older to newer media is inevitable, but we believe this transition
should be managed and timely; that it may require a combination
of government-funded support initiatives and workforce retraining
to mitigate social problems, and the rigorous exercise of competition
law to ensure level playing fields.
Recommendation
Investigate the options for industry-based support
programmes to help manage the transition to newer media and review
the liberalization of media ownership rules.
2. 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
Since the mid-1990s, copyright has become a
major issue for our freelance members. They operate in a market
where national and international companies often abuse positions
of market dominance.
Since the development of new media such companies
have realised that the work created by our members can be exploited
in new ways that provide huge revenues for publishers, but creators
are denied their share. New technology makes it possible to aggregate
news automatically from a number of different sources, often without
going through the process of clearing copyright. The argument
put forward by Google in creating its news.google.com website—that
it only utilises headlines, thumbnail images, and the first sentence
or two of a story, making the full story and images available
through a link—indicates just how necessary a comprehensive
review of copyright legislation has now become. Google's plans
to copy books in their entirety (arguing that this will increase
sales of printed versions) have already met with stiff resistance
from publishers, and whether the company is right or wrong it
seems clear that there are enough loopholes and inconsistencies
in current copyright legislation to warrant considerable concern."
Our members are increasingly subject to persistent
demands and coercion from many media enterprises to assign copyright
in perpetuity. Those who refuse often find that their work is
no longer required. The NUJ can provide numerous examples of this
in the private sector. We would also draw your attention to the
fact that the BBC, a public corporation, also routinely practises
copyright "grabbing", so that contributors are effectively
forced to unfairly assign rights to the corporation.
It is the view of the NUJ, the Creators' Rights
Alliance and Europe-wide groups representing creators that the
maintenance and development of a strong regime of authors' rights,
both moral and economic, is vital to the development of a thriving
economy.
By this we mean that such a regime would help
ensure the integrity of information produced and distributed;
would enable creators to earn a reasonable living from their work
and to develop their skills; and would provide the essential framework
for a strong creative culture based on respect for the individual
rights of those working in the creative industries and others
who contribute to the media from time to time.
Copyright infringement
Unauthorised reproduction of text and images
is widespread, and the advent of the world wide web combined with
the technological advances that allow small circulation magazines
to thrive with low production costs has seen a burgeoning demand
for images. New technology allows for the delivery of high quality
images at low cost, especially when those images are used without
permission.
Infringers fall into two categories—those
who know nothing about copyright law, and those who know the law
but break it anyway in the belief that they will not be caught.
Those in the first category have succumbed to
a popular myth that what appears on the Internet is in the public
domain and can be reproduced without permission. Educating the
public about copyright law is something the DCMS could greatly
assist with.
Discovering and pursuing unauthorised use is
extremely difficult. Technology has not yet devised a foolproof
system of discovering what uses have been made, therefore tracking
use is very much hit-and-miss by using search engines. Even when
an infringement is detected, the infringer is often based abroad
and the compensation for infringement means legal action in another
country is not viable.
The only effective copyright within e-culture
will belong to those who can afford to defend it by technological
enforcement (Digital Rights Management Technologies), or sustain
an army of lawyers to trace and pursue infringers. This means
large companies only—it is a case of one law for them, another
for individuals for whom detection and legal redress are impracticable.
Recommendation
UK Government should consider mounting a campaign
to promote awareness of current copyright law and authors' rights
especially among educators at all levels and in all institutions.
Recommendation
UK Government should explore the possibility
of requiring the use of technologies for the "watermarking"
of creative products in order to identify legitimate copyright
holders.
Recommendation
UK Government should, in the longer term, reconsider
the basic premise of the 1988 CDPA, which is that copyright is
a commodity, and move towards the more author friendly European
models which do not permit transfer, only licensing. Authors'
rights should apply to employees and freelances equally.
Photography
All this is a far cry from the early ideal that
the web would bring a new dawn of equal opportunity within a virtual
global marketplace teeming with diversity. The expansion of existing
business models onto the web has implied collateral damage for
individual photographers.
The treatment of images throws the issue into
sharp relief. In the last decade two principal players have bought
and wrestled their way to pre-eminence in the digital distribution
of photographs. Corbis and Getty Images now control somewhere
between 50% and 60% of the world's stock image sales.
The freelance may license or sell his/her copyright
as he/she wishes, at a mutually agreed price. But, as noted, the
photography market is a long way from being equitable. The market
is approaching the point where copyright is universally demanded
as a non-negotiable term by clients seeking proprietorial control
without any of the obligation or duties conferred by employment.
Centralising distribution works against the
very diversity that the Web was supposed to foster. In the course
of building their empires through acquisition, the big players
have shelved millions of archive photographs as uneconomic to
put online, and unknown numbers have been lost or destroyed as
some libraries go out of business. Our collective history has
now become a commodity on their balance sheets, and much of it
has already been discarded.
Recommendation
Establish a media-monopolies commission with
the authority to break up monopoly copyright holders.
Assignment
There will always be a minority of people who
break the law, and copyright law is no exception. What does make
copyright different from most other laws, though, is that those
who own copyright face a daily battle with publishers who try
to bully them into surrendering their copyright through the insidious
instrument of assignment—the permanent transfer of rights
of reproduction.
The BBC is among the culprits, but many other
leading publishers—such as the Financial Times, The Independent
and The Economist—insist that copyright must be assigned
to them as a condition of being commissioned.
It does not help, of course, that HM Government
is a copyright bully. It is standard practice among Government
departments to make copyright assignment a condition of being
offered work. This is a curious position for the Government to
take. The very body that introduced the 1988 Copyright, Designs
and Patents Act, which gave creators more rights over their work
than before, actively works against its own legislation by insisting
creators assign their rights to the Government!
Therefore, in response to this question, we
suggest the first step should be taken by HM Government itself.
We would also argue that copyright should not
be transferable. In certain European countries, such as Spain
and Germany, rights to use works may be licensed, but copyright
cannot be transferred. The advantage of such a system is that
the creator continues to be connected to the work. It is our contention
that this connection creates and sustains and environment more
conducive to creative activity.
Recommendation
Government should set an example by ending its
current practice of seeking copyright assignment, and to adopt
best practice that could be promoted nationally.
Recommendation
Investigate the possibility of applying a legally
enforceable licensing model to publication (based on current practice
within the software industry), so that content cannot legally
be assigned.
Moral rights
Current UK law allows the creator of a literary
work to have moral rights—primarily the paternity right
and integrity right—unless the work is reproduced in a newspaper
or magazine. In addition, the paternity right exists only if it
has been asserted.
When copyright is infringed, or assigned by
an individual creator via a contract coercively imposed by a company,
moral rights are invariably infringed, too. This is hugely important,
not just to the creator, but to society as a whole. When a piece
of information is divorced from its source then it becomes difficult
to verify its accuracy. It is not healthy for a democratic society
to have information swamping our electronic media without any
means of verification.
As with economic rights, it has become routine
for publishers to bully authors out of their moral rights. Identifying
the author of a work is considered cumbersome by many, and there
are those who seek the right to re-write text in a way that the
author did not intend.
While UK law allows protection for author's
right of paternity and integrity, it provides only the bare minimum
of protection; and such rights are rendered largely ineffective
by the numerous exceptions and qualifications.
Manipulation of images is of great concern,
especially when an image is published without an acknowledgement
that it has been altered. Manipulated images, we believe, should
carry a "health warning".
Moral rights should not be considered an addendum
to economic rights, but as the starting point of creation, a valuable
means of protecting cultural diversity and innovation, and an
important building block of democratic debate and well-informed
citizenship.
Recommendation
UK Government should consider making moral rights
unwaivable, as they are in certain European countries. The exemptions
for newspapers and magazines should be removed, and there should
be no requirement on the author to assert moral rights.
Recommendation
UK Government should amend the CDPA in such
a way that knowing infringements of the integrity right attract
criminal liability.
3. THE EXTENT
TO WHICH
A REGULATORY
ENVIRONMENT SHOULD
BE APPLIED
TO CREATIVE
CONTENT ACCESSED
USING NON-TRADITIONAL
MEDIA PLATFORMS
Universal service and the digital divide
Despite the rapid spread of the Internet and
associated "non traditional" media platforms (eg MP3
players, streaming video), there remains a digital divide within
this country and throughout the world. This divide is based on
educational and economic factors which should be addressed. Notwithstanding
the efforts of the public library movement, free Internet access
in the UK remains a distant dream, brought no nearer by the way
in which the privatised market for telecommunications has handled
the provision of high-speed, always-on broadband services. The
European Union's goal of "affordable access" is impossible
to define satisfactorily when the market is driven by the constant
drip of new high-priced technologies. Without concerted international
action of the sort that accompanied the spread of telegraphy in
the mid nineteenth century, the Internet can only increase inequality—affording
a minority access to economic and cultural opportunities denied
to the majority.
It would be important to broaden the base of
Internet users even if the medium had no impact on business, retailing,
education or entertainment. The Internet has the potential to
become a major influence on conventional media. Its combination
of global reach and low cost of entry has already seen the arrival
of forums, blogs, mailing lists and alternative web sites, all
challenging the conventional reporting and analysis of news, and
many restoring the important connection between what happens and
what people do about it. Plurality and diversity should be protected
and encouraged.
Recommendation
The UK Government should investigate options
for imposing universal service obligations on Internet service
providers to support free Internet access for disadvantaged groups
of a quality at least equal to the lowest available commercial
offering and to ensure that affordable access is available throughout
the UK.
Recommendation
The UK Government should encourage critical
appreciation of the Internet through education policy.
Self-activity and public service
For established news organisations, the market
model has not translated to the new medium with any real success:
everybody knows that there is money to be made on the Internet,
but it is probably not through its use as a channel or a platform
for broadcasters and publishers. On the contrary, the Internet
challenges the hegemony of the media oligarchy and undermines
the authority of the political establishment. It is arguable that
the greatest successes on the Internet tie it to self-activity
and public service: antitheses of the current dominant models
of commercial media and political control.
Nevertheless, there are enough examples of media
companies seeking to move into new media in order to cut costs
for it to cause immediate concern at the way in which jobs may
be shed in the process of convergence, or media workers may be
required to multi-skill with scant regard to issues of pay, training
or health and safety.
We believe that the idea of simply replacing
older media with newer ones is both short-sighted and a potential
threat to the livelihoods of our members.
Recommendation:
The UK Government should encourage the use of
the Internet and other new media by not-for-profit organisations
through offering tax breaks.
Recommendation:
Workers should not be forced to multi-skill
within convergent media and all multi-skilling should respect
the need for training and compliance with health and safety legislation.
Legal liability
Examples are legion of the inadequacy of international
law with regard to the Internet —it is a jungle of censorship
and legal liability. The seizure of servers belonging to the alternative
news organisation Indymedia is typical: in 2004, a US agency (the
FBI) requested the UK authorities to seize equipment owned and
operated by a UK company on UK territory at the behest, apparently,
of the Swiss authorities concerned about events publicised on
a French website. Some evidence suggests that the server actually
under investigation was located in Italy. The action was disproportionate
(which sites hosted on the server were being targeted?), unjustified
(nobody was told—in public—why the action was being
taken), and extraterritorial.
Civil and criminal law are unclear about liability
for anything published on the Internet—whether the issue
is criminal intent, national security, defamation, or breach of
copyright. A legal framework covering both liability and remedy
is essential, and it must be accompanied by full disclosure of
the reasons for and the parties to any legal action, subject only
to internationally agreed judicial process.
Recommendation:
The UK Government should seek international
agreements in the appropriate forums on the acceptable use of
the Internet and other global media, the development of an international
treaty-based regulatory framework for the Internet and an enforceable
legal liability regime covering defamation, breach of copyright,
fraud, deception, malicious intent and hate-speech.
4. 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
In regard to the BBC's Creative Archive, the
question has been posed as to where the balance should lie between
the rights of creators and the expectations of consumers.
It is of concern that consumers are encouraged
in the belief that they can download material and manipulate it
as it pleases them, and pass it on to others without any payment
being made. It is of equal concern that this approach will hardly
foster in consumers a respect for the original intention of the
creator.
This, of course, leads us back to moral rights,
covered above.
As a public body, the BBC, like the Government,
should be taking a lead in adopting best practice. Instead, the
BBC routinely asks freelances to waive their moral rights at the
point of commission.
This allows the use of work in the Creative
Archive in a way that does not credit the original author nor
does it preserve the intention of the original author.
It s our view that the creator should retain
copyright and have the choice of licensing material for a fee
to the Archive. The BBC can then choose to allow free use or charge
a fee.
Instead of a waiver of moral rights, we would
like to see the BBC introduce a licence that insists on the integrity
of the work, as enshrined in the 1988 Act.
Recommendation
As a condition of charter renewal, the BBC should
be obliged to introduce a licence identifying the author of any
work in the Archive and limiting the degree to which the work
can be dealt with "creatively".
Summary of recommendations
The UK Government should investigate the possibility
of introducing an international licensing regime for editorial
web sites and other Internet-based communications platforms above
an agreed threshold of visitor traffic. Such a licensing regime
should cover matters pertinent to ethical practice, intellectual
property rights, legal liability and public service obligations.
UK Government should seek to revise the citizenship
syllabus under the national curriculum to cover the impact of
developments within the media and the nature and importance of
copyright and the rights of individual authors within educational
contexts.
UK Government should clarify the duties of media
companies when dealing with "user-generated content",
particularly in relation to intellectual property rights, health
and safety and legal liability.
UK Government should introduce a "plurality
test" to limit cross media ownership within local markets.
UK Government should investigate the possibility
of introducing a single independent watchdog involving the participation
of employers, unions, the government and relevant NGOs to monitor
the pay and conditions of all contributors within the media and
to promote the uptake of journalism training and the implementation
of codes of conduct.
Investigate the options for industry-based support
programmes to help manage the transition to newer media and review
the liberalisation of media ownership rules.
UK Government should consider mounting a campaign
to promote awareness of current authors' rights and copyright
law especially among educators at all levels and in all institutions.
UK Government should explore the possibility
of requiring the use of technologies for the "watermarking"
of creative products in order to identify legitimate copyright
holders.
UK Government should, in the longer term, reconsider
the basis premise of the 1988 CDPA, which is that copyright is
a commodity, and move towards the more author-friendly European
models which do not permit transfer, only licensing. Author's
rights should apply to employees and freelances equally.
Establish a media-monopolies commission with
the authority to break up monopoly copyright holders.
Government should set an example by ending its
current practice of seeking copyright assignment, and to adopt
best practice that could be promoted nationally.
Investigate the possibility of applying a legally
enforceable licensing model to publication (based on current practice
within the software industry), so that content cannot legally
be assigned.
UK Government should consider making moral rights
unwaivable, as they are in certain European countries. The exemptions
for newspapers and magazines should be removed, and there should
be no requirement on the author to assert moral rights.
UK Government should amend the CDPA in such
a way that knowing infringements of the integrity right should
attract criminal liability.
The UK Government should investigate options
for imposing universal service obligations on Internet service
providers to support free Internet access for disadvantaged groups
of a quality at least equal to the lowest available commercial
offering and to ensure that affordable access is available throughout
the UK.
The UK Government should encourage critical
appreciation of the Internet through education policy.
The UK Government should encourage the use of
the Internet and other new media by not-for-profit organisations
through offering tax breaks.
Workers should not be forced to multi-skill
within convergent media and all multi-skilling should respect
the need for training and compliance with health and safety legislation.
The UK Government should seek international
agreements in the appropriate forums on the acceptable use of
the Internet and other global media, the development of an international
treaty-based regulatory framework for the Internet and an enforceable
legal liability regime covering defamation, breach of copyright,
fraud, deception, malicious intent and hate-speech.
As a condition of charter renewal, the BBC should
be obliged to introduce a licence identifying the author of any
work in the Archive and limiting the degree to which the work
can be dealt with "creatively".
17 February 2006
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