Examination of Witnesses (Questions 80
- 95)
TUESDAY 16 MAY 2006
MR CHRISTIAN
AHLERT, MS
JILL JOHNSTONE,
MR DAVID
STOPPS AND
MS EMMA
PIKE
Q80 Chairman: Do you think that is
something the Government should approach?
Mr Stopps: I do. I think the Government
should say, "If you're going to be a monopolistic collection
society, you have to have a democratic board structure".
It is just basic democracy. We are not represented properly and
it is a big, big issue. There have been abuses which I could go
into but we don't have time. The other thing is audio-visual rights—that
is a very big issue for us. There is no legislation for audio-visual
performers. The balance of right is completely lacking in that
area. If you get played on the radio, as a performer you get paid;
your public performance right kicks in and you get paid by PPL;
if you then make a video where you are actually performing twice
as much, because you are now an actor in the video and you have
your record playing underneath, you get no rights at all and it
all goes to the record company. That is an imbalance which desperately
needs putting right. Fair dealing is another issue. There is a
company called Classic Rock Productions at the moment which is
putting out DVDs of footage of Pink Floyd, for example, and then
they get an unknown musician off the street to critique it and
review it; it then falls under the wire because it is now a work
of review and criticism and, therefore, they do not need to clear
any rights at all and they do not pay anybody any royalties. This
company are on their 60th DVD and they are making an absolute
fortune which desperately needs sorting out. There could be a
lot of other companies following them which could drive a coach
and horses through the entire copyright system in this country.
Q81 Mr Sanders: Could you explain
how that works?
Mr Stopps: With fair dealing in
the 1988 Copyright Act if you are using a work for, say, a news
programme or for review or critique then you do not have to clear
any rights. BBC1 News, for example, when they use a bit of football
footage from Sky can do that legally and they do not have to pay
Sky. They can do it because it is a news item and it comes under
the exceptions rule. Fair dealing for review or criticism also
comes into those exceptions. This is a huge issue. This company
very cleverly spotted the loophole and are exploiting it to the
maximum and others will follow.
Q82 Chairman: It is a tweak that
you want?
Mr Stopps: Yes, a tweak. I think
the spirit of the law was that it was genuine critique and review,
for example in a programme that genuinely reviewed such things,
but not to sell them on the open market for commercial gain—that
was not the intention. However, the law does not say that as such
and it needs to. The other point that is very important for performers'
rights is that the right to remuneration that PPL administer has
been a big success for us. It is not assignable in contract and
is therefore, it is a right that a performer cannot have taken
away by the record company. It is an independent right that we
all get. That is the only one I can think of under UK law where
a performer has a right that is not assignable in contract, and
that is because it is a remuneration right. We are against exclusive
rights. Exclusive rights do not mean anything to us. If you take
the right of making available or the moral rights of performers
that came in this year, those are meaningless because the moral
rights are always waivable in a contract. A record company (and
a publisher for that matter) will never sign an agreement where
they are not waived so they are just meaningless. The making available
right, which is the big exclusive right that creators and performers
received from the WIPO Internet treaties, is always assigned and
is totally non-negotiable. It is always assigned so we get no
benefit at all from it.
Chairman: I think we are going to have
to move on!
Q83 Rosemary McKenna: You are saying
that Creative Commons is a balance between one extreme and the
other—total copyright and freedom. How many works are currently
licensed under Creative Commons? Could you give us an idea of
the range of the work? As is sometimes suggested, are Creative
Commons and the BBC's creative archive a threat to other industry
stakeholders?
Mr Ahlert: Let me start with the
first question. Creative Commons was started in the US something
like four and a half years ago. Now you can find on the Internet
roughly 25 million back-links to Creative Commons. It sounds a
lot, 25 million. I have to example very, very shortly what I mean
by "back-links". Basically what you do is have a piece
of work—it could be a picture—and you put it on an
Internet site; you attach a licence to it which has a small logo
and underneath you have what we call a "human readable layer"—because
it is not the licence in itself, it spells out the basic terms
of the licence; like you can make a derivative work, or you can
copy this work. We have done this because nobody on the Internet
has the time or the inclination to read a licence which has been
drafted by a lawyer. This is one of the problems. If you license
stuff you have a five-page document and you always click through.
You have lawyer licence, if you like. There are roughly 300 jurisdictions
now throughout the world which have created their own Creative
Commons licence. We started in Oxford three years ago with a team
of lawyers and then the licence was released a bit longer than
a year ago. As I said earlier, there are like 100,000 links to
the main Creative Commons page, and this is an indicator of how
many licences are used. You can in the meanwhile search through
Yahoo and Google for Creative Commons licence content. If you
look at the Internet, how do you find stuff, how do you access
something? The main access points are Google and Yahoo. This determines
what you see. For the Arts Council project we have developed tools
and you can measure how many sites Yahoo finds. What type of content;
anything from music to films. There is a very prominent photo-sharing
website, for example, which was bought by Yahoo last year which
is called Flick. People upload their digital photos on those sites.
A significant portion of those pictures are licensed under Creative
Commons. Yesterday I had a meeting with representatives from 30
different museums in the UK, because they are looking at the possibility
of using Creative Commons. We have a number of very small, young
record labels, also based in the UK, that are making use of Creative
Commons. You might ask, why are they doing this? Quite often they
are young start-up companies; they are mainly signing up unknown
artists and what Creative Commons basically says for the songs
is that you can share those songs with others; you can distribute
them. In a sense it is a good marketing tool in a digital environment.
These online record labels are saying that they are sharing more
of the profits they make with the artists then other record labels.
This is a very young and emergent industry. I think it would be
very interesting to look at how the business models work and how
they actually make money. I would not recommend Creative Commons
for everything, but in certain contexts it makes a lot of sense.
I had a sense in the discussion that there was still this separation
between consumer and professional producers. I think you will
have that separation always but I think you can conceptualise
consumers differently in this environment and they are more proactive
where they participate in the production of culture and the adaptation
of culture. That is the main reason why certain artists, even
small businesses in the creative industry, are starting to choose
to use Creative Commons because they see that basic copyright
law is more a barrier towards that form of creativity than it
actually helps.
Q84 Mr Hall: Just tell me if I understand
this correctly. What you are saying is that the copyright of 50
years should be extended to 70 because artists in 1955 who did
not sell any records and did not make it big are reliant upon
the income from those record sales and airplays now. Is that what
you are saying?
Mr Stopps: Absolutely. I was reading
an article recently about Joe Brown—and I do not know if
you are old enough to remember him, I am—and he had a few
hits around that time, probably in the late 50s and early 60s
so he is not out of copyright yet but he will be soon, but he
has not had any success since. He is relying on those few hits
he had at that time, which keep getting reused and replayed on
the radio all the time, to give him some sort of pension in his
older age. That is absolutely an issue.
Q85 Mr Hall: That must be one of
the very few exceptions, must it not? There are not many artists
out there who are reliant on two or three hits. What sort of income
will he be getting?
Mr Stopps: It depends on how much
it is played on the radio. Certainly his records are still played
on the radio and people still buy them. All that will happen is
that the record company will keep selling them but the performer
will not get paid. The record company keep making a profit, the
consumer does not really get any advantage because they are still
paying the full price for the CD and the only person who will
lose out is Joe Brown and there are lots of Joe Browns out there.
Q86 Rosemary McKenna: He is a performer
or just not a writer?
Mr Stopps: Absolutely, that is
the thing. If you are a writer you get 70 years after you are
dead. The difference between those two terms of copyright is so
extreme, why is that? It is certainly discriminatory against performers.
The reason is that the law on the rights of performers is one
hundred years younger than that for composers, creators and songwriters.
That is the only reason there is a difference. On the song-writing
side, copyright can last for 130/140 years if the song was written
when the creator was 20 and they lived to 80. On the performers'
side it is 50 years no matter what. Those two things are so far
apart they need to be brought together.
Q87 Mr Hall: You are trying to get
the genie back in the bottle which is almost impossible. Because
of the technology that is available, people download stuff on
the Internet and they do not give a second thought about copyright
and probably do not understand copyright law. Why do we not find
some other way of rewarding the artists for their creative talent
rather than just relying on copyright?
Mr Stopps: We would be open to
any suggestions that you had if they were reasonable! I think
one of the key features of this is education in schools on copyright
and the importance of intellectual copyright to this country in
terms of the economy and cultural significance. I think education
is a fundamental issue which we need to focus on.
Q88 Mr Hall: The youngsters are actually
downloading the material that is popular today; that will not
aid Joe Brown; and Cliff Richard, Mick Jagger or Keith Richards
are not impoverished; they are reasonably well looked after. If
we actually made this part of the curriculum and said that this
is what copyright is all about, that will only deal with people
who are illegally downloading stuff and playing it publicly and
not for their own private use. There is not much benefit there,
is there?
Mr Stopps: I think there is. I
think education is absolutely important. It is a very important
part of the economy now—intellectual property rights—and
I think kids need to understand when they are just ripping music
for nothing that there is somebody who created that and performed
on that who is not getting paid, and that is not right. We have
not really mentioned home-copying measures, but that is one way
of going where the writers and performers can be compensated for
a degree of home-copying. We would certainly be in favour of home-copying
levies. Last year in Europe half a billion euros were collected
in home-copying levies and distributed to performers, creators,
record companies and publishers and that is a lot of money.
Q89 Mr Hall: We have talked about
education and putting this thing in the national curriculum; I
am not entirely convinced there is a need for that. What about
the general consumer, how do we actually go about informing the
consumer on this?
Ms Pike: Could I just jump in
on the education point particularly. My organisation, British
Music Rights, has actually done quite a lot in this area, both
working on its own and also with the Government. Teachers in our
experience are actually crying out for copyright materials to
enable them to teach copyright in schools. It is less actually
about telling people that they should not download illegally,
and it is more about empowering the creative individuals and creative
entrepreneurs of the future. Copyright is a key business skill
considering that 8% of our economy is creative industries and
that is likely to grow in the future. If we want to fuel and empower
those industries then we need to embed copyright as a core business
skill in schools and also in further education. We produced some
lesson plans two years ago and we did a mail-out to 6,000 secondary
schools saying, "We have done this resource, would you be
interested in receiving a copy?" 80% of them came back and
said they were interested. I think that just demonstrates really
the demand among teachers for these kinds of resources.
Q90 Mr Hall: What about making the
consumer more informed about the problem?
Ms Johnstone: If you can make
people more informed about creativity—and in a sense copyright
is a means to an end and not an end in itself—everyone needs
to get into the curriculum ideas about the importance of creativity
to the economy and their creativity to the economy. In a sense,
you will not get respect for laws that are not seen to be both
reasonable and just. While we have consumers being prosecuted
for activities and DRMs which are very untransparent, that are
preventing them from use in goods in the way they think they ought
to be able to use them, we cannot expect respect for a law that
does that. While we are on the reform of the law, I think David
made an important point. We obviously want to see the exceptions
and exclusions and the law clarified to improve consumer rights
and tell them what they can do rather than constantly tell them
what they cannot do. A point David touched on—there is no
distinction in the sense between commercial exploitation, quite
often, in the law and consumers' private infringement. We see
this in the development of enforcement legislation. I think we
need a very clear distinction between commercial counterfeiting
and exploitation for profit (and certainly we need some very stringent
enforcement measures against that), and consumers' private, totally
non-commercial use of the products they have purchased in their
home. Currently the law does not provide that clear distinction
well at all. Going back to the 50-year term issue again—it
seems from the evidence that most returns are made in the early
years of release. As you say, young people will be copying things
that are popular now. It seems to me that the issue of artists'
remuneration is to ensure that they get a fair share of those
returns so they, like all the rest of us, are able to put money
aside for their retirement, rather than extending copyright term
where still the returns may not be fairly distributed. In a sense
it is the wrong tool to deal with the issue of fair remuneration
for artists.
Q91 Helen Southworth: Can I draw
you a little further on the concept of education, and particularly
education within schools. What I am hoping for is some kind of
an opinion on educating creators, and also educating and developing
knowledgeable consumers, knowledgeable viewers and listeners.
Do you have opinions on the kind of vehicles that we could use
using new technologies to re-establish some of the film clubs,
the DVD clubs in extended schools, or those sorts of things? Have
you thought about that? I am getting tremendous enthusiasm from
young people in the constituency who want to be able to do interesting
things together using school facilities, and quite a lot of interest
from special schools in the constituency working in creativity
and music. They are terribly keen to do these things and yet there
do not seem to be the vehicles there for them to do them.
Ms Pike: We are currently working
on a new project with Young Enterprise in schools. Young Enterprise
are very keen to do a music-specific project in schools because
they have found when they have set up their Young Enterprise business
a lot of children actually choose to do a music project in any
case. We are helping them to develop a short company programme
specifically on music with resources that are tailored for that.
Obviously copyright will be a key component in that. That is one
area which I think is very exciting. The DCMS and DfES are planning
a seminar shortly to look at how you can put copyright teaching
into various bits of the curriculum. That is another thing going
on. In terms of creators and start-up creative entrepreneurs,
there is a service called Ownit, which is part of Creative London,
which I think is a very, very interesting model which could possibly
be rolled out nationwide. That is an IP advisory service; so if
you are setting up a new creative business you can go there and
have access to people who have already done it and you can get
advice. It is a very, very useful organisation.
Q92 Helen Southworth: What about
the teachers or young people themselves who want to set up a DVD
club within school watching film or listening to music, how are
we going to develop that side of it—about learning and assimilating?
Mr Ahlert: Certainly copyright
law is a very complex beast, if you like. We also hear in this
discussion there is an angle where it is almost trying to be a
pension system and it can incentivise initial creativities. When
you are a teacher, let us say you have the technical resources
in your school and you have access to the Internet, and you have
computers, you are quite unsure about at what point you are encouraging
infringement. For example, I think some teachers do not choose
to do certain exciting projects—like a film project where
you basically choose a collage using different materials that
you find on the Internet—and say, "Stop, don't do these
things", which could be exciting and facilitate creativity
in teenagers and give them the skills to have that specific creativity;
because you need to learn how to use certain programmes and in
a way it either limits how much you need to change an image until
you can use it, or you cannot use it in the first place. These
are the questions that teachers have. There you could just provide
them with better material for them to be taught. What are the
services that are used? What are the practices that happen out
there? One of the most exciting applications right now on the
Internet is audio-visual uploading services. One is provided by
Google and one is an American-based company. There are thousands
of short movies uploaded which are basically made by a rather
young generation. I go there all the time to find some really
interesting fascinating weird movie from South Korea.
Mr Stopps: Children obviously
are at the forefront of copyright in a way because they are at
the forefront of illegal file-sharing etc; but they are also the
creators and performers of the future. We need education generally
in the area of copyright to say, "If you want to be a creative
performer, you really want copyright; but if you're just going
to be illegally file-sharing then perhaps you don't want copyright".
It really has to be discussed and they need to be informed of
exactly what the rules and regulations are so that they know.
A lot of them have no idea. They have no idea it is even illegal.
We need more education in general. There are certain exceptions
already for educational uses in copyright and maybe that needs
to be looked at.
Q93 Mr Sanders: Somebody creates
something and they put it out there, any number of things can
happen to it. For example, for the Eurovision Song Contest our
entry sounds great and we all hope it is going to win. The other
day I was listening to Simon & Garfunkel The Boxer
and I thought "Hang on a minute, could our entry actually
have been created if it had not been for The Boxer?"
There are incredible similarities between the two. If you take
any successful piece of music you can look back and actually trace
the origins of the harmony of where it comes from.
Ms Pike: I have not actually heard
our Eurovision entry so I cannot comment on that particularly,
but I would say there seems to be an increasing emphasis on copying,
pasting, sampling and plagiarism, frankly. I just want to point
out that copyright law does not in any way inhibit being inspired
by other people's work. I think that was demonstrated incredibly
clearly recently in the Dan Brown case on the Da Vinci Code. He
was obviously prosecuted for having borrowed elements from a plot
in a previous book, but the judge found, absolutely correctly,
that that actually does not infringe copyright law. You only infringe
copyright law if you literally cut and paste. It is absolutely
okay to borrow ideas, concepts and be generally inspired. I just
want to stress that that balance already exists in copyright law.
Just to respond to some of the remarks on Creative Commons: Creative
Commons is a new kind of licence; it is a copyright licence fundamentally
and there is any number of different kinds of copyright licences.
With the kind of sampling and sharing which Creative Commons encourages,
you can do that in other ways as well. If you look at any number
of artists' websites they are putting their songs onto their websites
for their fans to be able to remix and put the remixes back onto
the Internet and make them accessible and so on without using
a Creative Commons licence.
Q94 Mr Sanders: Can you see a time
when the norm will be that creators and performers take on the
role of being producers and publishers?
Ms Pike: That is happening already.
That is absolutely happening. I do not think that the record label
and music publishing roles are going to vanish completely; absolutely
not: but we are seeing a number of bands doing more and more themselves,
absolutely. Just to finish off on Creative Commons, my one problem
with the Creative Commons licences is that they do seem to value
copying and pasting and that kind of creativity above original
creativity. Their licences are geared so that if you create an
original work you sign a Creative Commons licence and you put
it out there. You basically give away your rights irrevocably
for the entire world, for the entire duration of copyright so
then other people can copy and paste it. For me the balance is
not right there.
Mr Ahlert: Could I just respond
to that because it is not entirely correct, because you can choose
different licences. There are different options you can choose.
In the UK more people have chosen to use a licence that does not
allow derivative uses of your work in the sense you mean—this
copy and paste creativity. There are a specific number of people
who chose the option that it should not be done to their work;
whereas I think 38% of the licences specifically allow for this
type of derivative usage of a song or text. I think it is very
much about generations. When I speak to my younger cousins they
can produce amazingly big Word document which crash my uncle's
computer because they have basically found too many images on
the Internet, and they copy and paste them into their homework.
This is reality and I am not attaching any kind of value judgment
to it. This is happening, and it is happening because it is a
rational thing to do. In some sense you would need to change the
basic functionality of many computers which allow for this type
of copying.
Q95 Chairman: I think we are going
to have to move on to our next session as we have a whole lot
more. Can I ask my colleagues whether anybody has any final questions
for this group of witnesses? No. Very quickly, David.
Mr Stopps: One of the things which
has just been touched on is whether performers and creators can
become publishers and record companies. One of the things which
is driving this is the digital rates that performers are getting
from the major record companies. In the physical world there is
a royalty of perhaps 20% of dealer price. The major record companies
are saying that should also apply in the digital arena. We all
know in the digital arena there are no manufacturing costs; there
is no making artwork; there are no lorries running round the country
delivering CDs; there are no warehouse costs. All those costs
are gone in the digital arena and yet they are still paying performers
this same royalty rate as in the physical world and are making
an absolute killing. I do not know what you as a Committee can
do about that, but it is a huge problem for us. We are getting
such a small part of the pie now that it is going to be difficult
for performers to make a living.
Chairman: I think you have put the case
for the performers very well this morning. Can I thank all four
of you very much. We will now move to our next session.
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