Memorandum 2
Submission from the Libraries and Archives
Copyright Alliance
INQUIRY INTO THE WORK AND OPERATION OF THE
COPYRIGHT TRIBUNAL
1. EXECUTIVE
SUMMARY
Our submission is based on issues raised in
the Review of the Copyright Tribunal which reported to the UK
Intellectual Property Office (UKIPO) in 2007.[1]
While LACA broadly welcomes the Review's recommendations, there
are, however, a number of points and recommendations we wish to
make, mostly, but not exclusively, relating to the Tribunal's
role with regard to Orphan Works. The other points relate to public
statements by licensing bodies, publication of decisions, costs,
budget and workload of the Tribunal, and proposals for a single
expert to represent both sides in a dispute.
2. LICENSING
BODIES' PUBLIC
STATEMENTS
We urge that the Copyright Tribunal extend its
scope to include hearing referrals made to it with regard to public
statements by licensing bodies in order to encourage clear public
mention of uses permitted by statute as well as uses for which
payment must be made.
3. PUBLICATION
OF DECISIONS[2]
We believe that full publication of all decisions,
not just brief summaries, should appear on the Tribunal's web
site.
4. COSTS AND
BUDGET
1. Cost of using the Tribunal potentially
impedes fair and equal treatment
The Tribunal's Decision on Costs in Universities
UK v The Copyright Licensing Agency (Interveners: Design and Artists
Copyright Society) (2002)[3],
exemplifies the potential financial burdens to those involved
in a case before the Tribunal. The potential for very high costs,
which cannot be calculated at the outset, is a significant disincentive
to many licensees and licensors referring cases to the Tribunal.
Notwithstanding the Tribunal's powers to award costs, those organisations
with the greatest financial resources enjoy a great advantage,
whereas the risk of high costs impedes fair and equal treatment
for others through access to the Tribunal. We urge that in future
the Tribunal ensures that genuine cases are not prevented from
being brought because of fears over costs.
2. Tribunal workload and budget
We urge that a workable mechanism be set out
to give warning if there is a danger of the workload exceeding
the budget available to the Tribunal, and that there be a strategy
in place to ensure that neither licensees nor licensors are disadvantaged.
5. ORPHAN WORKS[4]
1. General
(i) Given the significance of the recommendation
that the Tribunal should be given the power and responsibility
to license the use of orphan works, subject to appropriate amendment
of the Information Society Directive and the Copyright Designs
and Patents Act 1988 (CDPA), we would have preferred the Review's
consideration of the complex issues surrounding orphan works to
have gone into greater depth and detail. Furthermore, the Report's
recommendation seems incompatible with the Gowers Review's findings,
since the former appears to favour just a licensing solution,
whereas the latter favoured the exceptions solution.
(ii) The Report seems to have taken its
lead from a provision in CDPA s190 for orphan recordings of performances
under which the Tribunal can issue licences, and from the Canadian
approach under which the Copyright Board of Canada can issue licences.
It ignores the exception solution approach, which seems likely
eventually to be adopted in the USA and takes no account of the
other pre-existing provisions outlined below.
(iii) While we accept that a mixed economy
approach utilising licensing and diligent searches is the most
pragmatic, particularly with regard to mass digitisation projects,
we believe that in most other cases the exceptions option is preferable,
because it avoids the problems with licensing schemes, which we
summarise below. However, were the licensing option to be pursued,
we believe that the Copyright Tribunal should be responsible for
supervising the scheme(s) but that the licensing bodies are much
better placed to set up and run them.
2. Other existing provisions
(i) Under the Copyright Act 1956 and the
CDPA an unpublished literary, dramatic or musical work, together
with any illustrations, may be published and subsequently broadcast
without permission, provided: it is available to the public in
a record office or similar; it is at least 100 years old; it is
by an author who died at least 50 years ago; and its copyright
owner is unknown to the prospective publisher (CDPA 1988 Sch 1
para 16; Copyright Act 1956 s7(6, 7, 8, 9(d))).
(ii) CDPA also provides an exception allowing
the publication of an anonymous or pseudonymous work if the author
cannot be ascertained by reasonable enquiry and may be assumed
to have died over 70 years ago (CDPA ss57, 66A as amended). Although
not strictly an orphan works provision it shows the application
of an exception solution.
(iii) There are already nine other sets
of circumstances in which some sort of compulsory licence applies
or can be issued (see Copinger and Skone James on Copyright
(15th edition) chapter 29), none of which is referred to in
the report. In several of these there is no involvement of any
body in the issue of licences, in others there is involvement
of a person (the Secretary of State, the Comptroller), and in
only two is there a role for a judicial or quasi-judicial body.
The Tribunal has at times a role in considering the fees that
are payable.
3. The Licensing solution
(i) The licensing solution presents significant
problems with regard to unpublished works. Firstly there is the
issue of the duration of copyright in unpublished works in the
UK (to 2039 at the earliest, no matter how old they are). Secondly
because the issue of the large quantities of unpublished works.
Thirdly the likelihood of a rights owner appearing is in most
cases non-existent, so that the Tribunal would be building up
a very substantial fund of fee income of benefit solely to the
Exchequer.
(ii) The cost of running the licensing scheme
and maintaining the funds would be increased by the need to maintain
information about the licences issued so that any payments could
properly be made. An exception solution or a solution using existing
reproduction rights organisations would be considerably more cost-effective
than the use of the Tribunal and an exception solution is the
only one appropriate to unpublished works.
(iii) If a licensing scheme were to operate,
it would need to have a quick turnaround (say 10 working days)
and be able to deal with large numbers of requests.
4. The Exception solution
(i) Responsibility for defining reasonable
search: The Review also recommends that the Tribunal, rather
than the Intellectual Property Office, be responsible for the
preparation and issue of guidance on what would be a reasonable
search for the owner of the rights in an orphan work. Not only
was this not the conclusion of the Gowers Review, but we do not
believe this is appropriate. In our view such matters seem more
suitable for a policy body than for the Tribunal.
(ii) Proof of diligent search and proof
of right ownership: In the interests of a fair balance, we
believe that if rightowners require proof that a diligent
search was undertaken (and there needs to be clarification on
what constitutes a diligent search), those who are using the content
should have the right to ask for proof that that the copyright
owner is indeed the current owner of the rights. Therefore attention
needs to be given as to how that could be achieved.
(iii) Protection for genuine efforts:
There must be protection for people who have genuinely striven
to obtain clearance from action being taken against them, so long
as a set of criteria is met. Users need legal certainty about
the extent of their exposure to liability in the event of the
rightowner surfacing in the future.
(iv) Cap on rightowner charges: Ideally
there should be a cap would be put on the amount of compensation
that could be charged by the rightowner. Failing that criteria
should be set out in order to judge whether the fees are unreasonable,
and therefore a statutory licence be issued at a predetermined
rate in those circumstances.
(v) Unjustifiable threats of proceedings:
Unjustifiable threats of infringement proceedings should be
treated in the same way as under s70 of the Patents Act. The Copyright
Tribunal should be able to adjudicate in any such cases.
(vi) Reliability of database: If
there is to be reliance on a database, people should not be penalised
for relying in good faith on such a database if it turns out that
the information is inaccurate or out of date.
6. ABOUT LACA
LACA: the Libraries and Archives Copyright Alliance,
is convened by CILIP: the Chartered Institute of Library and Information
Professionals. LACA brings together the UK's major professional
organisations and experts representing librarians and archivists
to advocate a fair and balanced copyright regime and to lobby
about the copyright issues affecting the ability of library, archive
and information services to deliver access to knowledge in the
digital age.
January 2008
1 http://www.ipo.gov.uk/ctribunalreview.pdf Back
2
http://www.ipo.gov.uk/ctribunal/ctribunal-decisionorder.htm Back
3
http://www.ipo.gov.uk/ctribunal/ctribunal-decisionorder/ctribunal-decisionorder-20002003/ctribunal-decisionorder-20002004-uukvcla.htm Back
4
See also LACA's Statement on Orphan Works of 19 December 2007
http://www.cilip.org.uk/policyadvocacy/copyright Back
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