Memorandum 3
Submission from the Society of College,
National and University Libraries
INQUIRY ON THE WORK AND OPERATION OF THE
COPYRIGHT TRIBUNAL
SCONUL (Society of College, National and University
Libraries) is an association representing the heads of library
and information services in all the universities in the UK and
Ireland (and in most other institutions of higher education in
the UK), together with the directors of the national libraries
of the UK and Ireland.
EXECUTIVE SUMMARY
The Copyright Tribunal is a vital part of the
UK's copyright regime. The digital age has brought new and exciting
uses of copyright material, and with increased exploitation of
copyright works, the Tribunal's work is likely to increase. We
discuss various proposals put forward in the recent review of
the Tribunal, supporting those most likely to make it more efficient
and accessible. We suggest a copyright ombudsman to assist in
the Tribunal's role. We do not believe the Tribunal should be
involved in the question of orphan works.
EVIDENCE
1. Copyright aims to support creativity
by rewarding creators. The prices for the use of copyright material
are determined by the market, but copyright material is by definition
a monopoly product (being based on an exclusive right), so the
market is imperfect. The Copyright Tribunal provides solutions
in cases of disagreement over price. It is essentially a safeguard
for a would-be-user who believes the price set by a rightholder
is too high. As to whether the complainant or the rightholder
is correct in their view of the price, the Tribunal has no presumption
either way.
2. Current legislative and administrative
structures are built around a long tradition that copyright disputes
occur between businesses. In the electronic age this tradition
has been shaken. Educational and cultural institutions, and private
individuals, are increasingly engaged in the distribution of creative
works. The Copyright Tribunal is an important safeguard for them,
but it could be made more effective as its workload inevitably
increases.
3. Because the Copyright Tribunal was recently
reviewed formally, a good reference point for our evidence is
a brief discussion of the findings of the review. We applaud the
aim of the review of the Tribunal: to simplify its procedures.
We specially approve its recommendation 5, since rational and
open licensing schemes will be less susceptible to dispute.
4. We believe that the Tribunal needs to
be as available as possible. Consequently we disagree with several
proposals of the review. A restriction on oral evidence would
tend to restrict references to those bought by wealthy complainants.
Above all, as the review recognises, the proceedings of the Tribunal
need to be less costly. This could be achieved by strong case
management allowing cases to be settled in 5-7 days.
5. The idea of Tribunal officials assisting
with surveys on behalf of the different parties seems to us to
add to an undesirable level of complexity and to difficulties
as to impartiality. Similarly the review's recommendation of a
single expert to represent the views of both sides is an implausible
solution. Removal of lay members would make the Tribunal less
able to adjudicate, in our view, since expertise in law needs
to be complemented by knowledge of how copyright restrictions
operate in field.
6. Recourse to the Tribunal could be avoided
more easily if there were a Copyright Ombudsman to help regulate
the operation of collecting societies. Government regulation is
unpopular, but the Tribunal is a more elaborate regulator than
will often be needed. The need for regulation arises because,
unusually in the business world, right-holders have the full weight
of a statute behind them when they collect their revenue. They
can quite reasonably threaten legal proceedings if a licence is
not agreed.
7. But their statutory backing sometimes
tempts them to make exaggerated claims about their powers. For
example, literary critics have been coerced into paying royalties
for the reproduction of parts of copyright works, even when the
critical use is permitted by an exception to copyright. Contrary
to natural justice, a collecting society has been known to demand
payment for hypothetical infringements in the past as a condition
of granting a licence for the future. Failing specific statutory
protection for consumers (for example, we believe it is an offence
to make an unjustified threat of action alleging infringement
of a patent), an ombudsman could settle such questions quite simply.
Then the unusual level of statutory backing for right-holders
could be matched by a defence mechanism for users of copyright
material.
8. Finally we do not agree that the Tribunal
has a role to play in providing a solution to the problem of orphan
works. In this regard we support the arguments of the Libraries
and Archives Copyright Alliance, of which SCONUL is a member.
January 2008
| 
