Memorandum 9
Submission from the Authors' Licensing
and Collecting Society (ALCS)
THE WORK AND OPERATION OF THE COPYRIGHT TRIBUNAL
EXECUTIVE SUMMARY
Our evidence sets out our comments on the work
and operation of the Copyright Tribunal under three headings:
fairness and balance; efficiency and resource; accessibility and
remit.
To a great degree the evidence in this submission
responds to the recommendations included within the Copyright
Tribunal undertaken last year by the IPO ("the IPO Report").
In the view of ALCS the review was thorough and timely piece of
work and the IPO Report made a number of useful and progressive
suggestions.
ALCS are grateful for the opportunity to contribute
to this review and would be happy to provide further input into
the inquiry as required.
Fairness and Balance
In a digital use environment the demand for
large-scale rights clearances offered by licensing bodies is likely
to increase. It is therefore vital that the Tribunal applies a
fair and balanced approach to dealing with user groups and licensing
bodies. ALCS supports strongly the IPO Report recommendations
aimed at placing Licensing bodies and Licensees on a more even
footing in their dealings before the Tribunal.
Efficiency and resource
ALCS also supports strongly the IPO Report recommendations
aimed at making the Tribunal more efficient in terms of cost,
time and processes, such as the adoption of the standard civil
procedure rules and the institution of a more permanent, specialised
staff.
Accessibility and remit
In certain cases, where the full resource of
the Tribunal may be unnecessary or inappropriate, ALCS queries
the need for a second tier of dispute resolution services—particularly
with a view to finding a service better suited to the needs of
an individual creator. We also suggest that the proposal in the
IPO Report to extend the powers of the Copyright Tribunal to the
licensing of orphan works may require further consideration.
1. INTRODUCTION
1.1 The Authors' Licensing and Collecting
Society Limited ("ALCS") is the UK rights management
society for writers of all genres of literary and dramatic copyright
works including fiction, journalism, plays, poetry, academic texts,
TV and radio scripts and story-lines, dramatisations, translations,
abridgements and adaptations.
1.2 In addition to being a licensing body
in its own right, ALCS is also a member of the Copyright Licensing
Agency (which it founded together with publishers 25 years ago
to provide a pragmatic means for the licensing of published works)
and the Educational Recording Agency. On behalf of almost 60,000
writers ALCS is able to provide a broad mandate to CLA and ERA
to cover a vast repertoire of written/scripted works for inclusion
in licensing schemes. Since its foundation in 1977 ALCS has distributed
over £160 million to writers, the majority of which has been
licensed through CLA and ERA. Over the years the testimony of
our members has revealed the importance to writers of these additional,
"secondary revenue streams". We support strongly the
evidence submissions made by CLA, ERA and the British Copyright
Council to this inquiry.
1.3 The proliferation of digital technology
has upset the balance between rights-holders and users, as opportunities
to obtain creative works "for free" have increased.
Recent research by Bournemouth University[19]
highlighted the struggle professional writers face to make a living
from their work, suggesting their annual earnings are falling
in real terms, with typical earnings down at less than two thirds
of the national average wage.
1.4 In this challenging environment support
for the rights of creators is more vital than ever if they are
to sustain their role as drivers of the creative industries, providing
the raw materials for a sector contributing 7.3% to the economy.[20]
Aside from offering access and compliance to users of copyright
works though the provisions of licences, licensing organisations
play a key role in obtaining fair remuneration for creators (on
terms that they would be unable to secure on an individual basis).
It is therefore vital that the Copyright Tribunal provides a fair
and effective framework for the resolution of disputes involving
copyright licensing schemes, to safeguard the legitimate interest
of the creators represented by licensing bodies in receiving a
fair return for the use of their work.
2. FAIRNESS AND
BALANCE
2.1 The role of the Copyright Tribunal is
to ensure that licensing arrangements strike a fair balance between
the interests of rightsholders and those that seek to make use
of their protected works. The IPO Report noted the need to preserve
this balance in the face of emerging technologies, "As the
means to copy and diffuse copyright material grow and become easier
to obtain, so the collecting societies become more important in
obtaining appropriate recompense for their members".[21]
The same chapter of the IPO Report acknowledges
the role played by licensing societies in supporting rightsholders
(irrespective of their economic status) and upholding the right
of creators to receive a fair reward from the use and re-use of
their works.
2.2 To enable licensing organisations to
represent effectively and, where necessary defend, the interests
of rightsholders, ALCS wholeheartedly supports the recommendation
in the IPO Report that the Tribunal should be balanced in its
approach to each party in any matter referred to it. This is clearly
a guiding principle for any arbitrating body, and we feel that
balance is particularly important at a time when technology allows
for unprecedented levels of access to copyright works.
2.3 This application of a balanced approach
also needs to recognise the relative strengths, particularly in
commercial terms, of the parties that are likely to appear before
the Tribunal. Licensing societies are generally run on a not-for-profit
basis with excess funds applied in lowering member ommissions.
Conversely the blanket nature of many licensing schemes means
that licensees will often be large organisations or the representative
body of an entire licensed sector, and will therefore be well
equipped to deal with the Tribunal process.
2.4 As a specific measure ALCS strongly
supports the proposals set out in the IPO Report to bring the
position of licensing societies into line with licensees, who
already have the right to refer existing or proposed licences
and schemes to the Tribunal.[22]
Aside from the fairness argument, this facility may be particularly
useful in resolving long-standing difficulties during the licence
negotiation process, thereby reducing the financial and resource
burden for both parties and strengthening the overall credibility
of the licensing framework.
2.5 Finally under this heading we support
the recommendation in the IPO Report that challenges to the terms
of a licence (or the sampling systems underpinning it) should
be based on fact.[23]
The Gowers Report noted that copyright in the UK suffered from,
"a marked lack of public legitimacy".[24]
Part of the process of re-establishing this legitimacy is to ensure
that the reasoning behind copyright licensing schemes is clearly
understood and that challenges cannot be made, for example, on
the basis that other parties within a licensed sector have resisted
the offer of licensing.
3. EFFICIENCY
AND RESOURCE
3.1 On the basis that costly delays in the
Tribunal process ultimately impact on the revenue available for
distribution to rightsholders, ALCS welcomes the suggestion in
the IPO Report to abandon the Copyright Tribunal Rules (1989)
in favour of the Civil Procedure Rules and Practice Directions,
in addition to the other measures referred to in the report aimed
at adding efficiency to the hearings process.[25]
3.2 As to the question of resource we agree
with the IPO Report proposals to centralise the Tribunal with
a permanent staff based in London, under the direction of a salaried
president/chair. Regarding all staff and members of the Tribunal
we stress the importance of acquiring and maintaining the "bank
of knowledge" referred to in point 8.14 of the Report, and
feel that this must also extend to an understanding not simply
of the mechanics of the licenses and schemes but also the underlying
rationale behind them, and the relationship between the licensing
societies and their members.
4. ACCESSIBILITY
AND REMIT
4.1 Even if the various measures suggested
by the IPO Report are adopted and implemented, the Copyright Tribunal
will remain a forum for the hearing of disputes between licensing
bodies and users/their representative bodies. Individuals, such
as authors and performers may often be unable or unwilling to
pursue costly litigation to resolve disputes. The Select Committee
may wish to consider what structures or services may be developed
or devised to fill this gap in the current system.
4.2 Aside from the recommendations concerning
operational matters, the IPO Report also suggested that the Tribunal
take on a new function as the body responsible for granting licences
for the use of orphan works.[26]
In carrying out this function the IPO Report envisaged that the
Tribunal would assume responsibility for issuing guidelines on
matters such as the definition of a reasonable search prior to
the classification of a work as "orphan".
4.3 This new function is premised upon an
amendment to the European Copyright Directive, enabling the implementation
of an orphan works use exception in UK copyright law. As it is
likely that considerable time may elapse before this could take
place, ALCS suggests that, in the interim, licensing bodies and
other interested parties could usefully work with the IPO to investigate,
among other things, the actual extent of the demand for use of
orphan works, the form of guidelines for search processes and
the extent to which existing databases may be developed to provide
access to information to assist in the identification and location
of rightsholders. In this way a resolution may be found more quickly
to an issue seen by some as a serious problem with the current
copyright regime, leaving the Tribunal to adjudicate in areas
not covered by any resulting rules and licensing schemes.
January 2008
19 http://www.cippm.org.uk/publications/index.html Back
20
Staying ahead: the economic performance of the UK's creative
industries (DCMS). Back
21
UK-IPO Review of the Copyright Tribunal, paragraph 4.6. Back
22
UK-IPO Review of the Copyright Tribunal, paragraph 9.7. Back
23
UK-IPO Review of the Copyright Tribunal, paragraph 7.23. Back
24
Gowers Review of Intellectual Property, paragraph 3.26. Back
25
UK-IPO Review of the Copyright Tribunal, Chapter 7. Back
26
UK-IPO Review of the Copyright Tribunal, Chapter 12. Back
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