Memorandum 15
Submission on behalf of the Universities
UK-Guild HE Copyright Group
THE WORK AND OPERATION OF THE COPYRIGHT TRIBUNAL
1. The UUK-GHE Copyright Group is responsible
for the negotiation of educational licences on behalf of Higher
Education Institutions (HEIs), with both the Copyright Licensing
Agency (CLA) and the Educational Recording Agency (ERA). This
submission is based on over 20 years of experience in negotiating
these licences, and more specifically the experience of having
brought the references to the Copyright Tribunal which resulted
in its decision in UUK v CLA (2001).
2. The main point we wish to make is that
the working of the Copyright Tribunal (CT) cannot be considered
in isolation from its functions within the UK copyright system.
Its central role is to help to maintain an appropriate balance
between rights-owners and users of copyright works, specifically
in contexts where the law provides rights for users subject to
reasonable remuneration for owners. This is especially important
in the area of educational use, which we assume will be of special
interest to the Committee.
3. In our view, the problems for the CT
are caused by the UK statutory framework for licensing, which
leaves the conclusion and administration of licences to bilateral
negotiations between organisations representing users and rights-owners.
This creates an adversarial context, and places the burden on
the CT of resolving conflicts. However, the CT's procedures are
quasi-judicial and therefore also essentially adversarial, which
makes it very difficult for it to provide a quick and cost-effective
service. The Recommendations in the IPO's Report would certainly
go some way to improving matters, but in our view the fundamental
problems would remain the same.
4. Our preference would be for a recasting
of the statutory framework for licensing for educational purposes,
by establishing an Educational Licensing Agency (ELA). As we outlined
in our evidence to the Gowers Review, this would be a cost-effective
solution, since (i) this Agency would simply take over functions
from existing collecting societies, and hence (ii) it would be
funded (as they are) from a top-slice of the fee revenues. Establishing
the ELA with a Board including representatives of both users and
rights-owners, as well as independent experts, would make it much
better able to strike the appropriate balance between rights of
use and of remuneration, in a continuous and detailed way.
5. Our evidence to Gowers pointed out that
this is increasingly important in the era of digital communication,
due to (i) the rapid technological changes, and (ii) the much
wider range of potential uses of copyright works. Both these factors
mean that new issues are constantly arising, which are not anticipated
by fixed regulatory arrangements. We cited as an example the statutory
exemption for educational recording and use of broadcasts, which
was amended in 2003 in line with the European "Information
Society" Directive, but still leaves major grey areas such
as whether it is permissible to record and use for educational
purposes a BBC programme from its "Listen Again" service.
6. Licences are somewhat more flexible than
legislation. However, our experience is that issues of interpretation
constantly arise, which if the parties agree can be dealt with
by User Guidelines. Unfortunately, however, it is not always possible
to reach agreement. This can leave areas of uncertainty which
undermine the security on which blanket licensing relies for credibility.
A recent example is the interpretation of the limitation of the
repertoire of the CLA's Trial Scanning Licence for HE to works
`published in the UK', as applied to multinational publishers.
The CLA introduced a significant change to the agreed guidelines
interpreting this definition in September 2007, just at the beginning
of the academic year. Since many licensees had already scanned
material for the forthcoming session in reliance on the published
guidelines, this created considerable uncertainty, which has persisted.
Yet this type of issue hardly seems appropriate for a reference
to the CT, nor even for alternative dispute resolution procedures.
7. Clearly, the CT is not designed to be
a referee in the continuing interactions between users and rights-owners,
but an adjudicator of last resort. In our view, it would be much
more able to perform this role if the licensing societies were
designed as bodies which could try to strike the best balance
between users and owners, so that the CT would only have to deal
with appeals from (in stricter legal terms, reviews of) their
decisions.
8. The Committee may feel that this goes
beyond the immediate remit of improving the operation of the CT.
If so, we suggest as an alternative (not our preferred option),
that the role of the CT should extend to supervising the work
of the licensing societies, and their governance. It could do
so by issuing Directions or Guidelines, to cover matters such
as the scope of licence indemnities, survey methodologies, distribution
arrangements, consultations with users, and so on. To facilitate
this, its staff should play a more active part in monitoring the
processes of negotiating and administering licences. This is likely
to mean some expansion in the number of staff, and consequently
an increase in costs.
9. This is an important reason why our preferred
option is that the licensing societies themselves should be restructured,
to provide a framework to facilitate continuous accommodations
between the views of users and rightsowners. As we have outlined,
the private bargaining model in the present UK legal framework
for licensing creates an adversarial environment, which we consider
that the reforms of the CT's procedures would not ameliorate.
January 2008
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