Written evidence submitted by the British Film Institute (BFI)

1. Executive summary

This submission is made by the British Film Institute (BFI), the Government’s lead agency for film.

The BFI welcomes both the Hargreaves Report and the Government’s response to the recommendations in the Hargreaves report. We believe that the UK needs an intellectual property regime that maximises public access while protecting effectively the interests of rights holders.

The proposals to make orphan works legally available, and those to help make available works (via Extended Collective Licensing) where rights are currently blocked are extremely welcome. Taken together will enhance public access to films and moving images in an equitable way.

We strongly welcome most of the proposed copyright exceptions, including the one that allows archives to legally copy material that they hold. We look forward to seeing further detail on the proposed private copying exception. However we would also like to see the Government commit to introducing the educational exceptions which were proposed by the Gowers Review of Intellectual Property but which were outside the terms of reference of Hargreaves.

The BFI very much welcomes the idea of the Digital Copyright Exchange (DCE) and is keen to play a significant role in helping to establish this initiative – for example by making material that it holds available for inclusion in the DCE.

We strongly welcome the announcements that the Government made regarding the need to protect intellectual property online through the Digital Economy Act. These measures are important to help protect investment – including public investment – in films and moving images. We look forward to the relevant provisions of this Act being implemented by Ofcom as soon as possible.

2. Detailed comments

A dynamic knowledge economy requires a regulatory framework that enables the UK to benefit from all the advantages of the digital age and the Hargreaves Review and the Government’s response to the Hargreaves Review brings that a step nearer. The BFI remains committed to the basic principles of the existing copyright system but we are heartened to see the introduction of measures which balance the rights of creators and investors with the opportunities to significantly expand access to film in all its variety in a digital era.

We welcome too the Government’s commitment to an evidence-based approach to the intellectual property regime (as recommended by Hargreaves), and we look forward to working with Government and others in the creative industries to create a framework fit for the times we live in.

In particular we have the following comments:

i. Orphan Works

We believe in unlocking the value of orphan works to provide as much public access and commercial use as possible, so we very strongly welcome the provision recommended by Hargreaves and supported by Government. It will be beneficial to the public, archives across the UK (including the BFI National Archive), researchers, academics, and innovators. We also look forward to seeing the Government’s proposals on Extended Collective Licensing which could help address rights blockages which currently prevent some works being made legally available.

ii. The Digital Copyright Exchange

We are very pleased that the Government has accepted Hargreaves’ recommendation that a Digital Copyright Exchange should be created to help facilitate copyright licensing. As the Government observes, to be successful, such an Exchange will need to create value for both purchasers and sellers of rights. We note that the Government is encouraging public bodies to make material they own available via the Exchange as soon as it is set-up and the BFI looks forward to discussing with Government how we can contribute material which we own and data we hold to the Exchange and others ways in which we can assist in contributing to this valuable initiative.

We are especially interested in ways in which the Exchange could help to ensure that independent companies which own rights to British films are able to make their films more easily available to the benefit of the public. In many cases, the public (taxpayer and lottery player) has contributed to the cost of financing these films.

iii. Copyright Exceptions

We strongly welcome a number of the new exceptions which Hargreaves – and now the Government - is now proposing to incorporate into UK law.

The BFI holds the UK’s collection of film and television material, much of which is very fragile and in constant need of care. We own less than 1% of the material and this makes preservation through copying difficult from an access and legal point of view. We therefore strongly welcome the exception being proposed that will freely allow us, and archives throughout the UK, to legitimately make copies of the material we care for, without having to secure permission from the rights owner each time.

The support for legalisation of text and data mining - which would allow researchers, including those working in film scholarship for example, to analyse electronic information far more rapidly - is very welcome and the exception allowing reproduction for non-commercial research should be helpful.

With regard to the exceptions generally – particularly the proposed exception on private copying as it applies to film - the devil will inevitably be in the detail and we look forward to contributing to the thinking which will help design these exceptions so that the public’s ability to access film is enhanced without damage to the legitimate interests of rights holders.

The Hargreaves Review’s brief was focused on economic growth and therefore did not consider the educational exceptions which were proposed as a consequence of the Gowers Review of Intellectual Property published in 2006. These exceptions include one allowing audiovisual material to be used in a distance learning environment. This is something that the BFI would now like to take up with Government with the aim of exploring how legitimate educational access in schools (primary and secondary) can be radically improved in an age when film material is increasingly stored in "the Cloud".

Copyright infringement and theft

The BFI also welcomes the announcements by Government regarding the next steps for the implementation of the Digital Economy Act (DEA) in respect of measures to curb online copyright infringement. It is crucial that rights holders are able to make their films and moving images available to the widest possible audiences secure in the knowledge that there is a robust legal framework in place which is designed to significantly reduce copyright infringement and theft – both online and offline. As an organisation which invests public money in the production, distribution, exhibition and archiving of films, the BFI is keenly aware that copyright infringement and theft is damaging to the interests of citizens generally as well as to rights-holders and the creative community. We wish to see rapid implementation of the measures to significantly reduce online copyright infringement that are contained within the Digital Economy Act.

5 September 2011