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Written evidence submitted by DACS

DACS welcomes the opportunity to contribute to the Business Innovation and Skills Select Committee inquiry into the Review into Intellectual Property and Growth conducted by Professor Ian Hargreaves.

1. About DACS

Established by artists for artists, DACS (the Design and Artists Copyright Society)  is an innovative visual artists’ rights management organisation, representing over 60,000 creative individuals including fine artists, photographers and illustrators from the UK and abroad. We are a not-for-profit organisation and our mission is to translate rights into revenues and recognition so that artists and their works are properly valued. We provide three rights management services for artists: Payback, Artist's Resale Right and Copyright Licensing.

2. The consultation process

DACS feels that the Hargreaves team did not consult as widely as they could have done and particularly neglected to engage with the visual arts sector. This is reflected in the ‘one size fits all approach’ taken in the Review’s recommendations to extend copyright exceptions, without due consideration of how the impact of widening such exceptions differs between sectors. For example, exceptions for private copying and parody will impact visual art in a very different way to music and films. Furthermore, the consultation process failed to engage adequately with the issues facing creative individuals who constitute the majority of visual arts rightsholders.

3. Evidence

The published Review of Intellectual Property, and the Government’s response to the Review have supported a call for stronger evidence in policy making. It was disappointing therefore to find many of the Review’s recommendations supported by anecdotal evidence at best. For example, the arguments for a parody exception were not backed up by any evidence to support the assertion that: "Video parody is today becoming part and parcel of the interactions of private citizens, often via social networking sites, and encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy. Comedy is big business." 1

4. Orphan works

We must express our concern regarding the recommendation to provide for only nominal rates for the use of orphan works. This will create a two-tier tariff system for orphan works and non-orphan works thereby undermining existing primary markets. Rather than the proposed nominal fee, we believe that a commercial fee should be applied. There also needs to be acknowledgement that in many cases, non-commercial organisations use orphan works in a commercial way. Therefore, commercial fees would be most appropriate.

5. Fair use

It was widely understood that a key element of the Review was to test the viability of a system of fair use being introduced into the UK. While the Review did not take forward this recommendation, it did introduce the concept of ‘non-consumptive use’, part of the fair use doctrine. The Government should consider carefully the implications of a data and text mining exception which, coupled with exemptions for ‘non-consumptive use’ and ‘non-commercial research’ could inadvertently clear the way for undermining commercial licensing requirements for corporate search engines such as Google and Facebook. Noting that the Review highlights the potential problems and uncertainty caused by the introduction of a fair use exception, the Government should resist implementing single fair use elements like non-consumptive use without any corresponding balancing mechanisms. The above has heightened perceptions that the Review was unfairly biased from the outset towards the interests of large corporate media entities such as Google and Facebook.