Written evidence submitted by the National Union of Journalists (NUJ)

 

The NUJ represents 35,000 journalists who supply words, pictures and editing skills to publications and broadcasters in the UK and Ireland.

 

We draw the Select Committee’s attention to our initial public response to the Hargreaves Review;1 to our support for the submission to that Review by the Creators’ Rights Alliance; and to the supporting data we supplied in confidence to the CRA demonstrating the extent to which the "playing field" on which individual freelance journalists negotiate fees for the use of their work is tilted.

Since then, some more detail has emerged about the most controversial of Hargreaves’ proposals – the so-called "Digital Copyright Exchange" – and this short submission will focus on this, its implications and the new considerations these raise.

Our headings:

ñ The Digital Copyright Exchange

ñ Orphan works

ñ Non-consumptive use

ñ The limits of extension

ñ Matters of governance

The Digital Copyright Exchange

Some appear to harbour hopes that the DCE will embed a legal doctrine of "extended collective licensing" in the UK. Some, indeed, want to change the whole nature of copyright so that the author’s or performer’s consent is no longer required before use is made of their work – rather a "compulsory licence" would apply with some unspecified right of remuneration. The idea is presented with superficially seductive images of a frictionless market in creators’ works, enabled by "one-click licensing".

But this idea has not been thought through even to the first step. The case of journalistic works provides a particularly sharp example of this.

For all the faults of some journalism, conscientious, independent and accurate reporting by professional specialists remains a prerequisite for a functioning democracy. Bluntly: citizens would have no basis to decide how to vote, were they deprived of a diversity of such journalism.

The feasibility of this depends on many things: one of those is the requirement for those conscientious, independent journalists to defend their reputations. The NUJ’s Code of Conduct – the model for all the other Codes – requires of journalists that they do not:

by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of [their] own work or of the medium by which [they are] employed.

If a journalist’s work were to be "one-click licensed" by any advertiser, let alone a purveyor of dangerous goods or their least-favourite political party, that could end a career and would certainly undermine public confidence in news reporting.

Before any form of collective licensing is implemented, then, it is an absolute requirement that the "moral rights" to be identified as author of a work and to object to distortions of that work – whether by corruption or context – are made enforceable for the benefit of all who distribute creative works. The Select Committee may not be aware that a quirk of the Copyright Designs and Patents Act 1988 excludes from these essential rights works that report news and current affairs – and of all citizens and creators, who has more need to ensure identification and integrity than those who do such reporting?

The DCE may turn out to be simply a means for would-be users of journalists’ work to contact those from whom they must seek permission for the proposed use.

In this context we welcome the implication in the government’s response to Hargreaves that registration of works with the DCE would not be subject to charges, and seek confirmation that this is policy. Any other move would be discriminatory against those – such as journalists – who typically produce many hundreds of "works", whether texts or images, each of relatively small cash value, in the course of a year.

But a broader DCE would have much wider implications: see below.

Orphan works

It is also necessary for the NUJ to make it plain that if there is to be any provision for the licensing of so-called "orphan works", then one absolutely necessary concomitant to this is, again, the extension of enforceable "moral rights" to all creators, including journalists.

The crispest of the many arguments for doing so is that to do otherwise would ensure that many more works were made "orphan" in the future.

Non-consumptive use

Another of the preconditions for the best of journalism to make its essential contribution to the functioning of democracy is that journalists be able to make a living as independent, full-time professionals.

Some 8000 of the NUJ’s members are those most independent of creatures, freelance journalists, and depend directly on the enforcement of copyright in their work to make a living. All depend on the economic viability of the publications to which they submit their work.

Though the discussion of "non-consumptive use" in the Hargreaves report is framed in terms of the possibility of systems that trawl through the medical research literature and suggest new avenues of research, analysis indicates that it is something quite different: it is, in fact, a charter for internet search engines and internet advertising brokers to make extracts of works available to the public without permission or remuneration – and thereby to drain income from those who create and edit news reporting. This poses severe risks to the "information economy".

One very large company that does both is currently under investigation by both the US and EU for possible abuse of a dominant position in the online advertising market. These investigations must consider whether Google’s practices tend to strangle the very provision of original "content" on which it depends for its considerable income.

No "non-consumptive use" provision should be made until these investigations are complete, unless it is extremely tightly drafted to extend only to publicly-funded and publicly-accountable academic research.

The limits of extension

The "extended licensing" model poses the risks to the independence and economic viability of journalism that we note above, as well as others which we will describe on request.

Clarity over the distinction between "primary use" of a work – for example first publication in a magazine – and "secondary use" such as photocopying is essential to evaluating such proposals.

The NUJ insists that:

1) The only case in which "primary use" could be permitted without express authorisation of the author – that is, under an "extended licence" – is in a scheme for dealing with the case in which the author genuinely cannot be identified or located: the case of "orphan works". The other safeguards laid out in the Creators’ Rights Alliance and British Copyright Council submissions to Hargreaves are also essential requirements for such a scheme.

2) The case for "extended licensing" has been made strongly by organisations such as the BBC and the British Library, wishing to make their archives of already-published material available – a "secondary use". Some of the requirements for such a scheme to be considered are:

a. that it be restricted to non-profit use by a reputable public-service archive organisation;

b. that it not include previously un-published works, for reasons set out in our earlier submissions;

c. ensure that there is no possibility of infringing the right of integrity in the work through the location of its use – which means prohibiting sub-licensing to third parties and technical measures to make it difficult to "embed" BBC or BL content in others’ websites, for example;

d. specify that said reputable organisation make visible alongside every work used in this way a strong warning to users about the need to contact the author before making any further use;

e. specify that authors shall be clearly identified alongside every work used; and

f. be subject to said reputable organisation making equitable remuneration available to authors, on the model of Public Lending Right, to compensate for the loss of income from re-licensing a work that is now publicly available.

Matters of governance

It is necessary to re-iterate here points that the Creators’ Rights Alliance made on the NUJ’s behalf to Hargreaves about the governance of collective licensing systems:

· Collective licensing provisions must be structured so as not to preclude true micropayment systems developing later;

· That is, a part of the creative ecology must include support for platforms and ways to market for individual creators;

· They must not undermine fees for primary commissions of creative works;

· Collective licensing is acceptable only with provisions to ensure that actual creators get rewarded;

· They are acceptable only when administered by bodies that are truly representative of the creators affected – who are in most cases owners of the material which it is proposed should be traded; and

· They must be transparent in their accounting.

The transparency requirement, in fact, should apply to business models that in some ways emulate collective licensing. Spotify, for example, does not operate to the satisfaction of independent record labels.

The requirement that such systems be administered by bodies that are truly representative of the creators affected is an essential feature of legislation in the Nordic countries that have implemented such systems – not an optional extra. If creators are asked to relinquish the exclusive control over the use of their works guaranteed them by international and European law, they must control the mechanism that compensates them for this; any legislation that provided otherwise would be open to challenge in international forums.