Hargreaves Review of Intellectual Property

Written evidence submitted by BECTU

1. BECTU is the trade union for workers in the audiovisual and live entertainment sectors. Nearly half our members are freelancers and a significant minority (including producers, directors, set designers, costume designers, art department, animators, stills photographers and visual artists) potentially have copyright in their work. We therefore have a close interest in policy on intellectual property.

2. We are disappointed that the Review by Professor Hargreaves and his recommendations have failed to address a number of issues of very real concern to individual creators of copyright protected works, such as unfair copyright contracts and the weakness of moral rights legislation in the UK. Our comments on the Government’s response to the relevant recommendations made by Professor Hargreaves follow.

Evidence should drive policy

3. In BECTU’s response to the Review we flagged recent and authoritative research carried out by the film and television sector and as part of that sector we look forward to co-operating with Government on any future research programme.

4. There are, however, difficulties inherent in any attempt to define or to research the creative, cultural heritage, media and copyright industries. Difficulties which have long been recognized by industry, researchers and Government such as the irrelevance of established SIC codes and the overlaps between our industries. Government must take a lead in establishing standards for industry research if it wants to see good-quality evidence which is of value to the sector and can be compared with what is already available for other sectors within the UK economy.

5. We would also like to see greater recognition of the difficulties which SME’s and individual right holders and those who represent them face in carrying out research, not least in terms of funding. By focusing on "headline" figures such as economic value to the UK economy, Government rarely sees more detailed research finding which indicate the needs, interests and contribution made by those at the bottom of the value chain i.e. the creative individuals and SMEs on who the success of our industries depend.

· International Priorities

6. The UK film, TV and entertainment industries are world renowned. We therefore welcome the Government’s recommendations for international priorities.

Digital Copyright Exchange

7. The Government’s proposal for a Digital Copyright Exchange is an interesting one and BECTU looks forward to participating in its development. We are also interested in hearing how Government thinks the DCE can function successfully in the film and television industries, given the involvement of multiple contributors and right holders, complex chains of rights, global transfers and a market which is dominated by the USA. We are also interested in how the DCE could operate across all our creative and cultural industries. We do not think that a "one size fits all" solution is the answer.

8. Bearing these issues in mind, we think there is potential for a DCE which fulfils a "signposting" function e.g. by directing potential licensees to right holders but not for a "one stop shop" which would provide a full rights clearance function e.g. by setting or negotiate prices on behalf of right holders.

9. We also note the very ambitious deadline for this project.

Copyright Licensing

· Cross-border licensing

10. The film and TV industry already functions effectively across borders but we look forward to commenting on the forthcoming Commission proposal and to contributing to UK thinking on this.

· Orphan Works

11. BECTU supports the BCC’s proposal on orphan works licensing.

12. We do, however, have a number of concerns which must be addressed before any orphan works licensing can be permitted. These include: - clearer definition of what is an orphan work, due diligence search processes, licensing at market rates, commercial licensing of orphan works. We would also like to ensure that measures are taken to prevent any future increase in the numbers of orphan works. Finally, we are still waiting to see hard economic evidence of user needs for orphan works licensing.

· Extended Collective Licensing

13. The Government’s response does not make it clear how widely it intends to introduce extended collective licensing and though we support its introduction in relation to orphan works licensing, we do not support the widespread introduction of extended collective licensing across the film and television industries.

14. While we recognize that certain existing voluntary licensing arrangements, already in place in the UK, function as extended collective licences, these were developed by right holders and their representatives, with industry encouragement and with relevant collecting societies and in response to a recognized need. That is, such licensing arrangements came out of industry initiatives and through voluntary co-operation. They were not imposed on right holders or on the industries concerned.

· The Role of Collecting Societies

15. As we said in our response to the Review, BECTU already engages with a number of the UK’s collecting societies on behalf of its members. Our members benefit from schemes operated by ALCS, DACS, Directors UK and Screen Crafts Rights. We support their work and are consulted about their activities. We look forward to working with the European Commission and with the UK Government on proposals for increased openness and transparency of collecting society operations, particularly those operating elsewhere in Europe. We also welcome and support the British Copyright Council’s initiative to develop Principles of Good Practice for Collective Management Organisations.

Lawful copying

16. We fully support the view expressed by the British Copyright Council in its initial reaction to the Government’s response which states:-

"We share Government’s concern that "widespread flouting of copyright through private copying brings the law into disrepute" when the copying is currently unlicensed or unauthorised. However, we do not see that this leads naturally to the conclusion that the "widest possible exceptions within the existing EU framework are likely to be beneficial to the UK"."

17. We would like a clearer understanding of Government’s position on this.

18. We do not support the Government’s recommendation to introduce a private copying exception without fair compensation.

19. Any private copying exception must be carefully framed. While we understand consumer frustration at their inability to legitimately format shift it must be recognized that creators and the industries in which they work are increasingly reliant on on-line distribution and sales revenue. We are particularly concerned that private copying of films and television programmes, will greatly damage those revenues through the introduction of a wide reaching exception.

· Text Mining and Technological exceptions

20. The introduction of an exception for text and data mining or any exception for technological development must be given very careful consideration, be based on hard economic evidence and must take account of the potential impact on all the creative industries.

· Non-commercial research and Library archiving

21. Following the Recommendations of the Gowers Review, proposals for amending the relevant exceptions for non-commercial research and library archiving in UK law, were already underway and have been delayed by the Hargreaves Review. We hope this work will now continue.

· Parody

22. Government must consider how an exception for parody will impact on authors’ moral rights.

Future proofing

23. We await Government’s view on this.

Adapting the design framework

24. Within BECTU, our Art Department represents a large number of designers, many of whom are freelance individuals, from set designers to art directors and costume designers. We welcome Government’s renewed interest in design rights.

Enforcement

25. Much of our response to the Hargreaves Review focused on our concerns about enforcement. Like the rest of the film and television industry we are concerned about the impact of physical and online piracy on our sector which poses a significant and growing threat to investment in our sector.

26. As we said in our original submission to the Hargreaves Review we have little choice but to find a way of making the DEA work. We therefore welcome Government’s commitment to implementing the Digital Economy Act. We are working with our colleagues in the Creative Coalition Campaign on this issue.

27. As representatives of SMEs, sole traders and other individual right holders, we welcome Government’s commitment to a small claims track for copyright infringement in the County Court system.

28. We welcome Government’s recognition of the value of education on right but regret that Government intends the full burden for such initiatives to lie with right holders.

Helping SMEs

29. We look forward to the publication of IPO’s plans later in the year.

5 September 2011