Culture, Media and Sport CommitteeWritten evidence submitted by the Association of Authors’ Agents

The Association of Authors’ Agents (AAA) is a voluntary trade organisation whose membership comprises 102 British literary agencies. Our members, between them, represent the vast majority of authors writing for the general trade market in the UK. Authors represented by our members enjoy an exceptionally high profile around the world. Revenues from the sale of rights in their works comprise a significant portion of the UK creative economy. The AAA’s members are devoted to promoting authors’ works in the domestic and global markets and to defending authors’ rights in the UK, abroad and online.

Introduction

The AAA notes with dismay that publishing is not a sector mentioned as being worthy of special focus in the Committee’s inquiry. Publishing is the largest sector in the UK’s creative economy and deploys immense commercial and cultural influence around the world. British writers are at the heart of this sector and the AAA believes that authors’ concerns and rights should be prioritised by Government in order to safeguard their essential contribution to the creative economy.

Summary

The AAA has significant concerns regarding the introduction of Extended Collective Licensing and provisions for the exploitation of Orphan Works and the likely impact of these provisions on primary licensing markets.

The AAA opposes the features of the Enterprise and Regulatory Reform Bill which will allow changes to be made to Copyright law via secondary legislation.

The AAA opposes the Government’s proposal to move the administration of the Public Lending Right away from the existing Registrar.

The AAA urgently seeks DCMS’s assurance that authors will receive their statutory equitable compensation on book loans made via the volunteer library sector.

Further Comments

1. The impact on the creative industries of the independent Hargreaves Review of Intellectual Property and Growth and the Government’s response to it; the impact of proposals to change copyright law without recourse to primary legislation

1.1 The Government’s implementation of the recommendations of the Hargreaves Review includes provisions to introduce Extended Collective Licensing and to allow the exploitation of Orphan Works. Should ECL be introduced we urge that the IPO demonstrates real understanding of and consideration the myriad forms of licences which are carefully granted by rights owners in the publishing sector. Primary licensing deals made by literary agencies and publishers maximise both profit and creativity and take place within the context of a thriving marketplace both domestic and international. Many primary licences (for example, the grant of audio rights or the grant of TV/film adaptation rights in a literary work) reserve specific secondary rights to the licensee and there is a significant risk that an ECL may unwittingly infringe the terms of the primary licence. The primary licence—almost certainly of much greater commercial value to all parties involved—would thus be utterly compromised. ECL also contravenes one of the fundamental principles of the Berne Convention which is that anyone seeking to use Copyright material must first seek the permission of the owner. The opt-out scheme proposed by the IPO (whereby rights holders must come forward to say that they do not wish their work to be licensed via an ECL) is very troubling to the AAA whose members’ primary purpose is to represent the interests of client authors and manage their portfolio of rights. There is a disturbing echo here of the Google Book Search Settlement proposed in the USA in 2008 and subsequently rejected by the American court before which it was brought: that Settlement was widely criticised by authors around the world and is now discredited as a model for mass licensing. In his ruling, Judge Chin identified its most problematic feature as the obligation on rights holders to “opt out” of the settlement if they did not wish their work to be used by Google.

1.2 The AAA is very concerned to see that the Enterprise & Regulatory Reform Bill includes provisions for the Government to introduce changes to Copyright law via Secondary Legislation. The wording of Clause 57 as it stands allows, for example, for ECL/Orphan Works schemes to be introduced, and for further exceptions to Copyright to be made, via Statutory Instrument. Significant elements of the publishing sector and authors’ ability to control and to freely exploit their intellectual property could be threatened as a result of these proposed changes to the Copyright, Designs and Patents Act 1988. We urge the Committee to adopt our view that primary legislation is the best and most transparent vehicle for complex policy-making of this kind. We firmly believe that the wide-ranging powers to adjust Copyright law via secondary legislation proposed under Clause 57 of the Enterprise & Regulatory Reform Bill should not be given to Government.

1.3 In respect of the on-going discussion about how ECL schemes would work: we wish to underline the importance of the inclusion of a very robust requirement for diligent search should a body seek an ECL that would include the right to make use of Orphan Works. The designation ‘Orphan Work’ is always applied by a party wishing to make use of the work in question in their own interest and unless the diligent search requirements are truly testing and thorough there will be an incentive for the party seeking the ECL to maintain the work’s status as Orphan. This has been neatly termed by the IPO as a ‘perverse incentive to ‘Orphan’ works’. It is essential that any mass-licensing regime to include Orphan works must strongly incentivise all parties toward discovery of the right(s) holder(s) in any works deemed to be Orphan, such that the body of works classified as Orphan is continuously and energetically reduced in size. There may well be rights holders in existence who are not readily apparent, or a chain of title for an undiscovered and unpublished work which could, if handled in a careful way, reap maximum creative and financial rewards via the very efficient existing commercial mechanisms already in place in the publishing sector.

2. The Public Lending Right

2.1 We continue to be baffled by the Government’s desire to move the administration of the Public Lending Right away from an already established, highly professional, efficient and fully competent body. We strongly reject the Government’s view that the British Library would be a suitable organisation to take on this responsibility in place of the existing Registrar.

2.2 We urge that the DCMS immediately clarify precisely how authors’ legal right to equitable compensation for library loans via the PLR will be guaranteed within the expanding volunteer-run community library sector.

October 2012