Culture, Media and Sport CommitteeWritten evidence submitted by The Society of Authors

Introduction

The Society of Authors exists to protect the rights and further the interests of authors. The Society was founded in 1884 and today has over 9,000 members writing in all areas of the profession (from novelists to doctors, textbook writers to ghost writers, broadcasters to academics, illustrators to translators). Authors are eligible to join if they have been offered a contract from an independent publisher, broadcaster or agent or have sold over 300 copies of a self- published book. The members of our council are listed at www.societyofauthors.org/about-us/council.

Most of our members are self-employed. They own copyright in their work and depend for a significant proportion of their income on equitable remuneration from licensing the use of that work. The Society is a member of the Creators’ Rights Alliance. We have read their response and agree with it and adopt it in full. Therefore in this response we will confine ourselves to a few issues which are of particular concern to authors.

Barriers to growth in the creative industries—such as difficulties in accessing private finance—and the ways in which Government policy should address them. Whether lack of co-ordination between government departments inhibits this sector

The largest barrier to growth for most authors is the difficulty of obtaining a proper return for their professional work. Authors’ incomes continue to be squeezed: fewer books are published and sold; advances have fallen while more unpaid work is expected of authors in marketing and publicising their work, including appearances and use of social media. In a survey in 2006, ALCS concluded that writing is a very risky profession with median earnings of around £12,000 for “professional” authors and around £4,000 for all authors, less than one quarter of the typical wage of a UK employee. Benchmarking the results against the Society’s survey, reported in 2000, indicated that the earnings of a typical author were deteriorating in real terms. This trend is continuing. Authors need to earn reasonable amounts from the considerable effort put into writing in order to continue producing inspiring and informative books (in whatever format) in all genres.

Access to finance is not typically a major issue, although the decrease in advances means that many authors find it hard to obtain funding during the sometimes considerable period needed to research and write a book.

Authors can also be deterred by sometimes onerous contracts imposed by publishers and other intermediaries so that they cannot receive an equitable return for their work.

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 the failure, as yet, to implement the Digital Economy Act, which was intended to strengthen copyright enforcement. The impact of proposals to change copyright law without recourse to primary legislation (under the Enterprise and Regulatory Reform Bill currently before Parliament)

Enterprise and Regulatory Reform Bill

1. Exceptions to Copyright by Regulation

Clause 66, enabling the extension of exceptions to copyright by regulation without full parliamentary debate is unacceptable. The government’s amendment clarifying that this shall extend only to exceptions permitted under the EU InfoSoc Directive is welcome—but the risk remains that future governments will introduce large “bundles” of changes, further reducing Parliament’s power of scrutiny. We agree with the Creators’ Rights Alliance’s proposal that if exceptions to copyright are to be made by Regulation, the procedure should be to introduce a separate Regulation for each change to be made. This will allow Parliament to decide whether to approve or to reject each change on its merits.

2. Term of Protection

We are concerned at the recommendation in clause 67 which gives the government power by means of Regulations to reduce or end the term of protection which currently applies for works which are unpublished and which were written before the provisions of the Copyright Designs and Patents Act 1988 (CDPA 1988) came into force (effectively this means unpublished works in existence in 1989) and works which have been published and were in existence before the CDPA 1988 came into force and are of unknown authorship because their author chose to be published under a pseudonym or anonymously and their identities cannot be ascertained by reasonable inquiry.

The power may be exercised so as to bring the term of copyright in the works affected to an end on the commencement of the regulations or at any later time. The operation of such Regulations could deprive rightsholders of their vested proprietary interests without compensation and without compensatory benefit to the UK economy and would be contrary to the United Kingdom’s international treaty obligations under the Berne Convention, under TRIPS, and under the EU Term Directive. Although the Explanatory Notes give the impression that the Clause is intended to facilitate the digitisation and communication to the public of medieval manuscripts and other very old material held by cultural institutions it is of wider application and is capable of affecting works of relatively recent origin whose rightsowners are easily located, for example, Ford Madox Ford, the author of the novel sequence Parade’s End which was recently broadcast by the died in 1939. Consequently, all his published work has been in the public domain since the beginning of 2010. Any unpublished work (correspondence, diaries, drafts) is protected under current UK law for a further 25 years from 2013.

3. Extended collective licensing

The Society is extremely concerned by the proposal in the ERR Bill enabling “extended collective licensing” to be introduced by Regulation (in the clause currently numbered 68).

As the Creators’ Rights Alliance said in response to the government consultation post-Hargreaves: there is no point in legislating for proper remuneration through extended collective licensing, or for exceptions to copyright bearing a right of remuneration, if publishers can then inform creators that they must sign over all such income. Steps to level the playing field in negotiations between individual authors and publishers are required: at a minimum, an equitable share of income from new streams such as extended collective licensing must be an unwaivable right of the individual creator. Such an unwaivable right already exists in UK copyright law in the implementation of the EU Rental and Lending Directive.

We agree with the CRA’s preconditions for the acceptability of extended collective licensing:

Enforceable unwaivable moral rights for all creators, including an enforceable prohibition on removing metadata, are brought in at the same time;

Only collecting societies democratically controlled by creators in the field may issue either kind of licence;

Said collecting societies’ handling of applications for such licences shall be subject to government regulation;

Licences are for a fee reflecting the market rate; and

Unclaimed monies should be applied to the benefit of authors as a whole, eg for training and education.

4. Orphan works

The other proposed Regulations to be authorised by Clause 68, to introduce schemes for the licensing of “orphan works”, raise many of the same questions. While we welcome the assurances that officials have given in meetings of the Intellectual Property Office Working Group on ECL and orphan works, that the goal of any changes must be to avoid distorting the markets for works by known authors, further safeguards are necessary including measures to prevent future works being “orphaned” by introducing effective deterrents against removing identifying metadata.

Digital Economy Act

Public Lending Right (“PLR”) The Rental and Lending Directive (2006–115/EC which replaces the repealed 92/100/EEC) creates a “rental and lending right” under which authors have the exclusive right, subject to limitations, to authorise or prohibit the rental or lending of their works [Art. 2(1)]. The rental and lending right may be transferred. However, even once the rental and lending right is transferred, the author or performer retains an inalienable and unwaivable right to equitable compensation for the rental and lending of their works.

The PLR scheme provides authors with a modest payment each time one of their books is borrowed from a public library. PLR is designed to balance the social need for free public access to books against an author’s right to be remunerated for the use of their work. PLR is particularly important to authors whose books are sold mainly to libraries and to those whose books are no longer in print but are still being read. Press coverage tends to focus on a few successful authors, yet most struggle to make ends meet. PLR provides a significant and much-valued part of authors’ incomes.

S 43 of the Digital Economy Act 2010 extends PLR to audiobooks and ebooks “lent out” from library premises for a limited time but these payments have never been implemented. This is patently unjust and we urge that this provision be brought into force and that extra funds be made available to cover PLR payments for such lending. We have been in long correspondence with DCMS on this subject and in relation to lending from volunteer libraries (which are likewise excluded from PLR).

The amendments in section 43 of in the Digital Economy Act 2010 only extend PLR to audiobook and ebook files downloaded within the library premises, as downloading from outside library premises may constitute “communication to the public” rather than “lending”. We urge you to recommend the Government to implement s43 without further delay and, if remote ebook lending from libraries is to be authorised, to ensure equitable remuneration to authors in relation to the resulting “communication to the public.” The failure to implement these payments is a clear breach of the Rental and Lending Directive

Ways to establish a strong skills base to support the creative economy, including the role of further and higher education in this

See our observations on authors’ diminishing incomes, above.

Authors come from diverse backgrounds of skills and experience and there is no particular training which can support an author in his or her career. However authors and all other creators would benefit enormously from an educational and general environment from primary level upwards, which emphasises the value of culture and the importance of copyright. IP rights are enormously important and lucrative to the UK economy. It is important to create an environment in which they are encouraged and can flourish.

The National Curriculum should include, perhaps within the citizenship modules, instilling in children an understanding of the value (artistic and commercial) of intellectual property rights. Knowing that they own copyright in what they have written, and what that means, can be a cause of excitement and pride in students; it increases a sympathetic awareness of value, and an understanding of the harm done by piracy.

School libraries should be compulsory and reading and writing for pleasure should be encouraged. Beyond Key Stage 3, the English Baccalaureate (EBacc) league table was introduced by Michael Gove, Secretary of State for Education in 2010, with a certificate and new exam proposals being announced in September 2012. The EBacc focuses on five subject areas: Maths, English, Sciences, Languages (Ancient and Modern), and Humanities (defined as only History or Geography). It does not include creative subjects. The omission of rigorous creative subjects (and consequently education about intellectual property) should be reversed through the introduction of a sixth pillar of creative subjects. This was suggested in the independent review of Cultural Education authored by Darren Henley, on behalf of DCMS.

High street bookshops, local theatres, libraries all underline the importance of books, culture and learning and should be supported. .The habit of culture should be as much a fundamental aspect of the environment as is, for example, the country’s architectural heritage.

We hope that these points are helpful. We would be happy to provide any further information which may be useful, and to provide oral evidence to the review.

November 2012