Culture, Media and Sport CommitteeWritten evidence submitted by the National Writers Union

This letter with its attachments1 is submitted on behalf of the National Writers Union, in response to the inquiry by your committee about support for the creative economy, to which we have been belatedly alerted by colleagues working for creators’ rights in the U.K.

The National Writers Union (NWU) is a national labor union that advocates for freelance, contract, and self-employed writers. The NWU includes local chapters throughout the U.S. as well as at-large members nationwide and abroad, including in the U.K. The NWU works to advance the economic conditions of writers in all genres, media, and formats. NWU membership includes, among others, book authors, journalists, business and technical writers, website and e-mail newsletter content providers, bloggers, poets, playwrights, editors, and academic writers. The NWU is a national amalgamated union (Local 1981) of the United Auto Workers, AFL-CIO.

As writers whose work is likely to be impacted by U.K. legislation and regulations, the NWU is gravely concerned that measures being considered by the U.K. Parliament and the U.K. Intellectual Property Office, including the provisions of the Enterprise and Regulatory Reform Bill concerning “orphan works” and Extended Collective Licensing (ECL), would:

(1)Violate the obligations of the U.K., pursuant to the Berne Convention, with respect to the rights of authors of works first published in the U.S. and elsewhere outside the U.K.;

(2)Misidentify many works first published in the U.S. and other countries—particularly works simultaneously published in multiple countries, U.K. editions of works previously published in different editions in the U.S., and works first published online on servers in the U.S.—as having been first published in the U.K. and as being “orphan works”;

(3)Authorize reproduction and use of U.S. and other foreign works without the permission of the author (or other holder of the particular rights being exploited) in ways that interfere with the “normal commercial exploitation” of rights to those works; and

(4)Impose burdensome “opt out” and/or “claim” requirements, constituting “formalities” prohibited by the Berne Convention, on foreign authors who do not want our work included or authorized for reproduction or use through “orphan works” or ECL schemes. (The costs which would be imposed by these proposals on authors, whether in the UK or abroad, of searching lists of works to which some of the rights had provisionally been identified as “orphaned”, are entirely omitted from the Impact Assessment prepared by the IPO, even though these costs would manifestly be the largest category of costs imposed by the “orphan works” scheme.)

The NWU has already brought these concerns to the attention of the U.S. government. In August of this year, the NWU submitted comments to the U.S. Intellectual Property Enforcement Coordinator, in which we said that, “These laws and legislative proposals violate, or would violate if enacted, the rights of U.S. writers and the obligations of foreign governments to the U.S. as parties to the Berne Convention. As such, they call for strong diplomatic protests by the U.S. and the invocation, if they are enacted, of appropriate treaty enforcement mechanisms and sanctions for noncompliance with treaty obligations.” (This NWU submission to the IPEC, which incorporated our white paper on “Facts and Fallacies of Orphan Works”, is available at <www.nwubook.org/NWU-IPEC-2012.pdf> and is attached to this letter.)2

We urge Parliament and the IPO to consider carefully the inevitability that works first published abroad will be swept up in the proposed “orphan works” and ECL schemes, and the implications of this for U.K. compliance with its obligations pursuant to the Berne Convention.

To this end, we urge that Parliament and the IPO open direct consultations with foreign writers and with groups such as the NWU which represent the interests of foreign writers.

We thank you for the opportunity to have our submission considered in your inquiry. We will be happy to consult with you, your staff, or the staff of the IPO on these issues.

We waive any objection to the publication of this submission and our contact details.

November 2012