Creators' Rights Alliance - News - Digital Economy Bill 2009
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Briefing for MPs on DEB

Clause 43

31 March 2010

The Creators' Rights Alliance (CRA) is an affiliation of organisations representing the interests of over 100,000 original creators in a wide range of fields – including music, illustration, journalism, photography, writing, film and TV directing.

The CRA is concerned primarily with the section of the Digital Economy Bill that deals with the licensing of copyright and performers' rights – currently numbered Clause 43.

The DEB includes a brave attempt to tackle a number of issues concerning the making available of archive of creators’ works online and the digital economy more widely.

The CRA wishes to point out that there will be no digital economy worth having unless the individuals who create its ‘content’ remain able to make a living and dedicate themselves to producing professional work. Creators deserve fair reward for uses of their work: but this is also an important matter in the public interest. We cannot live in ‘wikiworld’ – the universe of volunteer contributions, blogs, Sunday paintings and demo recordings – alone. Society – and in the case of news reporting its democracy – depend on there being full-time creators too.

Clause 43 would legitimise ‘extended collective licensing’ of works; that is, the issuing of blanket licences for a particular use of a whole class of authors’ and performers’ work, removing from the licensee any obligation to seek consent of the authors or performers whose work they were distributing. It also proposes to deal with the question of ‘orphan works’ – those whose creators cannot be identified – by equivalent means.

The CRA appreciates ministers’ recognition of the importance of our arguments during debate in the other place. It welcomes the amendments introduced there by the government that clarify the orphan works proposal, and those that give a greater measure of control over the discretion of the Secretary of State when authorising a body to grant a copyright licence, even though they do not yet go far enough.

The CRA believes, however, that further safeguards are necessary if extended collective licensing is not to undermine the foundations of the digital economy.

Creators’ livelihoods are threatened by the potential for extended collective licensing to disseminate perfect digital copies – which will be further copied.

The most necessary safeguard against this is that every creator should have an effective legal right to be identified and to stay identified.

1 Representative bodies

The government has so far insisted that ‘cultural bodies’ must be allowed to license themselves to distribute orphan works. Given the impact of digital distribution on creators, discussed above, the Bill should specify that such licences must be granted only by bodies that genuinely represent creators in the relevant sector. In every other country that has implemented means of licensing works that without the specific authorisation of its creator, this safeguard has been seen as necessary. The CRA is willing to assist Members with further amendments.

2 Moral rights

It is a logical and legal absurdity to make such provision while there are significant groups of authors who do not have the right to be identified as authors of their work under the CDPA [Sections 79 & 81]. These include news reporters and photographers; everyone, including Members of Parliament, who contributes in any way to newspapers and magazines; and all authors and performers who produce work under contracts of employment. All authors and performers should have an unwaivable and universal right to be associated with their work and to defend its integrity. These are the two key ‘moral rights’.

  • society and democracy have a profound interest in clear attribution, especially for news reporting, with the corollary that identified authors take responsibility for these work

  • authors and performers should be able to enforce their moral right to object to uses of their work that are in the words of the governing international law, the Berne conventions, ‘prejudicial to their honour and reputation’: for example to prevent works being distorted by manipulation or used in misleading or offensive contexts.

The UK is, apart from Ireland, the only country in Europe not to grant these as inalienable rights of every citizen. Experience in countries that properly implement these rights shows clearly that they are no hindrance to a flourishing – and profitable – creative economy.

In the 21st century, particularly, these rights are important to every citizen. Technology now enables everyone to be a published or broadcaster online. As David Lammy MP said recently: “We are all creators now – I create when I post on my website, you create when you post a note on your Facebook page, we create when we Tweet each other.” Creators’ Rights Alliance members are regularly contacted by citizens who object strongly to their work being lifted from such online venues and used for profit – or, particularly, in contexts to which they object.

Individual creators also need to be able to enforce these rights so that they can trace uses and abuses of their work – and can prevent their work being ‘orphaned’.

3 Protection of ‘metadata’

‘Metatada’ is data about the data that represents a creator’s work: the label accompanying each exhibit in an art gallery, crucially identifying the artist, is a simple example.

The CRA believes that legislation should enshrine the principle that all uses of a work permitted under extended collective licensing must be accompanied by full credits of the author, and other ‘metadata’ such as agency contact details, to ensure that the work is traceable and attributed. In addition, there should be effective sanctions for the removal of this information from any work.

There is a theoretical prohibition in the CDPA on removing such information: Section 296ZG attempts to implement the relevant provision of the EU Directive on Copyright etc in the Information Society [2001/29/EC]. The CRA believes it is defective. It provides that a creator or other rightsholder has ‘the same rights... as he has in respect of an infringement of copyright’, which is to sue for the value of the infringement, which is... what, in respect of a credit?

These issues must be addressed

If Clause 43 and associated provisions are to become law, it will be necessary for the government that enacts them to make binding commitments to deal with these issues.

The Creators’ Rights Alliance welcomes moves such as the review of moral rights by the Strategic Advisory Board for Intellectual Property Policy, made in response to the raising of these matters in earlier debate on this Bill. These moves are however, only the beginning of talks about consultation. Clause 43 of the Digital Economy Bill will not work to further the interests of the digital economy unless every creator – every citizen – has an enforceable right to be identified, to stay identified and to protect the integrity of their creation.

The CRA seeks assurances that this will be dealt with in legislation at the earliest opportunity and recommends that the regulations proposed in this Bill should not come into force until this is forthcoming.

* This statement is supported by the following members of and observers at the Creators’ Rights Alliance:

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