Extended Collective Licensing: an Online Survey
If you are an author, agent or publisher and you already know plenty about ECL, you may wish to skip straight to the survey. Otherwise read on:
Extended collective licensing (ECL) is a form of collective licensing of copyright works under which collecting societies are legally permitted to license the use of works created by (or belonging to) persons who are not members of their society. Last summer the UK Parliament passed primary legislation to legalise extended collective licensing by UK collecting societies. Secondary legislation is expected this autumn: this will set out in detail the regulations under which such schemes will operate.
The libraries and archives sector (or at least, the big, well-funded libraries and archives) want an ECL scheme or schemes that will permit them to digitise printed books and other materials and make them available online. The Government has announced its intention that ECL should be available for mass digitisation projects. Rumours reach me that the Copyright Licensing Agency (CLA) and the Authors’ Licensing and Collecting Society (ALCS) are preparing to move ahead with licensing such projects as soon as the law allows.
These projects will sweep up the works of foreign as well as British authors, illustrators, photographers, etc.
Members of licensing societies are going to be given the opportunity to vote on such schemes. Non-members are to be allowed to make representations to the UK government; that is, if they are exceptionally well-informed and manage to find out that a scheme is under consideration. If they find out about a scheme in time, non-members will also be allowed to opt out. (They can opt out once a scheme has started, but by that stage there will be a delay of at least six months before their works are removed from the scheme.) Members of licensing societies may also be allowed to opt out of specific schemes; whether they will be able to do this or not will depend on the rules of the particular society. [See Government response to the technical consultation on draft secondary legislation for extended collective licensing (ECL) schemes]
ECL, of course, is a major can of worms. More on that below. But first: an online survey is being conducted into authors’ views on ECL and their expectations of the opt-out process. The survey is being conducted by ‘a group of visual creators and strategists who want to get answers on the practicalities of how an Extended Collective Licensing scheme might work for authors; in particular, what it is that authors and rights owners might be opting out of and how.’ Though the initiative is coming from the visual arts sector, the organisers want to hear from writers as well as artists, illustrators and photographers, and from agents and publishers as well as authors. They would also like to hear the views of foreign writers, agents and publishers.
The survey is online here: https://www.surveymonkey.com/s/ECLAuthors.
It is quite short and will only take about five minutes to do. The deadline for completing it is 12 pm on 23 June. The organisers describe the purpose of the survey as an opportunity to say ‘what you would expect of an opt-out procedure and how you think it may affect your business’. They intend to use the findings ‘to enable creators and government to make sound judgments based on research data’.
As I have already said, ECL is a can of worms. For one thing, it will involve the intrusion of collective licensing into areas such as book publishing and licensing illustrations where direct licensing has been the standard procedure. Worse, it is going to disrupt the long-established industry practice under which authors license their books to publishers on an exclusive basis. What happens when the government permits private companies (for that is what the licensing societies are) to override the provisions in commercial agreements legally contracted between third parties? Who knows? but it appears we are about to find out. There are other problems. It is highly questionable whether ECL for book digitisation is compatible with the UK’s international obligations under the Berne Convention and other copyright and IP treaties. It is also questionable whether it is compatible with the ALCS mandate, which states: ‘the Society is … appointed to administer the rights in situations where collective administration is the most appropriate option i.e., where the fees cannot practically be obtained through any other means’. There is no doubt that the British Library and other libraries and archives would rather license rights from the collecting societies at a bulk rate than negotiate them individually with the copyright owners. But there is some money that is better left on the table. The right to make a copyright work available to the public is a primary right, and valuable. Until now, the rights typically licensed through the licensing societies have been secondary rights, rights of lesser value for which it would be difficult to collect individual payments; one well-known example is the right to license a limited amount of photocopying or scanning.
I have focused on ECL for book digitisation here since there are certainly pressures to introduce such schemes, and little doubt that there are plans in hand to bring them in. But I shall conclude by noting that there is nothing in the legislation or the proposed regulations that would prevent ECL from being applied to digital materials, including text and images published on the web. This could include works whose authors or publishers only intended to make them available for a limited time: taster chapters from books, for instance. ECL could also be used to license personal materials made available on social media. We are all published authors now.
Note: The links above are to a version of the survey specifically for writers and their representatives and copyright holders. There is another version online which is aimed at the visual arts sector. For information about that version and a link to it see this post on the 1709 blog.