The provisions for punishing suspected illegal file-sharing are not the only contentious parts of the Digital Economy Bill, though they have received the most publicity.
Authors, photographers and other creators have expressed anxiety and anger about clause 43, which contains highly controversial provisions for changing copyright law:
- A new clause 116A to be inserted in the Copyright, Designs and Patents Act 1988 confers on the Secretary of State for Business, Innovation and Skills the power to authorise a licensing body or other person to publish/broadcast/perform/copy/adapt a work that is in copyright, or to grant licences to do any of these things, in the event that the work is an ‘orphan work’ (a work whose copyright owner cannot be found after a diligent search).
- A new clause 116B confers on the Secretary of State the power to authorise a licensing body to grant copyright licences to publish/broadcast/perform/copy/adapt published works regardless of whether any of the people for whom it acts as the agreed agent owns the copyright in them (‘extended licensing’). Copyright owners would be able to exclude rights from use by giving notice.
These provisions depart from the fundamental principle of copyright: that the author alone possesses the right to authorize any reproduction of his or her works.
Orphan works might be considered to constitute a special case, potentially justifying certain closely defined exceptions to the usual rules of copyright law. The orphan works provisions in the Bill will be discussed in a later post.
The extended licensing provisions will apply to works whose rights-holders are traceable, as well as to orphan works. The Secretary of State may authorize a licensing body to license works for use even in cases where the author is not a member of the body and has not delegated any authority to that body to act as his or her agent.
The extended licensing provisions contain no requirement that the licensing body, or the person obtaining a licence, should carry out a search for holders/owners of rights who are not members of the licensing body. This is in distinction to the orphan works provisions, under which (in theory) no use may be made of a work until a diligent search for the rights-holders has been conducted.
It seems almost absurd to have one part of the Bill devoted to protecting copyrights and another devoted to taking them away. I simply do not understand why safeguards inserted to protect copyright owners from having their works mistakenly classified as orphan are not extended to this proposed new section – Lord de Mauley, Shadow Minister for Innovation, Universities and Skills, House of Lords, 8 February 2010
There are indications that one of the intentions behind the extended licensing provisions as drafted is to circumvent the ‘diligent search’ requirement in the case of orphan works.
Extended collective licensing should not be used as an excuse to reduce the obligation on users to trace right holders, [or] to seek permission from the right holders concerned – British Copyright Council, response to ‘Creative Content in the European Digital Single Market’, December 2009
As currently drafted, the provisions in the Digital Economy Bill would potentially place on published authors who wish to keep control of their copyrights the extraordinarily heavy burden of opting out of schemes run by organizations with which they have no connection and that have no obligation to seek to inform them that the scheme exists.
The only way that you can respond … as a creator is by opting out, assuming you knew that process was going on in the first place. We just think it’s incredibly broadly, incredibly badly worded and you cannot begin to believe how open-ended it is. – Feargal Sharkey, chief executive of UK Music, on clause 116B
Collective copyright licensing was developed for use in special cases. Typically, these are cases involving secondary uses, as in the photocopying of already published material, or the broadcasting of recorded music. In such cases, collective licensing may suit the convenience of rights-holders and licensees, who are relieved from the burden of individually negotiating numerous small payments with multiple parties.
Extended collective licensing, in which licensing bodies are empowered by legislation to license works whose rights belong to persons whom they do not represent, developed in the Nordic countries, where it has mainly been applied in much the same cases as voluntary collective licensing elsewhere: chiefly reprographics and broadcasting.
The broader cultural background may … be said to be small homogenous societies built on a high degree of trust and transparency. – Thomas Riis and Jens Schovsbo, ‘Extended Collective Licenses and the Nordic Experience’ (January 2010)
The government has not indicated publicly any compelling special cases that might conceivably justify a departure from the UK’s present voluntary collective licensing arrangements. It has resisted calls to confine the orphan works and extended licensing provisions to educational and cultural uses of the works. It has made it clear that it intends the extended licensing provisions to apply to works whose rights-holders are known or easily traced as well as to orphan works.
The [extended] collective scheme should only operate in cases where the prospective user of the work has expended reasonable endeavours and resource in locating the rightsholder. Remuneration schemes, by definition, are not designed to replace individual licensing arrangements. – Authors’ Licensing and Collecting Society (ALCS), in evidence to the Gowers Review