Digital Economy Bill and Extended Licensing: 3
The government has given assurances that opting out of extended licensing schemes will be a simple process. The British Association of Picture Libraries and Agencies (BAPLA) believes that IPO intends that registration to opt out will be ‘free to rights holders and managed on a non-commercial basis’.
Nonetheless, it remains the case that extended licensing removes from licensees (typically, well-resourced publishers or media companies) the burden of finding and negotiating with the author, and instead places on authors the burden of finding out that schemes exist and opting out of them (or claiming their share of revenue). This is, let’s be clear, a major point of the plan to introduce extended licensing: transferring the transaction costs from the licensee to the creator.
The right holder to whom it is crucial that her works are not exploited under an E[xtended] C[ollective] L[icensing scheme] has to establish mechanisms for monitoring the market and bear the costs associated with such efforts of monitoring – Thomas Riis and Jens Schovsbo, ‘Extended Collective Licenses and the Nordic Experience’
Not all authors are members of professional organisations, or in touch with authors’ networks; indeed, not all published authors are professional writers. It is inconceivable to most creative people working in the UK that they should have to take formal action to protect their rights in their published works.
The system [of extended collective licensing] is best suited for countries where rights holders are well organized. – World Intellectual Property Organization (WIPO) and International Federation of Reproduction Rights Organisations (IFRRO), April 2005
The Nordic countries that developed extended licensing have small populations. The largest is Sweden, with a population of nine million. Their languages are not world languages, as English is. Very many works by authors from other English-speaking countries are published or distributed in the UK.
Even defenders of the extended licensing system recognise that it is very unfair on foreign rights-holders.
It may be very difficult for foreign right holders to find out that their works are being used under an E[xtended] C[ollective] L[icensing scheme] and consequently they cannot claim remuneration (or opt out of the ECL for that matter) – Thomas Riis and Jens Schovsbo, ‘Extended Collective Licenses and the Nordic Experience’
Unless applied very narrowly and in very limited, specific circumstances, extended licensing may place the UK in breach of its obligations under the Berne Convention. Signatories to the Berne Convention guarantee that ‘the enjoyment and the exercise’ by foreign authors of the protected rights ‘shall not be subject to any formality’.
The purpose of … article [5.2 of the Berne Convention] is to avoid constraining the rights holder to check the exercise of his rights in each country. Since extended collective management is country based … it means that the rights holder has to actually check each country, with potential linguistic problems and – even small – variations in procedures, to keep control of the exercise of his rights … This is hardly simple, even with the help of modern communication media. Furthermore, given the nature of the problem addressed, the formality prohibition is necessarily intended to apply to any type of national formality, however instituted – Bernard Lang, ‘Orphan Works and the Google Book Search Settlement – an International Perspective’
Exceptions to the Berne Convention are permitted by legislation, but only in ‘certain special cases’. Any reproduction under such exceptions ‘must not conflict with a normal exploitation of the work’ or ‘unreasonably prejudice the legitimate interests of the author’. All three of these conditions must apply.
The powers granted to the Secretary of State under clause 116B are extremely broad. The government has cited no special cases to justify the imposition of extended licensing on works whose authors are known or may be easily traced. The clause contains no limitations to prevent its application to uses that would interfere with a work’s normal exploitation or operate to the detriment of the author’s legitimate interests.
We do not understand or accept the need for extended licensing schemes, other than in relation to orphan works, except possibly in very limited and specific circumstances and after the fullest consultation with copyright owners likely to be affected. By contrast, the breadth of the power given to the Secretary of State is very wide and lacks any detail or limitations – The Society of Authors
One of the fears of UK authors, and authors world-wide, is that extended collective licensing and similar schemes will be brought in separately on a broad basis by countries across the world, imposing impossible administrative burdens.
If this were to happen, the international copyright regime would have ceased to function to protect authors’ rights. The consequences would be disastrous – not least for the UK’s creative industries.
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