6 May 2011
Moves are afoot to change the UK's copyright law. Some of the proposed changes are very significant for the future of the archive footage industry. FOCAL International has made submissions highlighting our industry's needs and concerns, prepared by Hubert Best our legal advisor and member of the Executive.
Over the last few years the UK government launched various reviews of the UK's IP laws.
The first was the Gowers Review of Intellectual Property, which aimed to review the UK's entire intellectual property law. FOCAL submitted observations and proposals on aspects of copyright law specific to the archive footage industry. We emphasised that any liberalisation of copyright law (especially wider exceptions to copyright and proposals for use of orphan works) should respect the exclusive rights which our members own or administer. The Review's Final Report was published at the end of 2006.
Next, Creative Britain was published in February 2008 by the Departments for Culture Media and Sport; Business, Enterprise and Regulatory Reform; Innovation, Universities and Skills; Culture, Creative Industries and Tourism; Business and Competition; and Intellectual Property and Quality. It contained a commitment to introduce legislation on illegal file sharing.
This was followed in June 2009 by Digital Britain published by the Departments for Culture, Media and Sport and Business, Innovation and Skills. It proposed that ISPs should be responsible for curtailing internet access where services which they provide were used for illegal file sharing. Consultation on amendment to copyright exemptions for preservation of archive material was promised for later in 2009, but did not materialise.
Also in 2009, © the way ahead: A Copyright Strategy for the Digital Age followed. This recommended "new model contracts ... new business models ... allow [consumers] to benefit from the digital age by seeking to legitimise non-commercial use of legitimately-purchased copyright works and improving access to 'orphan works' ... enabling extended collective licensing ...."
In response, legislation for collective licensing of orphan works as well as of non-orphan works appeared in the Digital Economy Bill, but did not survive to the Digital Economy Act of 2010, one of the last legislative acts of the last government.
The Government's wide-ranging Blueprint for Technology included (amongst consideration of taxation, research, regulation, the intellectual property framework, entrepreneur visas, technology and innovation centres, finance, pensions, investment in innovation, broadband speed, skills, release of government information, and public procurement) a commitment to "an independent review of the intellectual property framework, including considering whether there are benefits in a US style 'fair use' copyright provision."
This last commitment materialised in a call for evidence for an Independent Review of IP and Growth in December 2010, to be conducted by Professor Ian Hargreaves, Professor of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School, at Cardiff University.
The call for evidence was focussed on the economic implications of intellectual property law. The government's mandate requires Professor Hargreaves to examine possible benefits of the US 'fair use' defence. This is an issue which FOCAL has engaged with in detail, drawing on experiences and expertise of our membership on both sides of the Atlantic, over a good many years. We have arranged seminars and teaching days on the topic in the UK and the USA, have taught at and participated in seminars on the topic in several other countries, and have published extensively on the subject in Archive Zones and elsewhere. Therefore, FOCAL was well placed to provide evidence-backed input of this topic.
In the form set out in the Digital Economy Bill, the collective licensing proposal could potentially have allowed other organisations to license footage which is held exclusively by FOCAL library members, thus affecting the value of the exclusive rights which our library members exploit, for themselves and for others. However, it is clear that the failure of this proposal to become law in the Digital Economy Act was by no means the end of this issue: the Google Book Settlement is part of a trend towards licensing models in which exclusive right owners are taken to agree to exploitations licensed by others without their prior consent unless they specifically "opt out"; and many collective licensing organisations are seeking to expand the rights which they administer on behalf of individual right holders. Therefore FOCAL addressed this question in its submission to Professor Hargreaves.
FOCAL's submission began by explaining that FOCAL International is the representative organisation of the commercial archive sector in the UK and worldwide, and the economic significance of this industry sector nationally and internationally. It also explained the significance of commercial archives as a source of content for traditional and developing audiovisual markets, and the significance of digitisation of content and function to commercial archives' contribution to the digital economy. It went on to explain how copyright law provides the legal basis on which commercial archives' business models are founded, and hence the importance of the balance between exclusive rights and freedom to use content which are inherent in copyright law to the industry, in particular at this point enabling the industry to invest significantly in digitisation. Accordingly, FOCAL:
• made practical proposals to permit use of orphan works whilst respecting owners' exclusive rights;
• opposed the introduction of compulsory or similar licensing (including for "out-of-commerce works") because the economy of commercial archives, notably including extensive digital operations and investment, is built on the archives' ability to exploit their rights exclusively;
• proposed an exception to copyright to allow an archive to carry out digital film preservation, as is found in many other European countries (but not further exploitation without the necessary consents);
• opposed introduction of a general fair use exception (modelled on section 107 of Title 17, United States Code).
The draft report was circulated to all FOCAL's library members, and a number of them made very helpful comments all of which were included in the final submission. You can read FOCAL International's full submission on the FOCAL International website here [link].
At the same time, the government's Culture, Media and Sport Committee is also conducting an inquiry into the protection of intellectual property rights, and issued a Call for Evidence. FOCAL responded to this with a submission, which covers all the issues mentioned above - and which you can also read on the FOCAL International website at [link]. (This inquiry has been temporarily suspended.)
The thirst for digital content and the need to maximise return on content held are amongst the factors which have brought use of orphan works (works which are probably protected by copyright, but the right holders cannot be found) to the fore.
This is a particularly complex issue in the audiovisual footage world, partly because there are so many rights in audiovisual content, all potentially owned by different right holders. Absence of only one of ten or more consents can paralyse exploitation of footage. The situation is exacerbated in the archive footage world, because rights (such as performers' rights) may have arisen after older footage was produced, so naturally no consents were obtained; or because footage has changed hands a number of times and some rights information has been lost in the process; or because complex ownership laws can mean that rights in one piece of footage are potentially held by different persons in different countries, and so on....
Issues of digital preservation are related - even aside from exploiting footage, digital preservation projects can be financially unviable where the law requires that all permissions must be obtained in advance of digitisation, whereas economy dictates that the metadata processes needed for permissions must be run concurrent with digitisation.
FOCAL has participated in a series of round-table discussions on exploitation of audiovisual orphan works hosted by the British Screen Advisory Council. The BSAC has previously been invited to make submissions to government about potential legal solutions for the exploitation of orphan audiovisual works, and will continue to be a significant voice in this area.
In this forum, FOCAL has been able to hear and respond to viewpoints from all parts of the audiovisual industry, and in particular has contributed useful information to clarify important legal issues involved in the use of so-called "extended collective licences" to license the use of audiovisual orphan works. As mentioned above, this issue was covered by a section of the Digital Economy Bill, which would have permitted the use of this kind of licence to allow use of orphan works, as well as of works with known right holders, but did not survive to become part of the Digital Economy Act 2010. It is an awkward topic, because it is abstruse and technical - but it is also important for FOCAL members, as the result could have an enormous impact on archive footage libraries' business models and economic viability.
Therefore, at BSAC's request Hubert drafted a paper which FOCAL tabled, on the legal issues raised by use of so-called "extended collective licence" models with audiovisual footage. The paper has received international circulation and comment. If you would like a copy, please email Hubert at firstname.lastname@example.org.
FOCAL will keep members abreast of developments in all these areas. We will update the FOCAL International website as events unfold, and also report back in the next issue of AZ. (Publication of Professor Hargreaves' report is expected during May.)