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The UK Government's Consultation on Copyright

29 April 2012

See 'Further Information' box on the right for 2014 update.

Libraries under threat

FOCAL International’s lawyer, Hubert Best, writes on the issues threatening the archive world and the actions he is spearheading nationally and internationally…

On the legal front, 2012 has been a very busy – and highly unsettling – year so far.
It began with publication of the Consultation on Copyright. This was the government’s response to the Hargreaves Review, to which FOCAL International had provided a submission in 2011.
In the Consultation on Copyright the government explained that it had accepted many of Hargreaves’ recommendations, and was now embarking on a consultation about implementing them.
The recommendations which would have the most negative impact on FOCAL International library members are government proposals to:

  •  Widen exceptions to copyright, opening them up to the maximum degree possible within European law, and
  •  Introduce “extended collective licensing” which allows licensing of content without the right holder’s permission.

Wider exceptions to copyright mean more free use, and footage archives will be specially vulnerable because so much of their content is sold in small amounts – clips of 15 or 20 seconds to a minute or two. Loss of exclusive control over their own footage would also affect archive footage sales fundamentally.
Other recommendations include proposals to:

  •  Facilitate use of Orphan works, where the right holder cannot be found,
  •  Regulate collecting societies and
  •  Allow infringement claims to be pursued on the “small claims track.”

The Consultation on Copyright is nearly 200 pages long, plus 13 “impact assessments,” each about ten pages, as well. I did my best to summarise this indigestible fare for the FOCAL International Library Members, setting out the Consultation’s recommendations and highlighting their potential effect on the archive footage industry, asking for Library Members’ reactions. Thank you for many informative replies.

Library Managers’ consultation
We followed this with a well-attended whole-day Library Managers’ meeting, at which we discussed the issues in detail, asked and answered many questions, formulated FOCAL International’s policy to respond to the Consultation - and felt generally under threat and, by the end of the day, exhausted!
Sue Malden, Chair of FOCAL International, and I met with a number of library managers, lawyers and owners, and other organisations. The government arranged meetings dealing with each of the proposals separately: government officials explained their understanding and representatives of the sectors involved – authors, broadcasters, musicians, photographers, publishers, producers, the record industry, universities, ISPs, consumer protection groups and many more – discussed the proposals with more or less light and heat. I attended these, as well as a number of individual meetings with government officials seeking clarifications and making FOCAL International’s case.
Sue Malden went to an RTS meeting and alerted them to the issues. I also gave a lecture at the British Literary and Artistic Copyright Association – the UK’s national member of ALAI, the organisation which founded the Berne Convention – about the contentious subject of extended collective licensing. As a Swedish advocate I could give the Nordic picture (these licences are only used in Nordic countries, in very limited situations). The government came along – so did lots of others, and the lecture has found its way to Germany and the USA.
- FOCAL International’s very detailed response to the Consultation on Copyright was submitted in March.
- Several larger archives also submitted their own responses – co-operation between them and FOCAL International was much appreciated and very helpful.

Digital Copyright Exchange
Meanwhile, the government decided to deal with the proposed Digital Copyright Exchange separately from the main consultation. Sue Malden and I had a meeting with David Hooper, who is heading that issue, to explain what footage archives are, their contribution to the audiovisual industry, and the legal issues. FOCAL International submitted its detailed response to this consultation, too.
At time of writing Hooper’s resulting report – called Rights and Wrongs – has just been published. Its purpose is “to consider options for developing a functional digital market in rights clearance and a source of information about rights ownership.” Rights and Wrongs sets out “issues with copyright licensing.” The next phase of Hooper’s study will “seek solutions to the issues.”

FOCAL International disappointed
One of Hargreaves’ key innovations was to demand that the UK’s “IP System is driven as far as possible by objective evidence.” In 2011 he wrote that “we have not yet succeeded in grounding policy securely in evidence.” The purpose of the whole Review of Copyright including the DCE is to produce economic growth. Therefore we are disappointed that Rights and Wrongs is based on relatively little economic evidence – and evidence which it does rely on is inadequate and sometimes wrong. In particular, the whole raison d’etre of the DCE is to add £2.2 billion a year to the UK’s GDP by 2020. The Danish study from which this figure is taken doesn’t actually support this projection. Seven respondents to Hooper agreed with it, whilst 41 disagreed – yet this challenge to the foundation of the DCE’s basic purpose is disclosed only in an Annex at the end of the report!

Out of proportion
The report lacks a sense of economic proportion. For example, it equates a museum wishing to copy a letter for display with digitising an entire collection, and confuses digitising threatened books or footage to preserve them with exploiting the digital copies commercially. It cites the cost of clearing rights in audiovisual footage to digitise it, but does not put this in the context of the costs of actually digitising the footage, or of the cost of the rights themselves, or of licensing revenues generated, or indeed of producing the footage in the first place, all of which are enormously higher.

The Consultation on Copyright is open to the same challenge. For example, proposals to widen the education exceptions consider the economic impact this would have on collective licence income (e.g. from CLA or ERA) but do not consider – or even mention – the important and profitable educational publications and subscriptions market.

All-Party Parliamentary Intellectual Property Group
In March, this Group – headed by John Whittingdale MP and including MPs Pete Wishart and Jim Dowd – announced an inquiry into The Role of Government in Protecting and Promoting Intellectual Property. The Group asked searching questions, such as “How well co-ordinated is the development of IP policy across Government?”
The Group commented, “There have been numerous reviews of IP policy in the last ten years but little examination has taken place of how Government itself promotes and develops the protection of Intellectual Property Rights.”
It expects to reach conclusions by May, and “feed into developing Government thinking in this area, particularly following its Copyright Consultation.” FOCAL International submitted a detailed response, and we will be involved further in this inquiry.

What now?
The issues have started to make it into the press. Sue Malden was quoted in Broadcast (“Copyright reform could destroy archive industry”). Other articles have started to appear – “Music industry blasts Government attempt to modernise copyright laws” (Telegraph) – “UK trade hits back at Government proposals. Publishers could be left £40m out of pocket” (Music Week).
After the mammoth efforts that went into the submissions, now we are urgently turning our attention to ensuring that correct information is as widely publicised as possible. “Exceptions to copyright” are not an obvious newspaper headline. And the issues are nuanced – always difficult with the media – some of the government proposals help footage archives, whilst others would be hugely destructive. Eventual decisions must be based on economic evidence that holds water, not on random figures quoted out of context. So this is not an easy task. Larger libraries and FOCAL International are working together to ensure that the issues are put clearly and accurately before Parliamentarians, influential individuals, in the press, and publicised as widely as possible.

In the meantime, we wait for the government’s response to the Consultation on Copyright and the second report on the DCE – both of which are expected within the next few months.

I add a very big personal thank you to the member libraries and their owners, managers and lawyers who have been enormously helpful in this huge task to date, and continue to be.

Readers who don’t have copies of documents mentioned above can find them in the 'Further Information' panel or email requests to

FOCAL International's submission to the Hargreaves Review

FOCAL International's submission to the Government's Copyright Consultation

FOCAL International's submission to the Digital Copyright Exchange Review

FOCAL Internatonal's submission to the All Party Parliamentary Intellectual Property Group

Hubert Best
ENN Advokatbyra
Hubert Best is FOCAL International’s Legal adviser