My Ladies, Lords and knaves...
AS THE Freelance went to press we were expecting a crucial "Report Stage" debate on a Bill to change copyright law to happen in the House of Lords in mid-February. The rag-bag "Enterprise and Regulatory Reform" Bill includes powers for Ministers to write Regulations permitting licensing of "orphan works" whose authors cannot be found, and "Extended Collective Licensing" (ECL) allowing the BBC, for example, to write cheques to collecting societies for the right to put archive programmes online, leaving it to them to distribute the money to creators such as yourself - or not to you, if you've been pressed to sign away your rights.
During the final day of discussion - without votes - of the Bill in the Lords Grand Committee on 31 January, the Labour Peer Lord Stevenson of Balmacara observed that "extended collective licensing requires fair contracts. People who work in the creative industries are already seeing intensified efforts by many publishers and other intermediaries to coerce individuals who are sole traders into signing away all rights to their work. Those who succumb to this blandishment would be deprived of the income that the ECL provisions in the Bill are supposed to offer.
"Therefore," Lord Stevenson went on, "the failure of the Bill to include measures to level the playing field for negotiation of contracts undermines the purposes of copyright in promoting fresh creativity. These are not just matters of concern to professional creators, vital though it is to the creative economy that the possibility of making a living as a professional creator is defended. Every citizen has an interest in enforceable creators' rights and fair contracts now that so many people are publishing and broadcasting their own works through social media."
The Liberal-Democrat Lord Clement-Jones moved an amendment to probe the possibility of challenging such unfair contracts in the courts, "inspired by the Creators' Rights Alliance which feels that the contractual scales are very much weighted against it. I do not often make common cause with Consumer Focus but I am delighted that it supports the amendment." The NUJ has largely campaigned on the Bill through its membership of the Creators' Rights Alliance.
The Conservative Peer Baroness Buscombe noted that the government claims that "ECL has operated in the Nordic countries without challenge." But "there is a difference... In Nordic countries, the system operates against a background of legislation that guarantees remuneration for creators and the identification and integrity of works."
The new government Minister responsible for copyright, Viscount Younger of Leckie, answered a different question, about payment to "rights-holders" - which would include publishers who have imposed contracts assigning income to them. But he promised a meeting with concerned Lords to discuss unfair contracts, before Report Stage.
A group of news and picture agencies have threatened to initiate a judicial review of the Bill - a court hearing to determine whether it complies with the United Kingdom's unwritten constitution - even before it is passed.
Meanwhile, on 20 December the Intellectual Property Office gave us an unwelcome and unseasonal gift in the shape of policy on "exceptions" to copyright - rules stating when works can be used without permission of, or payment to, their authors or performers. The document noted all the submissions made - including those from the NUJ and CRA - on the dangers of its proposals, ignored them, and announced that it would bring in almost all the changes possible under EU law, "bundled" together, in the Spring.
Clement-Jones and other Lords on 28 January raised concerns about Parliament being presented with a "take-it-or-leave-it" wodge of good, appalling and indifferent changes - thus being put in the same position authors and performers face with "take-it-or-leave-it" unfair contracts. The Minister in response promised to "look at how the bundling of statutory instruments could be structured when they are brought to Parliament." The previous Minister, Lord Marland, gave a similar undertaking at a breakfast meeting with creators and publishers on 19 November, before the IPO finished its policy. He resigned on 7 January. Small comfort, then.