Copyright under review

THE NEARLY-FINAL debate on the Enterprise and Regulatory Reform (ERR) Bill has opened in the august setting of the House of Lords, with the first of a series of amendments dealing with the Bill's copyright provisions debated late on 6 March.

That amendment called for an annual report on copyright, to ensure that matters not dealt with in the Bill, that should have been, stay on the agenda. One example raised on Wednesday was proper protection for "rights-management information" included in the "metadata" of a digital text, image or music file,

This was a so-called "probing amendment" and was withdrawn after the responsible Minister, Viscount Younger, gave an assurance that there would be an annual review.

Lord Howarth reported that "at last, we have a working group looking at the problems that arise with metadata and digital photography. The working group is trying to find out why this stripping happens, why creators do not get paid and, above all, what solutions might be found, presumably by way of new technology but perhaps in other ways, to ensure that intellectual property is not stolen from photographers." The Association of Photographers, the BBC and the British Association of Picture Libraries and Agencies (BAPLA) are among the members of this working group.

Baroness Buscombe made the interesting point that "The UK Government will not be in a position to demand appropriate safeguards for licensing of UK copyrights by ECL in China if we ourselves do not have them in our own legislation as the Nordic countries do. Nor will UK rights holders or their representative bodies be in a strong position to safeguard UK rights abused by ECLs in foreign countries if the UK's own statute lacks the necessary safeguards."

The Nordic countries, of course, have law implementing some of the changes the government proposes - but against the background of far stronger protection for authors and performers.

The government has withdrawn the highly-controversial clause in the Bill that appeared to give Ministers new powers to extend "exceptions" to copyright - that is, circumstances in which your work can be used without permission from, or payment to, you. However, the Intellectual Property Office said weeks ago that they planned to implement the exceptions in their report Modernising Copyright (PDF here using the European Communities Act 1972, not this clause. The government's replacement for this clause simply states that they can do that, while preserving criminal penalties at a higher level than the EU standard - which is what they said they wanted 67 for, once they settled down on being able to explain it at all.

Expect several almighty battles in the near future: several over the scope of the proposed widened exceptions, and more over the devilish detail of the mechanisms for licensing "orphan works" and for "extended collective licensing" for which the ERR Bill lays the ground.

Debate continues on Monday 11 March, with Lords proposing several amendments trying to get the details of these schemes clarified. It then remains to be seen whether the government will seek to overturn in the House of Commons any sensible amendments which are passed in the Lords.

The bulk of our campaigning work, however, must now focus on the "Statutory Instruments" laying out the machinery. There is a continuing battle to offer Parliament the chance of some debate by having one Statutory Instrument dealing with one issue - not, as the Creators' Rights Alliance said in a briefing, letting the government "'bundle' a raft of changes - beneficial, neutral and harmful to creators - in one Regulation". Doing that would put Parliament in the position with which freelances are so familiar - a . "take-it-or-leave-it" offer of contract.

Unfair contracts examined

THE COPYRIGHT sections of the Bill were debated at "Report Stage" in the House of Lords on Monday 11 March. None of the amendments that were debated were passed. But practically every amendment that sought to clarify the safeguards for creators in the proposals for extended collective licensing and licensing orphan works got a satisfactory reassurance from the Minister, Viscount Younger, that the points raised would indeed be included in the "Statutory Instruments" that are due to contain the nitty-gritty detail of the proposed changes to copyright law. Those reassurances are the goal of the Lords who put the amendments.

The Minister promised to meet with creators, particularly the Creators' Rights Alliance of which the NUJ is an important member, to discuss the issue of unfair contracts being imposed on sole traders by powerful corporations. Lord Clement-Jones, raising the issue, reported that he has "sent the Minister a paper suggesting how such a review might take place. It would be an independent review of copyright contracts for creators and would explore how copyright contracts could be made fairer to ensure that creators receive a fair share of the money that consumers pay for copyright content and that the purpose of copyright in stimulating and sustaining creativity is met.".

Only one amendment was voted on. Lord Howarth and others spoke for "The Great Cultural Institutions" (inter alia the British Library and the BBC) - seeking to overturn the provision in the Bill that says licenses to use orphan works - those whose creators cannot be found - must be paid for in advance. The only speaker against him was the Minister: we had the pleasantly disquieting experience of hearing him repeat arguments that we creators have made since the issue of orphan works was first raised.

"Making payment discretionary would risk undercutting the market," the Minister said: "It would also risk rights holders not receiving the remuneration that they would otherwise be due. Therefore, to avoid unfair competition, it should not be cheaper to use an orphan work than a non-orphan work. Where cultural institutions are acting commercially, it seems only fair that they do not receive preferential treatment to other parties licensing in the market." The amendment was defeated by 214 votes to 194.

We continue to comb the Minister's statements checking for loopholes and looking for promising avenues for further discussion.

Unfair contracts in parallel universes

It is worth quoting in full comments from the Earl of Erroll, a cross-bench Lord who was trying to give permission to publish some family documents:

They put a contract in front of me that said that they would have total rights to this material throughout the universe, known and unknown, in media not yet developed, incorporated and not incorporated-this, that and the other.

The only thing it did not include was parallel universes.

The contract said that I would have to defend the copyright whenever and wherever required, at my cost. I was not receiving anything for this; I was simply trying to be kind and helpful to someone who was making a documentary. I asked someone legal about it who said, "Oh, they probably couldn't enforce it because it's an unfair contract", but apparently it is not because unfair contracts [law does] not apply to copyright. I therefore asked whether other people had signed this, and was told, "Oh yes, they've signed them. Don't worry, I'm sure nothing will happen".

It is madness for people to sign these things.

...This copyright thing would, if I had signed it, presumably have burnt my heirs and successors as well for the period of that copyright. This is potentially quite serious, which people are ignoring. They think that it will go away and that it does not matter because it is so over the top. I struck through all the relevant clauses in the contract and said, "Right, you can have whatever rights you want to it, but you defend it and look after it". I never heard any more and they never used the material, which is sad.

© Mike Holderness