stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Conscripts or Volunteers? DACS replies

Our piece ‘Conscripts or Volunteers?’ has prompted DACS to issue a statement claiming that Stop43 have misread and misrepresented the Memorandum of Understanding (MoU) signed by EVA and others on 20th September 2011.

DACS sent a similar statement to photographers who asked DACS why they signed the MoU, and when they consulted their members in order to gain their approval. DACS have asked Stop43 for the right to reply to our piece.

Stop43 are always happy to engage in dialogue, and so here is DACS’ statement in full. Here is the Memorandum of Understanding. We suggest you read it, paying close attention to paragraphs 7 and 8 of the Preamble; and then read DACS’ statement; our piece; and form your own opinion.

‘As discussed in our phone conversation today, DACS appreciates the opportunity to respond to what we feel is an inaccurate representation of the Memorandum of Understanding.’
Memorandum of Understanding: Key principles on the digitisation and making available of out-of-commerce works
DACS statement

A Memorandum of Understanding (MOU) was agreed in Brussels in September 2011 between representatives of authors of literary and artistic works, publishers, and libraries. The MOU was signed by a number of organisations, including the European Federation of Journalists (representing photojournalists) and EVA, of which DACS is member. It sets out the principles and standards which must be adhered to if and when parties negotiate future agreements regarding the making available of works, which are no longer commercially available, to public or cultural institutions.

The MOU is not a licensing agreement or an approval to use copyright protected works without permission or remuneration. It is an instrument to safeguard artists' rights in any future negotiations of possible uses of out of commerce works.

Rightsholders are protected through a number of mechanisms:

  • Rightsholders must be consulted with, sufficiently in advance of any project going ahead or Agreement being reached
  • Rightsholders moral rights must be respected - stipulating the author's right to claim authorship of the work, as well as the right to object to distortion, modification etc of the work
  • Rightsholders shall always have the first option to digitise and make available an out-of-commerce work
  • Agreements are negotiated on a voluntary basis amongst relevant parties, including authors and publishers
  • The contracting parties (including rightsholders) shall define the scope of any Agreement and applicable remuneration
  • Rightsholders can opt out of any Agreement

Such agreements outlined in the MOU are not currently relevant in the UK as extended collective licensing is not established.

The MOU is not intended to create a framework for national extended collective licensing legislation. However the experience in Sweden provides evidence of how the UK could benefit from an ECL environment. The system is considered of primary benefit where it is not possible, or extremely difficult, to negotiate individual licences. The system is widely considered as offering a balance of interests between fair remuneration and incentivisation for creators, and greater opportunities for the licensee to use protected work legitimately in their field of business. Individuals are granted the ability to opt out of ECL agreements if they have particular concerns over how their work will be used or remunerated. ECL has enabled use of work which otherwise would have been difficult to copy lawfully.

DACS recognises that the greatest risk facing rightsholders is that in the absence of effective licensing mechanisms, legislators may choose to introduce further exceptions within copyright law. We have seen evidence of this already in the outcome of the Hargreaves Review of IP which proposes several new exceptions risking visual artists' livelihoods.

Recital (8) of the Memorandum of Understanding, referring to visual works embedded in literary works, requires negotiations to take place not only between the body wishing to license content, and the collective management organisation for literary works, but also the collective management organisation for visual works.

It would follow from this then that a collective management organisation for visual works (such as DACS) would be obliged to consult with rightsholders prior to any agreement being reached.

If in the future, there is pressure from cultural and public institutions to licence out of commerce works then this Memorandum obliges all relevant licensing bodies to consult fully before negotiating an Agreement.  

Conscripts or Volunteers?

It has come as a major surprise to photographers that the European Visual Artists (EVA) signed, on 20th September 2011, a Memorandum of Understanding with the European Commission proposing that visual works ‘embedded’ in ‘out of commerce’ literary works should be handed over to collecting societies for further publication on behalf of European libraries.

This scheme will be not be voluntary for the creators of photographs (and other visual works) licensed for publication in the original commercial publications, although it will be for the authors and/or publishers of these literary works.

Let’s just repeat that: photographers and illustrators will not be able to opt out of this scheme.

The offending clause states:

‘(8) Recommending that embedded images are dealt with within the same Agreement as the literary work in which they are contained by the collective management organisation for visual works or the collective management organisation which is mandated to represent visual works.’

It is elsewhere expressly stated that licence agreements will be voluntary for those who hold rights in the ‘out of commerce’ works, and if the same privilege were to be extended to those whose ‘images’ are therein ‘embedded’ (or published, in other words), this would be the place to say so. But it does not. While this particular clause is ambiguous, those who drafted it are only too well aware of the implications for photographers, and have chosen not to say so. Which leaves us as conscripts, not volunteers.

So, what are ‘out of commerce’ works? And what are the schemes into which photographers are to be conscripted? Out of commerce works are, simply put, works which are out of print. The idea is to enable ‘publicly accessible cultural institutions’ (jn other words the Cultural Heritage Sector) to digitise and publish them, by voluntary agreement with rights holders, for ‘applicable remuneration’. Licences for works that are out of commerce will only be granted by ‘collective management organisations’ (in other words, collecting societies and other organisations licensed to issue collective licenses).

Why? Why should rights-holders not license their copyright works directly? In fact, why hand over a second, third or fourth edition to ‘publicly accessible cultural institutions’ at all? There are three possibilities here:

  1. the author and/or publisher, for whatever reason, does not want to re-publish in a particular territory, or at all. The author, if not the publisher, has that absolute right;
  2. the rights-holder takes advantage of new publishing methods to re-issue the work commercially at next to no cost or risk to themselves;
  3. The rights-holder hands the work over to ‘publicly accessible cultural institutions’.

While accepting that rights-holders do indeed have the right to take option two, option three is the most likely scenario. From the Association of European Libraries press release:

‘The aim of the Memorandum of Understanding (MoU) on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works is to facilitate the digitisation and making available by European libraries and similar institutions of books and learned journals in their collections which are out-of-commerce. The MoU will serve as a blueprint for collective licensing agreements negotiated amongst rightholders, libraries and collecting societies.’

Orphans aren't enough, they want the works of known authors too. Authors' work is to be nationalised and photographers, and ‘embedded works’ (photographs) are to be the collateral damage. There is no negotiable option or space wasted developing the best option for individual creators. That, option two, is putting digitisation, at minimal cost, to the best possible use. Enabling authors to fully benefit from their work by publishing themselves, without any longer having to cross the daunting hurdle of paying for print copies up front. And, with print on demand, even the publication of physical books is no longer an insurmountable barrier. Maybe in the interest of preserving our cultural heritage the European Commission could launch a scheme helping EU citizens to publish their own work, at minimal cost to the Commission, and thereby incentivising the flowering of European culture?

Either way, option two or option three, whoever wishes a further licence to publish our photographs - which are very much ‘in commerce’ - in these books should apply to photographers, the rights-holders. Directly. In the normal way. To negotiate a perfectly straightforward commercial agreement. As they always have, whenever a publisher wishes to re-print an edition, or launch a new one.

How did we end up here? Why apparently has no-one asked us? Well, in fact, they have! The EC has been talking to visual artists’ representative bodies who have apparently failed to consult their members. The EVA has one body in each member country negotiating on behalf of visual artists. In the UK’s case this is the Design and Artists Copyright Society (DACS), which just happens, like most, if not all the other consulted bodies, to be a collecting society. And which, unsurprisingly, considers the answer to all this to be - collecting societies.

Extended collective licensing is in fact illegal, but DACS provides a practical solution in an instance in which it is highly impractical for photographers to licence their work directly. Which is why, despite the issue of illegality, professional photographers and illustrators mostly turn a blind eye to their Payback blanket licensing scheme for photocopying (and similar usages). It works, and to member-photographers’ and illustrators’ advantage.

But photographers and illustrators do not need a collecting society for direct licensing of individual photographs for specific identifiable uses. They do not need DACS to license the use of photos in books. They can choose to license them themselves - but as volunteers, not conscripts.

Licensing and collecting societies typically grant themselves wide powers to license their members’ rights. Most are monopolies and mature businesses; the only ways for them to expand are to move into new licensing areas, or attempt to broaden their remit to include the rights of non-members, which is why collecting societies such as DACS favour extended collected licensing and actively try to sell its supposed benefits to creatives in their sector.

A Memorandum of Understanding carries no legal weight whatsoever, which is probably just as well because any scheme based upon it would clearly be illegal under the Berne Convention Article 9. That does not mean that this agreement is benign and can safely be ignored.

If DACS is exceeding the powers that it has been delegated by its members, this should be pointed out to it. If it is not exceeding its powers but remaining within them, DACS members who object to this Memorandum of Understanding should inform DACS of their objections. The contact address is

Be our guest.

Lobbynomics: The Biased Survey

In his report, Professor Hargreaves bemoaned the ‘lobbynomics’ surrounding copyright, calling instead for empirical evidence upon which policy should be based. Let’s look at what appears to be an attempt to gather some of that ‘empirical evidence’: an ‘Orphan Works Survey’ currently being undertaken by the Collections Trust and Strategic Content Alliance.

In 2009 the Collections Trust and Strategic Content Alliance produced a pump-it-up report called ‘In from the Cold’ to plug their apocalyptic demand for exceptions to copyright to enable them to profit commercially from the orphan works in their custody, and to license all of modern culture to the general public. To hell with its creators and rights-holders and their careers and livelihoods, eh?

Problem is, their assertions lack credibility, so they have to big them up with concocted ‘evidence’. How do they go about it? The way everyone else does, with an online survey, and then advertise it the way everyone else does, by tweeting it, and getting their pals at the Intellectual Property Office to re-tweet it for them:

"RT @CollectionTrust: The Strategic Content Alliance is re-running 2009's 'In from the Cold' research into Orphan Works. Have your say now -"

There are rules for conducting surveys intended to produce reliable, objective data. A primary rule is not to write introductory text and ‘leading’ questions in such a way that the responder is led towards returning particular answers. The survey must be impartial, in other words. With that in mind, we invite you to consider the introduction to ‘Fill in our orphan works survey for the chance to win a Kindle’:

  • 'Orphan works (works for which the rights holders are unknown or cannot be traced) represent a significant barrier to education, research and innovation. Their management requires disproportionate amounts of public funds at a time of austerity, and significant difficulties of tracing rights holders results a potential black hole of 20th and 21st century content.' There’s nothing quite like telling your respondents what to think, is there? This paragraph alone should invalidate the whole project. Disproportionate when compared with what? Also: 'barrier' to what, exactly? In what way?
  • 'We need your help in building the evidence base to support you to deliver digital content more efficiently and effectively,’- So you make your assertions to Government without an evidence base? Isn’t this what Hargreaves called 'lobbynomics'?
  • ‘…we think it is important to provide policymakers with empirical evidence on which to base decisions rather than lobbynomics.’- It is, and in this biased survey that is exactly what you are not doing.
  • 'In the recent Independent Review of IP and Growth, Professor Ian Hargreaves stated that the Government “…should begin by legislating to release for use the vast treasure trove of copyright works which are effectively unavailable – “orphan works” – to which access is in practice barred because the copyright holder cannot be traced. This is a move with no economic downside”.' - No it isn't. That claim has already conclusively been debunked. One of the many economic downsides is lost tax revenue for HM Treasury as a consequence of lost or undervalued license transactions of copyright material.
  • Many other countries already have solutions for orphan works.' - Which countries? What solutions? A few do; but not many, and their 'solutions' are not comparable to Hargreaves' proposal. And what, exactly, is the 'problem'?
  • 'The European Union is also proposing a Directive on Orphan Works.' - It is, and again it is barely comparable to Hargreaves' proposal.

Let’s analyse some of these survey questions:

  • The definition of 'orphan works' is elastic and imprecise: 'works for which the rights holders cannot be traced or are unknown' - Who has tried to trace them? Why? wWhen? How? For what purpose? - Q13
  • Respondents are not asked to explain how they arrived at the figure for the proportion of orphan works in their collection; what type of evidence are they using? - Q14
  • ‘Please provide an estimation of the direct costs involved in rights clearance (fees paid to rights holders for any permissions required) in euros' - Q24 - What’s this doing in here? By definition these are not orphan works. Why should rights-holders not be paid reasonable, directly negotiated fees for the use of their copyright work?
  • ‘Please provide an estimation of the indirect costs (eg staff time associated with tracing rights holders and/or seeking any permissons required) in euros' - Q25. Over what period of time? In relation to how many works, of what kind? For what projects?

'We know what a chore survey completion can be, but we think it so important to provide policy makers with empirical evidence on which to base decisions rather than ‘lobbynomics’ we implore you to complete the survey.'

The results of this survey are to be treated as 'evidence'? 'Empirical', yet? And they are not a lobby?

It tells you something when the august cultural heritage organisation members of the Collections Trust, Strategic Content Alliance and their fellow-travellers have to sink to such ludicrous survey bias in order to concoct 'evidence' to shore up their fragile assertions. That, or they really are so clueless in their ivory towers that they simply assume everyone thinks this way.

In Stop43’s experience it's six of one and half a dozen of the other. We’ve been to meetings and heard statements uttered that would leave most creators speechless. We’ve been interviewed by professors of copyright who had no idea what image metadata was, had never seen image file metadata, were astonished to see the BBC's stripping of it demonstrated, and were speechless when confronted with the power of Picscout. They act as if none of this existed, and so lobby for 'a 21st century digital copyright regime' accordingly. The level of practical ignorance in IP academia is truly astounding.

The road to hell is paved with good intentions. There have been other instances lately of politicised academics twisting data to fit arguments, with the best of intentions. That's not the way to do science, and it's not the way to gather statistical data or ‘empirical evidence’.

If the cultural heritage sector is so confident of its case, it ought to be capable of running an unbiased survey. It isn't. CEPIC have just complained about Ben White of the British Library misrepresenting their involvement with ARROW at the BIS Select Committee hearing at which Stop43 also spoke.

And Finally...

There are going to be the usual unforeseen consequences of what the Cultural Heritage Sector are lobbying for; what Donald Rumsfeld might have referred to as the ‘unknown unknowns’, except that they are ‘known knowns’ if anyone can be bothered actually to ask creators and take note of what we say:

‘Why doesn’t the survey attempt to find out what the impact of orphan works legislation on libraries and museums would be, in terms of depriving them of access to works whose authors fear that they may orphan them? Or of making access to those works much more expensive to take account of the orphaning risk? Or of depriving all of us of valuable new works because the authors either are too afraid to distribute them, or don’t bother to produce them in the first place because they know they will be stolen?

Is it really in the interests of cultural institutions to undermine the cultural sector, just for the sake of promoting state sponsored theft of a few existing works? - Simon Crofts, photographer and ex-international lawyer.

‘It seems to me that a large proportion of those who use intellectual property, in my case photography, and the academics and bureaucrats attempting to dismantle copyright protection, have no idea of the consequences of what they are proposing.

I am already changing my business to reduce my dependence on digital distribution of my work. With the threat of losing the benefit of all the work that I have done and all the work that I will produce in the future I am returning to paper in terms of prints, books and magazines. I am very far from alone amongst creative businesses in distancing myself from the medium that you wish to promote.
Far from stimulating digital commerce, your intentions are driving away quality and originality and will reduce the choice of work available.- Peter Bowater, Fine Art photographer.

‘I am a photographer and publish my work as postcards and books. My local research library have asked me to donate a set of my postcards to their archive. Let’s assume we are talking about 2,000 images which are also my best selling images and earn my business enough to employ five staff. Suppose I retire and sell the business. Any buyer is going to want to have the rights to continue using my images for a reasonable time into the future. Lets say 25+ years. Perhaps after my death.

‘If the library digitises my work and puts it on the web it will immediately open it up to infringement. While I may have no objection to the library keeping physical copies I would have to restrict their digitisation to maximise value in what I can get for my business. Actually, because libraries are not listening to photographers’ concerns, I no longer trust them. I will probably decide not to donate a set of images to them anyway.

This same research library published a list of about 100 paintings the county own which they referred to as ‘orphans’. A search on Google established that one of the painters had been dead for over 100 years so was no longer in copyright. I knew that the library had easily cleared permissions with another painter on the list over 10 years before. Yet another had only died a few months before and was still alive and in the local phone book when the list was first compiled.
The truth is that some curators want Orphan Works legislation to cover up their own incompetence.’ - Bob Croxford, Atmosphere Picture Library.

If the Cultural Heritage Sector gets its way it won't matter if Bob donates his postcards or not. All the library will have to do is go to the local shop, buy the postcards, and digitise them under an Extended Collective Licensing scheme designed to facilitate mass digitisation projects. It will then stick them on the Web and destroy the value in those images that currently supports his five staff. Bye bye, business, and bye bye the tax income the Treasury derives from it.

And we thought ‘Digital Opportunity’ was a plan for growth?

Lobbynomics: An Occasional Series

In his report, Professor Hargreaves bemoaned the ‘lobbynomics’ surrounding copyright, calling instead for empirical evidence upon which policy should be based:

‘Much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of “evidence” supporting the arguments of lobbyists (“lobbynomics”) rather than as independently verified research conclusions.’ - Digital Opportunity - A Review of Intellectual Property and Growth, page 18

From the tone of his writing you’d think that the lobbying he complains of is confined to private companies and ‘corporate rights-holders’ lobbying politicians and civil servants.

Not so.

The public sector carries out every bit as much lobbying as the private sector does; it just tends to be, how should we put it, perhaps a little less polished in its methods.

Herewith follows a series of articles examining the lobbying efforts and groundless assertions masquerading as ‘independently verified research conclusions’ by the Cultural Heritage Sector, academia, parts of the political Establishment, quangos, and others.

Let’s not forget that public sector lobbyists’ salaries and consultancy fees are paid from your tax contributions.