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.