Stop43.org.uk stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43






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 info@dacs.org.

Be our guest.