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ECL

The Cultural Heritage Sector has vast collections of stuff it wants to digitise and make commercial use of. Trouble is it doesn’t really know which in its collections are ‘parented works’ (for which the creators’ contact details are known); ‘orphan works’ (for which they’re not); and ‘public domain’ (which are out of copyright and free to use for any purpose).

To find out which is which would require them to undertake a ‘diligent search’ for the rights owner of each work.

Sadly they can’t be bothered to do this, claiming it would cost them too much time and money to find out who actually owns the intellectual property in their custody. Nice. Imagine if everyone had this attitude to, say, bicycles, or bank accounts.

Instead, they want to be able to go to a ‘Collecting Society’ to get an ‘Extended Collective Licence’ (ECL) allowing them to digitise and use this stuff without first having to find out who its owners are, get their permission, and pay them. Oh, and the licence will be at a rock-bottom price, too. The result will be nationalisation of intellectual property, with state price regulation.

This is a blueprint for a forced collectivisation programme.

We have seen the results of previous forced collectivisation programmes. In the Soviet Union, Stalin collectivised the farms and expropriated the kulaks - independent peasant farmers. This did severe damage to agricultural production, resulting in widespread famine. One can also consider the farm 'reform' in Zimbabwe, the result of which is similar: the transformation from a country once called 'The Breadbasket of Africa' into one that is almost entirely reliant on humanitarian aid, as most of its farming expertise has gone.

Western market economies no longer look to nationalisation, the public collectivisation of work and property, as an efficient solution to structural economic problems. It is a last resort.

“Ah, but ECL will be voluntary - anyone can opt out”, says the Intellectual Property Office.

'... in a conversation about extended collective licensing, it is always blithely said, "Oh, well if you do not like it, you can opt out." This was the crux of the Google Books settlement in the United States. Even there, with a much looser copyright regime than ours, a US judge, Judge Chin, threw out that settlement. He said it is not good enough to say to an author you can opt out. "It inverses the normal operation of copyright," was the phrase he used in his judgment. We have to be very careful when we blithely say, ‘Oh, it’s okay; if you don’t like it, you can opt out after the fact." Not all rights holders, especially small rights holders, will know that they have been opted in.' - Richard Mollet, to the BIS Select Committee

HubVsECL

The EU has specifically rejected ECL as a solution to the 'orphan works problem'. ECL schemes in the Scandinavian countries have been used by the IPO as an example, but Nordic ECL is very different to what the IPO wants here, and not at all comparable.

ECL_Bar_Chart

This Clause simply has to go.



Extended Collective Licensing (ECL) - the problems