What is Extended Collective Licensing?
There has been considerable confusion over what the proposals in the Digital Economy Bill for Extended Collective Licensing (ECL) mean.
This is our current understanding. We present the steps in chronological order. Creators who are concerned about loss of control over use of their work will find the final stages of most interest.
1) IF the relevant clause makes it into a Digital Economy Act THEN:
2) There would be a massive consultation (i) over the content of the rules the Minister makes setting out the conditions for authorising bodies to negotiate ECL - these rules would be laid before Parliament in the form of a "Statutory Instrument".
The CRA proposed in Committee stage that ECL is not acceptable unless there are clear rules setting out that all creators must have the right to be identified and to defend the integrity of their work and protecting identifying information (and other "metatada") that must accompany each use of a work, under ECL or otherwise.
3) Then there would be a massive consultation (ii) over the content of the Code or Codes of Practice under which any authorised bodies would operate.
4) Then a body would apply to be authorised, under the rules decided in (2) and (3). Guess what? More consultation (iii) on whether it was a fit body.
The CRA proposed in Committee stage, and continues to insist, that the only bodies that should be able to apply for authorisation to issue ECL should be those that genuinely represent all those who hold rights in the class of works to be licensed - writers, photographers, their publishers, etc. In effect, only properly democratic collecting societies.
5) Then a body would be authorised. A would-be user would apply to it for a licence. On 8 February Ministers made a new commitment that the rules in (2) would specify that every individual application for an ECL be publicised to all affected.
6) So there'd be another consultation (iv) on the terms of the proposed licence.
Note that, contrary to a widespread misunderstanding about ECL, it would involve one user negotiating with one collecting society to make one specific use of one class of works.
The Bill would also insert a Schedule A1 into the Copyright Designs and Patents Act 1988, allowing for Ministers to regulate collecting societies. Any collecting society that failed to follow the rules would risk having its authorisation withdrawn, and/or being fined.
At this point it is politic to consider fictitious examples.
Say the (fictitious) Sculpture Distribution Society (SDS) applies for, and gains, authorisation to issue ECLs.
The (equally fictitious) National Sculpture Archive (NSA) applies to SDS for a licence permitting it to make 3D scans of sculptures in its collection and put them online. The application is advertised.
In negotations, SDS points out that the existence of 3D printers means that this would have a significant effect on the "normal exploitation of the work", in the international law jargon. People could make their own reproductions at home, believing that the NSA was "free" and "public". But they'd be wrong.
Anyone who sold such a reproduction would still be liable to be sued by the sculptor and/or SDS.The licence does not permit anyone except NSA to do anything, nor does it permit NSA to do anything except put scans online.
So SDS sets a high fee. NSA miraculously gets government funding. The nation's sculpture heritage is preserved, albeit virtually.
NSA does not have to check whether it can find any particular sculptor: so the question of "orphaned sculptures" is completely avoided. NSA pays a cheque to SDS, and provides information about (a sample of) downloads. SDS distributes the money to sculptors, based on that sample information.
On the other hand:
The Naff Nicknacks Company applies to SDS for a licence to make and sell reproductions of sculptures, without asking sculptors. It is told it must take out advertisements in the national and sculpture press, and write to all known sculptors. It persists.
Even before the outcry from sculptors reaches crescendo, SDS says "no way". However venal and corrupt militant sculptors may allege it to be, it fears losing its authorisation to issue licences (and its fee for administering them).
7) Some sculptors are unhappy about the ECL granted to the National Sculpture Archive. So they opt out of it.
On 8 February Ministers said that any creator would be able to opt out:
- all their works; or
- a class of work (for example portrait photography as against news); or
- particular, specified works.
As we understand it, to opt out of an ECL that covered their work a creator would need to write to the body (collecting society) that negotiated it.
What an opt-out means is that:
- the creator's name is published in a register of opt-outs;
- no-one can use their opted-out work without negotiating with them; and
- if anyone does use that work without consulting them, they retain the right to sue (though that right isn't as strong as it should be).
So it is, in effect, for the opted-out creators, as if that ECL had never happened and the current situation (unsatisfactory, to be sure) persists.
Clearly, the possibility of a mass opt-out will further concentrate the mind of any body negotiating an ECL.
Draft by Mike Holderness, 24 Feb 2010