Arts Council England’s response to the Copyright Consultation
Arts Council England champions, develops and invests in artistic and cultural experiences that enrich people's lives. We support a range of activities across the arts, museums and libraries - from theatre to digital art, reading to dance, music to literature, and crafts to collections.
We agree that the proposals set out in the Copyright Consultation reflect the long recognised need to review, update and clarify the UK copyright framework. We broadly support the proposals but recognise that their ultimate effectiveness will depend on the details surrounding their implementation. It is vital that the balance is maintained between removing unnecessary barriers to growth, and ensuring that creators receive fair reward for their work and the creative assets they generate.
Orphan Works
We broadly support the proposals which will enable the licensing of orphan works. Many arts and culture organisations hold public collections which remain ‘hidden’ due to current legislation. We support proposals which will enable these cultural assets to be made more publically accessible for educational, cultural and research purposes, and which in turn can have economic benefits for the rights holders. We hope that the new licensing regime will prevent the creation of orphan works in the future by encouraging clear attribution and (where possible) the use of standardised metadata.
Many orphan works held by public sector organisations were not created for commercial purposes. Therefore any fees applicable to arts and culture organisations in licensing works within their own collections should be nominal. We agree that any provisions for the commercial re-use of orphan works should comply with the Berne convention and other relevant laws.
We favour a transparent licensing system which employs diligent searches and offers fair remuneration to absent rights holders.
Collecting Societies
We read with interest your proposals on Extended Collective Licensing. We support a streamlined process but believe that any new scheme should be voluntary. We also agree that consent by the majority of a society’s members (rights-holders) is essential in the qualification and granting of permission for societies to operate an extended scheme. We would like the Government to be clearer about how a ‘sector’ is to be defined in relation to the changes proposed for collecting societies. We would also like to hear from the Government about how it will ensure there are no ‘sector gaps’ where rights holders might find themselves without the option of representation.
We agree that a code of conduct could be helpful to ensure both consistency and transparency across ‘sectors’ for both rights holders and rights users.
Exemptions to copyright
We recognise the need to clarify the copyright exemptions which are permitted in the UK, and these should be easily understood and ‘reasonable’. We strongly agree that any use or reuse of creative works without permission should not be to the detriment to creators or creative industries, their reputation or future earning capacity.
We support the widening of the preservation exception to ensure that valuable cultural items can be preserved and made more accessible. We also support the extension of exceptions to include a fuller range of formats, especially to aid research and education.
The exception relating to parody, caricature and pastiche is complex for the arts sector. On the one hand, an exception would provide opportunities for those artists and creators who innovate artistic practice through ‘mash ups’ or re-working existing content. On the other hand, we recognise the potential impacts identified in your proposals, including the impact on the original creator’s reputation and future sales. We agree that the creator’s moral rights should continue to be considered, and that any derogatory treatment of an original work should not be permitted.
We would recommend that the Government considers carefully the responses and evidence it receives about the parody exception, in particular reviewing whether the opportunities for economic growth would outweigh any potential damage to UK creators.
Protecting copyright exceptions from override by contract
In the interests of clarity and transparency, we agree that private contracts or agreements should not be able to override legislation.
Copyright notices
Much of the arts and culture sector is made up of individuals, micro businesses and small and medium enterprises. We therefore welcome proposals that would make the Intellectual Property Office responsible for publishing notices which clarify copyright law and its application. More detailed guidance on how to protect work and prevent infringement, as well as the proposed dispute resolution service would also be helpful for those working in the creative sector but who are unable to afford full legal advice.
Overall we believe that the proposals have the potential to benefit the creative and cultural sectors and the general public, as well as the wider economy. We hope that as the proposals are developed, the Government continues to work towards balancing the business growth of rights users with rights holders. Arts Council England is keen to work with the Government to ensure that the implementation of legislation will benefit the creative, cultural and economic interests of the country.
21 March 2012