According to the consortium: The Government’s proposals are being implemented through the Enterprise & Regulatory Reform Bill, currently being debated in the House of Lords. Controversially, the Government proposes to make wholesale changes to UK copyright law via secondary legislation and without the benefit of Parliamentary scrutiny, which includes time for public review and comment. The consortium has delivered a Letter Before Claim to Business Secretary, Vince Cable, which is the first step in the process of initiating a Judicial Review - a formal legal challenge to the Government’s planned legislation and the manner in which it proposes to introduce it.
The consortium includes The Associated Press, Getty Images, Reuters, British Pathe, The Press Association, and the Federation of Commercial and Audiovisual Libraries, who operate advanced digital licensing businesses of content on all formats. In order to meet the changing needs of users in the digital age, members of the consortium have, in recent years, invested heavily in the building of innovative digital delivery platforms and infrastructures which allow their content to be accessed and licensed easily and efficiently, also ensuring that content creators are fairly and promptly compensated for their work. This in turn incentivises an independent and thriving community to invest in creating new and rich digital content and, in doing so, benefits the economy and society as a whole. The consortium believes that the economic growth arguments originally put forward to justify the Government’s proposals are without basis and has challenged the Government’s plans to introduce its proposed changes through so-called `Henry VIII clauses` - secondary legislation which is not subject to the full scrutiny of Parliament, which includes visibility to the public.
The planned legislation has arisen from reforms proposed by Professor Ian Hargreaves in a report commissioned by David Cameron in 2010 and published in 2011. In his report, Hargreaves opined that British copyright law was not fit for purpose in the digital era and suggested a number of radical changes to the law which was calculated in Appendix EE to his report to create between £55bn and £79bn in GDP contribution for the UK economy over 10 years. This has been disputed by many in the UK creative industries. These doubts are vindicated in the IPO’s follow up report of 20th December 2012 on implementing new Exceptions to Copyright, after review by the Government’s Independent Regulatory Policy Committee. They reduce the minimum benefits from these new exceptions, which were included as part of the total in Appendix EE, from £4bn to £0.5bn, and the maximum from £26bn to just £0.79bn. These are reductions of 87% and 97% respectively for the smallest and largest projected benefits.
Many prominent rights holders both in the UK and overseas have expressed concerns that not only will such growth not be achieved, but that existing revenues will be damaged by the proposed legislation. Professor Hargreaves proposed a number of changes to copyright law, some of which have been supported by the consortium and other rights holders, including new provisions for private copying, new rights for disabled groups to use content freely, and the ability of archives and museums to digitise copyrighted content that they do not own but wish to preserve. However, the consortium is concerned about three proposals that it believes will damage the UK economy.
The first concerns the widening of ‘exceptions to copyright’ which allows for content to be used without paying a licence fee under certain circumstances, which the consortium argues will remove many instances where creators can currently be paid for their work. The second contentious proposal concerns the shortening of the life of copyright in some circumstances, which again removes the ability of owners of copyrighted works to be compensated for the commercial use of their property. The third concerns a system known as Extended Collective Licensing which allows for third party organisations to commercially exploit the copyrighted works of others without their prior consent. The consortium and other rights holders are concerned that reducing or removing their ability to commercially license their content will have a direct impact on their ability to create it, leading to both economic and societal damage. There is particular concern in the area of news provision where much international news content consumed by the public originates from international news agencies, who rely entirely on their ability to commercially license news content in order to fund their newsgathering activities.
Not only are the proposals contentious but, crucially, so too is the manner in which they are being introduced. Firstly, many rights holders have repeatedly pointed out to the IPO that significant details about how the new legislation will work in practice have not been properly considered and that without such detail having been thought through, a huge amount of uncertainty will descend upon both users and suppliers of content. Secondly, many rights holders have expressed grave concerns that changes are to be made via secondary legislation without the full scrutiny of Parliament and visibility to the public which would ordinarily be given to such weighty changes in the law. If the copyright clauses in the Enterprise & Regulatory Reform Bill are passed in their current form, this will leave the door open for further changes to copyright to be made at short notice by future governments via ‘the back door’.
The consortium has taken legal advice on the new legislation and the manner of its introduction, resulting in it issuing its Letter Before Claim.
The consortium believes that any changes to the UK’s copyright framework should be industry-led and fully supports the creation of the ‘Copyright Hub’ - an initiative led by businesses and stakeholders to create a digital registry of copyrighted works.
A spokesperson for the consortium said, “The UK’s content licensing sector is one of Britain’s great success stories, revered throughout the world and characterised by technical innovation and enterprise. The sector contributes billions of pounds to the UK economy and the changes being introduced through the Enterprise & Regulatory Reform Bill have the potential to seriously disrupt a vibrant and growing industry sector. We call on the Government to listen to businesses and to work with them in growing the UK’s digital economy.”
