Independent Review of Intellectual Property and Growth
Response from the BBC and BBC Worldwide
1. Introduction
The BBC welcomes the opportunity to respond to the Government’s
Independent Review of Intellectual Property and Growth call for evidence. The
Intellectual Property (IP) framework plays a fundamental role in the creative
industries, helping to incentivise the creation of new works, design and
technologies by ensuring that those who have invested in making something
new are rewarded for their efforts. IP is central to creating the right
environment for growth by enabling entrepreneurialism and innovation while
also delivering appropriate protection to rights holders.
1.1 BBC’s contribution to growth and the UK economy
As the largest public service media organisation in the UK and one of the
largest in the world, the BBC is involved with many dimensions of the IP
framework – from copyright to patents to rights enforcement. Each of these
elements is important in helping the BBC - a major rights holder and creator
of intellectual property and a major user of rights - to meet its public
purposes and obligations set out in the Charter and Agreement and to
remain at the forefront of creativity in the media sector.
The BBC also relies on the IP framework as a major contributor to the UK
economy. In 2009/10, the BBC’s Gross Value Added1 – generated by both its
public service and commercial activities – was around £8.2 billion2. Or in
other words, at least two pounds of economic value was generated by every
pound of the licence fee, not only through the BBC’s direct expenditure, but
also by delivering broader benefits to the digital and creative industries
which spill over into the wider economy. These wider effects include the
impact that BBC training has on the creative sector and important local and
regional benefits3.
The BBC has been pivotal in developing digital services and platforms,
consistent with our sixth public purpose “to deliver to the public the benefits
of emerging communications technologies and services.” We have helped to
drive adoption of digital media and worked with partners to develop
An organisation’s Gross Value Added (GVA) provides an estimate of the value generated for
the UK economy (reflecting both immediate expenditure on people, infrastructure and
services and any indirect consequential effects on the wider economy).
2 See http://www.bbc.co.uk/aboutthebbc/reports/
3 The BBC’s activities in Scotland, Wales and Northern Ireland contribute £355m, £292m and
£138m respectively to the UK economy. On a local level, the BBC has been instrumental in
the generation of “creative clusters” in South Wales.
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technologies and services that enhance competition – for example,
promoting take up of the internet, High Definition TV, Video on Demand
services and Digital Audio Broadcasting.
Digital TV, in particular, has been a huge success. BBC R&D developed
intellectual property, including technical specifications, as part of its public
service remit and was able to share these specifications as open standards
with the industry association for digital television in the UK, the Digital
Television Group, to ensure that the technology was as simple, open, and
accessible to all as possible. These open standards have enabled a more
competitive market place to develop by stimulating the supply of set top
boxes by manufacturers. As a result Freeview is now in 18.7 million homes. It
has brought the benefits of interactivity and paved the way for next
generation IPTV services.
More
generally,
BBC
R&D
releases numerous Research
White
Papers, contributes to open source software initiatives, and where
appropriate adopts an open innovation model, partnering widely with
academia and industry work. Our commitment to world-class research,
partnerships, and open standards ensures that BBC innovation brings broad
industrial benefits. The UK IP framework is crucial in how we can achieve
this.
A strong IP framework is also essential to the BBC’s commercial arm, BBC
Worldwide Ltd (BBCW). BBCW acts not only for the BBC but also distributes
programmes and products for, and makes programmes and products with,
an array of independent UK companies and producers, all of whom benefit
from the commercial skills and international presence that it can deploy.
BBCW accounts for 10% of the DCMS categories of Creative Industries exports
in which it is active, and is a major driver of cultural exchange between the
UK and the rest of the world.
However digital technology has had a dramatic impact on the way that
content is made, the way that it is distributed and the way that audiences
access content. These changes have posed challenges for broadcasters and
the existing IP framework. It is therefore timely that the Government has
asked Professor Ian Hargreaves to lead this review.
1.2 Structure of our response
The remainder of this submission answers some of the questions posed in
the Call for Evidence on copyright, patents and enforcement of rights in more
detail. We have, for each subject considered the following questions:
• Why is the issue relevant to the BBC?
• What are the key barriers to innovation and growth within the current
regime? and
• How might the Government reduce or eliminate these?
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The BBC strongly supports the IPO’s evidence-based approach to the review
and as requested in the Call for Evidence document, where possible, we have
provided relevant case studies, data and examples to support our arguments.
1.3 Key recommendations
The BBC believes that reform of the IP framework could reduce the barriers to
growth in the broadcasting industry and enable broadcasters to increase
their contribution to the UK economy.
The BBC, as both a major rights holder and a user of rights, believes that the
following key elements should underpin an IP system fit for the digital world.
Ideally the system should:
•
Balance strong copyright protection with straight forward access to
copyright material.
•
Protect and reward truly innovative research and development.
•
Ensure that the costs of enforcing rights are proportionate to the
benefits, building on existing structures as much as possible to reduce
costs.
•
Reflect the multi-territorial and global capacity of the internet.
•
Be simple, cost effective, platform neutral, future proof, transparent
and underpinned by legislation where appropriate.
The BBC recognises that it will not be possible to achieve this regime without
reform at the European level, though measures such as the European
Commission’s planned Intellectual Property Rights strategy and Directives on
Orphan Works and Collective Rights Management will help. Nevertheless this
review presents a valuable opportunity to move the existing UK IP framework
closer to the ideal. Our submission suggests that to achieve this ambition,
and to further promote entrepreneurialism, economic growth and social and
commercial innovation, the review team should consider a number of specific
changes to the IP framework.
Copyright
1. The introduction of extended licensing schemes (which enable collecting
societies and other bodies to act on behalf of all rights holders within a
sector) would lower the administrative costs of rights clearance (by reducing
the need for broadcasters to clear rights on an individual contributor basis)
whilst at the same time guaranteeing remuneration for rights holders who
might find it difficult in practice to obtain use payments. These schemes
therefore offer a much less complex and costly route to clearing rights in the
digital age and would facilitate editorial innovations such as archive release.
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2. On the whole, the current UK exceptions regime sufficiently balances
strong copyright protection with straightforward access to copyright
material. However a modest expansion of the fair use exceptions regime to
cover (i) parody, pastiche and caricature (ii) fair dealing of photographs for
the purposes of reporting current events and (iii) research would modernise
the copyright regime in a few important areas and help to support a more
innovative and creative digital environment.
Patents
3. The patents framework can, in some instances, act as an obstacle to
growth, primarily because it lets too many weak patents into the system. The
introduction of a one stop shop ‘repository’ for prior art (i.e. evidence that a
patent application is not new) that the patent office can easily search would
strengthen the patent examination process and reduce the number of
patents in the system.
4. BBC R&D experience suggests that the process of obtaining a patent is too
lengthy and this can cause uncertainty in planning, particularly in areas of
fast moving technology. A review of the existing peer review process would
make the patents system faster, cheaper and more robust.
5. Expansion of the proposed UK IPO peer to peer trial (similar to the USPTO
one) to digital media and broadcast technology (if it does not do so already)
would make the patent system more efficient and effective.
Enforcements of rights
6. Further changes to legislation are required to help rights holders to
enforce rights. In particular:
• Clarification of the definition of ‘effective technological measures’ in
current legislation would provide greater certainty for rights holders
taking legal action against creators/distributors of software designed
to break Digital Rights Management (DRM).
• Clarification of section 73 of the Copyright, Designs and Patents Act
1988 (CDPA 1988) would address the problem of online streaming of
channels by companies such as TVCatchup.
7. Encouraging greater pan-European harmonisation would reflect the multiterritorial and global capacity of the internet and enable the BBC to litigate
against providers of servers physically located outside of the UK.
8. Regulations to ensure that the operators of websites used for widespread
piracy share some legal, technical and financial responsibility for dealing with
the problem would ensure a fairer, more proportionate distribution of costs
between rights holders and site operators.
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2. Call for evidence: Copyright
2.1 Why is the copyright framework important to the BBC?
Copyright and rights payments are highly significant to the BBC. The
programmes that the BBC commission cover a broad range of talent,
contributors and underlying rights that shape and define the BBC’s output.
Some individual programming (e.g. a major drama or documentary) can
involve several hundred contributors. In 2007/08 the BBC issued 305,000
contracts to contributors for in-house programming alone and each week
some 250,000 items of music are reported to the Music Collecting Societies.
The present UK copyright framework has largely served broadcasters and
those involved in the content creation chain well, rewarding and recognising
creative endeavour, whilst at the same time encouraging creativity and
innovation. Over the last decade the BBC has been at the forefront of
delivering to audiences the benefits of emerging technologies with
innovations such as the iPlayer.
2.2 Barriers to innovation and growth within the current regime
However, the BBC believes that there are problems with the current copyright
regime because (i) the current regime is too complex, making it difficult and
expensive to clear rights in the digital age and (ii) some aspects of the
exceptions regime are restrictive.
2.2.1 The complexity of rights clearance in the digital age
Digital technology has heralded many opportunities for both broadcasters
and audiences. It is now much less costly to make content. New platforms
have emerged and as a result audiences are now able to access content in a
variety of ways on an on-demand basis – not only through digital terrestrial,
cable and satellite television platforms, but also via mobile platforms and
games consoles. But these changes have made it difficult for the BBC to
deliver a broad range of high quality content to all licence fee payers on a
cross-platform basis.
(i) High costs of clearing contributor rights
A particular problem is the high costs of clearing underlying rights included
within programmes. The BBC spends around £1.1 billion on rights payments
out of a total programme spend of £2.4 billion. These rights payments are a
critical element of the creative economy ensuring that those involved in
programme making are rewarded for their efforts. The BBC also spends
almost £10 million per year on the administrative function of rights
clearance. This is money that does not go towards rewarding creativity. It is
simply a deadweight loss that benefits neither producers nor consumers,
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reducing the amount of money available for programming making and
investing in content.
This is not a new problem – programmes have always comprised many
different underlying rights (see the example on ‘Clearing the rights for
Doctor Who’). However, audience appetite for on-demand archive content is
increasing and this poses additional challenges.
Clearing the rights for Doctor Who
Doctor Who, a BBC in-house production, is one of the BBC’s most well known brands. In the
UK the science fiction drama series attracts a broad family audience. Last year, the Christmas
Day Doctor Who episode reached over 12.1 million people, making it one the most watched
programmes of the year.
Doctor Who also offers many opportunities for secondary commercial exploitation –
including distribution of the back catalogue, sales of videos, DVD and Download-To-Own,
apps, live events, games, magazines, merchandise, books, audio and clips. Last year, the
series helped to give BBC America its best ever ratings and it was sold to 50 territories
globally. In the UK alone over 600,000 DVDs and the same number of books are sold per
annum as well as 1.5m items of toys and other merchandise.
The table below shows the number of underlying contributor rights typically included in a
single episode of archive Doctor Who. When the programme was originally made, the
Production Manager would have had the responsibility for ensuring all the underlying rights
included in the episode were cleared for use on the BBC’s public services. (Typical
agreements would have granted permission, subject to further contractual payments, for
unlimited transmissions and five years for Public Service uses). However, if we now wish to
repeat the episode or make the programme available on a new platform, we may need to
request permission to do so from the underlying rights holders or arrange a fee. In some
instances this is relatively straight forward as the BBC can negotiate with a collective body
with a mandate to act on behalf of all its members. However in other cases we may need to
seek permission for re-use from individual contributors. This is both time consuming and
costly.
Average number of contributions per episode
Type of contribution
Music tracks+
Orchestras+
Specially commissioned
Walk –
ons+
Actors+
2
music+
Supporting or Additional Dialogue artists+
Directors+
Script*
Character format*
Show runner*
Literary extracts*
Photographic stills*
Average number of contributions per episode
1
16
14
15
12
1
1- 2
2+
1
1
23
Collective body with mandate
*Individual contract binding to third party group required (not retrospective)
+
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The introduction of an extended collective licensing framework would greatly simplify this
complex aspect of the production process – particularly for pre-existing material such as
publications, art, photographs and film footage.
The BBC Archive currently comprises around 1 million hours of programmes
(split into 600,000 hours of television content and 350,000 of radio
programming) and a key objective of the BBC’s strategy Putting Quality First
is to make more of the BBC’s archive available to the nation over the course
of the next decade through a mix of public service and commercial activities.
Building our online archive not only connects audiences with the best that the
BBC has ever made but it helps to combat digital piracy. However, the costs
of rights clearance are a barrier to this editorial innovation and also reduce
the available investment for new content.
Costs of tracing known contributors
Programmes in the BBC Archive cannot be made available without the
permission from the underlying rights-rights holders and contributors to the
programmes. Given that many of the programmes in archive date back to a
time before online availability was an option, the BBC only has rights for
linear broadcasts and under present rules, if the BBC wanted to make its
archive available online, it would need to obtain permission to do so from,
and make rights payments to, possibly as many as one million named rights
holders and contributors (and for many on an individual basis). This can
impose considerable deadweight administrative costs (distinct from rights
payments to creators) which benefit neither audiences nor the creative
industries.
Evidence from the BBC Archive Trial
In the second half of 2007 the BBC made available around 1,000 hours of archive
programming available online for streaming in order to assess the appetite and interest
among audiences. Programmes material was deliberately selected from programme genres
such as documentary, other factual and natural history which are generally less complex in
rights administration than, for example, drama and comedy. It took around 6,500 person
hours to check 1,000 hours of programming for rights implications and the archive trial
team subsequently had to obtain permission for use from about 300 individual or collective
rights holders. These trial data suggests that administrative costs of clearing the entire
archive would be prohibitively expensive. We estimated that it would take 800 staff around
three years to clear the entire BBC archive at a total cost of £72 million (equivalent to about
2% of the BBC’s annual licence fee income).
Costs of using and tracing orphan works
It is not always possible to trace underlying rights holders for orphan works
for a number of reasons.
• The existence of underlying rights may not always be clear e.g. we
cannot always determine whether presenters of a show wrote their own
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•
scripts or simply voiced a script written by someone else. While
performance contributions are currently protected by copyright for a
period of 50 years, there may be other elements (e.g. pre-written
script/literary content) protected by copyright for a longer term of
lifetime + 70 years. In many cases these elements were not identified
in early programmes or programme listings. It is therefore impossible
to know if there are contributions within the period of copyright
protection or not.
It is not always possible to identify or to contact the rights holder. This
happens, for example, in the case of anonymous contributions, or
where it is not possible to determine who has inherited rights upon the
death of a rights holder.
The BBC can, in some instances, work around the problem of orphan works
and so the inability to contact or trace the underlying rights holder will not
always prevent us from making a programme available. Sometimes, if after a
diligent search we are still unable to trace the contributor, we will set aside
money on an ‘await claim’ basis. If the rights holder eventually comes
forward we will then use that money to make a rights payment. However, this
is not an efficient process. We have to devote significant resources towards
identifying missing contributors and there is real cost to the BBC of having to
set aside money and of the uncertainty of using content that is awaiting a
claim. In 2009/10, £8.9m of programme sales contained contributions that
the BBC was forced to await claim on, due to uncertainty about clearance
such as untraceabiity or a failure to respond to a clearance request.
The impact of rights clearance on BBCW’s commercial activities
The existing copyright framework poses challenges for BBCW as it can be difficult to clear all
the rights in sufficient time to facilitate a deal. In the digital age ‘speed to market’ is critical
to maximise returns and often with new types of technology there is only a limited window
of time to leverage the best deals. However the complexity of the clearing rights for
commercial purposes has sometimes previously prevented BBCW from pursuing commercial
opportunities.
For example, BBCW lost out on a lucrative deal several years ago involving making classic
comedy clips available on mobile phones at a time when delivery of content to mobile
phones was in its infancy. However, the deal did not go ahead because it took BBCW around
a year to clear all the rights partly because BBCW had to contact some groups of rights
holders on a contributor by contributor basis. The delay to the proposal not only damaged
Worldwide’s professional relationship with the operator, but also lost everyone money
including the talent.
(ii) Fragmentation of rights on a geographic basis
BBCW also faces challenges relating to the licensing of rights in different
countries. The online environment enables content services (such as the
International iPlayer) to be made available across country borders, but
broadcasters are currently being constrained from doing so because of the
difficulties created by the fragmentation of rights, not only between rights
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holders within the same national territory but also on a geographic basis.
This means that if BBCW is to make content available outside of the UK on a
global basis, then it is required to negotiate licensing agreements on a
country by country basis.
The commercial impact of the geographic fragmentation of rights
This is particularly a problem in the context of music, when BBCW is seeking to exploit
programmes/products globally especially where they fall outside of standard linear deals.
For example, BBCW is currently trying to launch an on-demand audiovisual streaming service
from the UK in certain key international territories (particularly in the US) which gives rise to
music performance licence issues. The relevant UK collecting societies do not have the
international rights for their entire repertoire. BBC W is currently in negotiations with the
societies to establish whether this problem can be resolved. The launch of the service is in
jeopardy if the rights are not available to be licensed collectively or if they are only available
at considerable cost. If these negotiations fail, then the only alternative will be to negotiate
separate deals with about ten different organisations on a territory-by-territory basis,
potentially duplicating licensing administration and reporting many times over. This is an
approach that BBCW had to adopt in the US when it wished to make BBC content available on
iTunes USA.
Other copyrights held on a territory by territory basis, such as book publishing (i.e. source
works) and third party film extracts can cause issues too as BBCW does not have a single
organisation to go to who is mandated to do international deals. For example, television or
radio rights for book source works are frequently held by different publishers in different
territories.
2.2.2 The exceptions regime
At the launch of this review, David Cameron called for reform to UK copyright
law to allow "fair use" of intellectual property based on the US model. There
seems to be a general misconception that the US fair use exception is much
broader than the cumulative effect of the more specific UK exceptions and
therefore more supportive of an innovative and creative environment. Whilst
there are a few specific areas where the UK exceptions could be broadened
which would align them more closely with the way the US law has been
interpreted over the years (but which would not in themselves adversely
affect the interests of rightsholders), to try and adopt wholesale the US
provision, would, we believe be a mistake.
We attach a copy of the US fair use provision (see Annex 1.1). The specific
examples of the purposes for which fair use can be relied on are no different
from the uses set out in the UK exceptions. Where the differences have
emerged are in how the US law has been interpreted by the Courts since
1976. The differences are not though always one way. We have been
advised on a number of occasions that material that could be used under fair
dealing for the purposes of criticism or review as interpreted under UK law
would not be allowable under US law, which we understand only ever allows
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very short extracts, and never the ‘best bits’4. We also understand that Fair
Use would not allow the use of a clip to illustrate the entertainment value of
the original work; something that would be possible under UK law if used in
the right context.
To try and graft the US provision on to UK law would be complicated and
unnecessary. The simpler solution would be to identify specific issues and
modify the UK exceptions accordingly.
The three areas where we consider amendments to the UK exceptions regime
would be beneficial are:-
(i). Parody, Caricature and Pastiche
The acceptance that fair use covers parody is one of the main differences
between US and UK copyright exceptions. At the launch of this Review, when
David Cameron was advocating Fair Use, he remarked ‘Copyright worries
about viral campaign parodies could be allayed’. Certainly much user
generated content posted on YouTube (and sent to the BBC’s comedy sites)
makes use of parody and is likely to infringe copyright under UK law.
The impact of the current regime on parody
A recent spoof of the BBC’s Masterchef 2010 final was posted on YouTube, including lengthy
clips of the judges tasting food and commenting on it, but then inserting shots of pineapple
and cheese on sticks, chicken pie with ketchup and other supermarket products. The BBC
did not object to this although there was substantial use of broadcast footage. Arguably this
would be covered by the US parody exception – defined in a recent case as ‘taking elements
of a prior author’s composition to create a new one that, at least in part, comments on that
author’s works’.
The EU Information Society Directive provided for an exception for use for
the purposes of caricature, parody or pastiche and although this was not
implemented into UK law when mandatory elements of the Directive were.
The subsequent Gowers Review of Intellectual Property of November 2006
said:-
“..an exception to enable parody can create value. Weird Al Yankovic
has received 25 gold and platinum albums, four gold certified home
videos and two GRAMMYs® by parodying other songs, but he had to
ask permission from rights holders. Furthermore, many works which
are considered to have high value could be considered parodies, for
example Tom Stoppard’s Rosencrantz and Guildenstern Are Dead. The
Information Society Directive specifically allows for “caricature, parody
or pastiche” and the Review recommends such an exception should be
introduced into UK law.”
One of our own programmes relied extensively on fair dealing for the purposes of criticism
or review because the subject of the programme would not give permission for the use of
his material. The programme was very successful and won a number of awards but its
exploitation in the US was considered legally problematic under fair use because of the
amount of material used.
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This recommendation was not followed up by the UKIPO which came to the
conclusion that there was insufficient evidence to warrant a change in the
law. Nevertheless we consider that the lack of a specific exception creates
uncertainty as to what is or is not possible and creators of parodies have to
continually assess the risk of whether a rightsholder would object. If a parody
goes “viral”, the risks obviously increase exponentially.
We attach in Annex 1.2 the submissions we made to the Gowers Review on
parody in April 2008 which includes further examples of where the BBC has
been constrained by the lack of a parody exception. We would also comment
that ’pastiche’ could encompass the kind of ‘transformative use’ allowed by
the US fair use exception as developed by the courts and defined as ‘where
the borrowed work is placed in a new and original context by adding insights
and understanding’.
Transformative uses case study
A recent example of a ‘pastiche’ taking the form of a medley of parts drawn from different
sources (the dictionary definition of pastiche) is the critically acclaimed work ‘The Clock’ by
American artist Christian Marclay, first shown at the White Cube gallery in London last
October. This is a 24-hour video made up of thousands of film clips (uncleared) that show
clock faces or mention the time of day, forming a continuous sequence of scenes showing
the correct time. Articles about the work have commented on the legal uncertainties. The
Economist (Artists at work: Slave to the rhythm | The Economist) said on 25 August 2010:
‘Art works based on appropriation sometimes get ensnarled in copyright disputes.
“Technically it’s illegal”. Mr. Marclay says of his elaborate re-mix of snippets, “but most
would consider it fair use”’.
It is doubtful however whether this work would be covered by the UK fair dealing exception,
as there is no obvious ‘criticism or review’ of the works used. But put together in this form
they are undoubtedly being placed in a ‘new and original context’, and adding ‘insights and
understanding’ that would be likely to amount to ‘transformative use’ under US law.
‘The Clock’ returns to London from 16 February, when it will be shown at the Hayward
Gallery. While works of this kind are exhibited in museums and galleries (Tracey Moffatt is
another artist who creates pastiche films of clips such as ‘Love’, ‘Art’ and ‘Telephone’) the
current risk of copyright infringement makes it unlikely that they can be brought to a wider
audience by broadcasters or commercial film distributors.
(ii). Fair dealing – Section 30 (2)
Another problem the BBC has experienced with the UK fair dealing exception
is that photographs cannot be used for reporting current events. The UK is
alone in this, as far as we are aware, and the provision was introduced after
intense lobbying by photographers and the National Union of Journalists
(NUJ) before the 1988 Copyright Act. The Government's original intention was
not to exclude photographs.
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The photographers and the NUJ argued that it would be unfair to deprive
photographers of the exclusive rights to a 'scoop' news picture that only has
a limited life. However the 'fairness' requirement of fair dealing would rule
out that sort of use anyway. The absolute prohibition means that the BBC
cannot use e.g. pictures of company directors from prospectuses or websites
to report a wrongdoing by them. That can be a real hindrance to news
reporting. As an example in 2005 a convicted serial rapist (Richard Baker)
made a claim against the BBC (and others) for using his photograph in a news
report at a time when the police were asking for other victims to come
forward. Many newspapers paid him; the BBC resisted the claim on the
grounds of public interest (the scope of which is far from clear), the only
defence available. He withdrew the claim days before trial.
(iii) Research – Section29
The exception of fair dealing for the purposes of research for a noncommercial purpose does not extend to audio-visual works: film, broadcasts
or sound recording. BBC Research and Development’s work frequently
involves the need to use content for research purposes. In particular, many
of our partnership and collaboration agreements require research in this
area, and the BBC, as the broadcaster, is often required to provide the
content. We may not always have the rights to use our own broadcast
content for these purposes. The extension of that exception to audio-visual
works and sound recordings, and clarification of ‘non-commercial’ purpose
would include research of this kind, would enable us to use broadcast
material more freely in this area.
2.3 Potential solutions
The BBC acknowledges that there are no easy solutions to the problem of
rights clearance in the digital world. This is one of the reasons why previous
government-led reviews have looked at the issue in the past without
reaching any concrete policy recommendations. Nevertheless, these previous
reviews have been helpful in establishing the high level characteristics that
the ideal system might exhibit5.
2.3.1 The ideal regime
The BBC, as both a major rights holder and a user of rights, would ideally like
to see:
5
•
A framework that balances strong copyright protection with straight
forward access to copyright material.
•
A simple and cost effective system that is platform neutral,
underpinned by legislation where appropriate.
See © the way ahead: A Copyright Strategy for the Digital Age IPO (2009).
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•
A system that builds on existing structures as much as possible to
reduce costs.
•
A system that takes into account the multi-territorial and global
capacity of the internet.
•
A system that is well-regulated and transparent.
The BBC recognises that it would not be possible to achieve this regime
without reform at the European level, though the European Commission’s
planned and Directives on Orphan Works and Collective Rights Management
will help. Nevertheless this review presents a valuable opportunity to move
the existing copyright framework closer to the ideal.
2.3.2 Recommendations
The BBC recommends that the review panel considers the following:
•
Inflexibilities in the current regime are obstructing innovations in the
media sector, for example the development of new on-demand
‘archive’ activities. Extended licensing schemes which allow for
agreements to be made by organisations of rights holders (which
represent a ‘substantial number of rights holders’) to also apply to
rights holders who are not members of the association, unless they
explicitly elect not to be represented in this way, would (as shown in
several Nordic countries) reduce the costs of clearing rights. Such
schemes could also potentially resolve the problem of orphan works
and facilitate international rights clearance.
•
A modest expansion of the fair use exceptions regime to cover (i)
parody, pastiche and caricature (ii) fair dealing of photographs for the
purposes of reporting current events and (iii) research would
modernise the copyright regime in a few important areas and help to
support a more innovative and creative digital environment.
Of course, the BBC recognises that extended licensing schemes are not a new
idea. Clause 43 of the Digital Economy Bill proposed regulations that would
have facilitated the introduction of extended licensing schemes in the UK but
that these proposals were not included in the final Bill, partly because some
stakeholders felt that the proposals were too vague in a number of areas6. In
recognition of this, it is important that any new proposals are well thought
through. Annex 2 describes the potential benefits of extended licensing
schemes and discusses what a more detailed proposal for an extended
licensing scheme might look like.
See for example, What the bill means for photographers, BIS briefing note, January 2010
http://webarchive.nationalarchives.gov.uk/20100511084737/http://interactive.bis.gov.uk/
digitalbritain/digital-economy-bill/
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3. Call for evidence: patents
3.1 Why is the patents framework important to the BBC?
The patents framework is important to the BBC and we use it to implement
our sixth public purpose which is enshrined in the BBC Charter - helping to
deliver to the public the benefit of emerging communications technologies
and services. As part of this the BBC is required to play a leading role in
technological development, supporting open standards and achieving the
appropriate balance between generating revenue through exploitation of its
Intellectual Property Rights and making new developments widely and openly
available.
The BBC uses the patent system to protect innovation and in turn generate
benefits to consumers, society and the wider economy. For example:
•
•
•
The BBC files patents defensively to help ensure we have the freedom
to operate in areas of technology where we invest licence fee payers
money (e.g. iPlayer, subtitling). This helps us to provide the content to
our audiences in the most convenient and cheapest way possible.
The BBC has been able to file patents and include these within the
DVB-T27 patent pool. This allowed us to leverage the negotiations for
the terms of use with the other parties that contributed to the pool in
the best way to ensure mass adoption of the technology and to
maximise the benefit to licence fee payers.
Patents have helped the BBC to licence technology to third parties who
are best equipped to provide services back to the BBC and others. This
ensures that:
o our audiences get the best user experiences (e.g. on screen
graphics);
o we can generate revenue for further development; and
o the technology delivers broad benefit across industry.
3.2 Barriers to innovation and growth within the current regime
Experience suggests that the current regime can, in some instances, act as an
obstacle to growth, stifling innovation rather than encouraging it - primarily
because too many weak patents are let into the system. In addition, it can be
very difficult to assess third party patent infringement risk, but at the same
time it is very costly to defend against third party patents. This in turn can
generate a host of other problems.
3.2.1 The system lets in too many weak patents
The quality of granted patents should be improved. We feel the other
problems with patents and the patent system - for example that they take
DVB-T2 is the television standard for the broadcast transmission of High Definition TV
signals on the Digital Terrestrial Platform.
7
14
too long to grant, the process is too costly and the system sometimes stifles
innovation rather than encourages it - could be improved if fewer low quality
patents were let through.
Although a patent maybe perceived to be weak, given the issue of uncertainty
and costs associated with challenging a patent, it is often not prudent for
parties to take that risk. As a result they will often either (i) avoid developing
in that field or (ii) take out the more certain, potentially less expensive option
of a licence for patents that may not be valid rather than defend an
infringement claim in court.
Development work is being stifled, either because there are missed
opportunities, or money is being spent on licences for invalid but untested
patents that could be spent on development.
3.2.2 Uncertainty and high costs of (i) assessing the risk of patent
infringement and (ii) patent litigation
(i)
(ii)
Assessing the risk of patent infringement
The high volume and broad scope of many of the patents in the
computing and broadcasting fields means that assessing the risk of
patent infringement can be very difficult, costly and ultimately
inconclusive. Risk assessment is also particularly difficult and quickly
outdated in an area of very rapidly developing technology. For
example, the BBC was quoted £0.5m from a firm of patent attorneys
for a risk assessment with only an indication of the level of risk being
offered as the result. This figure did not of course take into account
the additional internal costs that are incurred with BBC staff who are
experts in their field taking time out from their development work to
assist with such assessments.
Patent litigation
Whilst we appreciate the Patents County Court may improve the high
costs of patent litigation, it is still very costly to defend against patent
infringement. Cases often settle and the terms are confidential, but
those that have been made public indicate the significant costs
involved, which can lead to fear and risk aversion in the industry.
Whilst wishing to invest in new ways of delivering content to the public, the
BBC must also ensure to the best of its ability that it is not risking licence fee
payers’ money by infringing third party rights. Given the problems of
assessing risk and the costs of litigation, the BBC, particularly as a publically
funded organisation, may be compelled to take a more risk-averse approach
to development rather than the most innovative solution. For example, the
BBC developed a product a couple of years ago that had the potential of
seven different levels of complexity. However, because of doubts about the
patent situation and the cost of further assessment of the risk, it was never
15
developed for use beyond level four. The licence fee payer therefore lost out
on a more innovative product.
3.2.3 It is too lengthy a process to obtain a patent
The length of time taken to obtain a patent causes uncertainty in planning,
and this is particularly problematic in areas of fast moving technology. For
example, one of the BBC’s patent applications filed in 2004 has only just
been granted nearly seven years later.
3.2.4 The system is sometimes not used for its original intention
The patent system was developed to reward and stimulate innovation;
however the complexity of the current regime can lead to the opposite effect
with it being used for income generation rather than innovation generation.
In addition, an alternative to patenting as a means to establishing ‘prior art’i.e. evidence that a subsequent patent application was not new - is formal
publication. However, under the current regime, filing a patent defensively is
still the safest way of establishing prior art, because there is less certainty
that publications will be picked up by the patent office/patent examiners
when considering a subsequent patent application.
BBC R&D has in recent years authored and released nearly 200 Research
White Papers (http://www.bbc.co.uk/rd/pubs/whp/index.shtml) as a means
of communicating the technology it has developed to the wider industry.
Such papers can also be used as prior art against subsequent patents that
cover the same technology. However it would be better if the prior art was
discovered at the patent examiner’s search stage so that such patents never
got granted in the first place. If we had more confidence that the patent
system/patent examiners would pick up on such publications when searching
for prior art, then filing a patent may not always be required. This would save
money (which could be spent on further development) and result in fewer
patents clogging up the system.
3.3 Recommendations
We recommend that the IPO considers steps to improve the existing
examination process as this would help to reduce the number of weak
patents in the system. For example the review team could consider the
following:
•
The feasibility of a one stop shop ‘repository’ for prior art that the patent
office can easily search8. If there was somewhere researchers/innovators
could file prior art (e.g. papers, blogs, presentations etc) in a retrievable
format that the patent examiner would routinely search, this would weed
out more patent applications that were not ‘new’, and the BBC and others
There are existing websites such as IP.com and Research Disclosure but these do not
appear to be routinely searched.
8
16
•
may have more confidence in a less complex and less costly process of
relying on formal publication rather than patenting.
To make the patent peer review process more efficient and effective,
(which should hopefully lead to fewer weak patents entering the patent
system):
(i)
A review of the existing peer review process; and
(ii)
Expanding the proposed UK IPO peer to peer trial (similar to the
USPTO one) to digital media and broadcast technology (if it does not
do so already)9.
We understand from discussions with IPO officials that the trial will include digital media
and broadcasting technology, though as far as we are aware, this has not been publically
confirmed yet.
9
17
4. Call for evidence: enforcement of rights
The BBC believes one of the best ways of addressing the problem of online
piracy is through the provision of high quality legitimate services which are
accessible and simple to use. Video on Demand services such as the BBC
iPlayer and the proposed IPTV platform YouView can play an important role in
deterring would be pirates from accessing content illegally.
The
development of BBC mobile applications has also acted as a disincentive to
piracy. Promoting awareness of copyright and its role in stimulating creativity
can also help. However, enforcement of rights is also a critical component of
any solution.
4.1 Why is enforcement of rights important to the BBC?
Although notoriously difficult to measure, survey data suggests that piracy
(online and physical) is having a significant effect on the audio visual industry
– in the region of £531 million per annum (Oxford Economics, March 2009
and IPSOS, 200910). Piracy is a particularly problematic in the UK – 25% of all
online piracy takes place here partly because of the global nature of the
English language.
Recent data11 collected by BBCW which examined the extent to which BBC
programmes were likely to be subject online piracy indicate that significant
amounts of BBC content is being pirated, across a variety of platforms and
services.
The BBC recognises that some steps have been taken to try and address this,
in the form of the Digital Economy Act legislation on peer to peer file
sharing, but we remain concerned at the financial burden this places on
rights holders and the fact that a high volume of court action against UK
individuals is likely to be required before any imposition of technological
measures would be considered.
As we have commented on previous occasions, the effectiveness of this
legislation on piracy is also limited by the fact that it does not address other
forms of digital piracy such as on cyber locking sites and online streaming
services and through the providers of Virtual Private Networks (VPNs) or
proxy services offering access to the geographically-restricted UK iPlayer to
people overseas for a monthly subscription.
Software designed to
circumvent technical protection measures (e.g. get_iPlayer) also poses
10 Economic impact of legislative reform to reduce audio-visual piracy, Oxford Economics
March 2009 and UK piracy syndicate results 2008, IPSOS 2009
11 In summer 2010 BBCW undertook two anti-piracy trials. The first used finger printing
technology to detect illegal views of content access worldwide via cyberlocker sites and UGC
sites (16 in total) including YouTube, Megavideo and Daily Motion. The trial monitored 84
programmes of ‘cult titles’ including Planet Earth, Top Gear, Red Dwarf and Robin Hood.
The second trial observed instances of illegal P2P file sharing monitoring current (at the time
of the trial) episodes of Top Gear and Doctor Who.
18
problems. Furthermore so-called UGC sites are major source of unauthorised
content for which site operators have little legal responsibility.
The BBC is not aware of any evidence of the relationship between the overall
IP enforcement framework and economic growth or innovation at the
macroeconomic level (and in practice the BBC believes that it will be very
difficult in practice to identify any causal relationship between the two).
Nevertheless our experience highlights the impact that digital piracy has on
our public services. As well as reducing the reach of our high quality, freeto-view services, digital piracy can also make it more difficult for the BBC to
obtain digital licences for acquired programming where rights holders are
concerned about content being illegally uploaded to the internet. Online
piracy also has a detrimental impact on BBCW’s income from sales in
secondary markets.
Moreover, digital piracy also has a longer term impact on investment in
content. Television production is extremely costly and the most expensive
programmes such as drama can cost £700,000 to £1million per hour to
produce. Increasingly programme producers rely on sales in secondary
markets – DVD and Blu-ray sales, repeat showing on other channels and
overseas sales – as a source of programme funding. Without this income the
range of quality and depth of programming available to audiences could be
diminished.
4.2 Barriers to innovation and growth within the current regime
Of course there are steps that the BBC can take steps to attempt to limit
piracy and its impacts – for example we can invest in technical protection
measures and take legal action against organisations or third parties who
might infringe our rights, damage the BBC brand as a result of infringement
or may affect our ability to acquire rights from third parties. However the
BBC (in common with other rights holders) can face considerable challenges
when seeking to enforce rights in a number of areas.
4.2.1 Geo IP circumvention
A related problem arises in relation to providers of Virtual Private Networks
(VPN) and proxy servers advertising their services as allowing access to the
UK iPlayer from overseas for a monthly subscription fee. Services such as
this jeopardise the BBC’s ability to secure rights in relation to its public
service activity and ensure compliance with the terms of its agreements with
rights holders. For example, the BBC recently received a complaint from a
sports right holder regarding such services making their event available
outside of the territories that the BBC has licensed. Such activity can also
jeopardise the success of BBCW commercial activity for similar reasons (e.g.
the launch of the International iPlayer).
4.2.2 Access to foreign enforcement systems
19
A key problem facing the BBC is the problem of downloads of software that
bypasses BBC technical protection measures from servers that are physically
located outside of the UK. For example, the current distributor of the
get_iPlayer software for capturing iPlayer streams splits the software into two
parts – the main bulk of the software is distributed from a UK server, but the
component that actually bypasses the encryption used for client
authentication is hosted on a server in Hungary where, we understand, the
local law does not provide comparable protection against circumvention of
technological measures.
4.2.3 IPTV services and Section 73
Web service providers such as Zattoo and TVCatchup who transmit public
service broadcasters’ channels in the UK without their consent argue that
Section 73 CDPA 1988, (the original purpose of which was to allow cable rediffusion in areas without analogue signal coverage) provides a complete
defence. The broadcasters made representations to the UKIPO about this in
2008: the governments’ view then was that the IPTV services were ‘wholly
outside the scope of that provision’. ITV, Channel 4 and Five have issued
proceedings against TVCatchup and the case is ongoing.
4.3 Recommendations
The BBC accepts that it will never be possible to entirely eliminate the
problem of online piracy in the digital and creative industries. However, the
BBC believes that the Government could take some steps to help the creative
industries to take legal action against those who infringe IP rights. In
particular the BBC recommends that the review:
•
•
•
•
Clarifies the definition of an effective technological measure in current
legislation.
Encourages greater pan European harmonisation to enable the BBC to
litigate against providers of servers physically located outside of the
UK.
Subject to the outcome of the court proceedings referred to above,
clarifies Section 73 of the CDPA 1988 to address the problem of online
streaming of channels such as TVCatchUp.
Proposes regulations to ensure that the operators of websites used for
widespread piracy share some legal, technical and financial
responsibility for dealing with the problem would ensure a fairer
distribution of costs between rights holders and site operators.
At the same time, the BBC will continue to develop high quality services
that deter piracy.
20
Annex 1: Exceptions and fair use
A1.1: US Copyright Law - Fair use
§ 107 · Limitations on exclusive rights:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
A1.2: BBC Submission to Taking Forward the Gowers Review of Intellectual
Property
The BBC is in favour of an exception for parody. As is set out in the
consultation paper, there are parody exceptions in most other European
countries, as well as Australia and the USA. We believe it is in the public
interest, both by encouraging creativity and facilitating trade in programmes
and content, to harmonise our copyright law with those countries in this
area. The BBC is both a user and creator of copyright works and we therefore
appreciate the concerns of rights holders but we believe that if the exception
is subject to fair dealing and therefore the three-step test, so that it will only
apply if the parody does not conflict with the normal exploitation of the work
and does not unreasonably prejudice the legitimate interests of the rights
holders, rightsholders’ interests will still be adequately protected.
Parody is a natural expression of creativity and there are also ‘public
legitimacy’ arguments in favour of changing the law in that a large
proportion of the public would regard it as a normal and legitimate activity.
21
The BBC sees this in material submitted by the public, or ‘user generated
content’ as it is often termed, where many contributions contain spoofs and
parodies of anything from iconic works of literature to current
advertisements or TV soaps.
‘Comedy Soup’ was one such BBC site where we received and had to advise
on, amongst other submissions, parodies of the cover of the Da Vinci Code, a
Daily Mail front page and the Today programme.
A recent example of where the lack of a parody exception caused significant
obstacles for a project designed to engage our audiences and encourage
creativity was the Mini Movie proposition which was part of the ‘The Summer
of British Film’ season last year.
The ‘Summer of British Film’ was a seven week season last summer
celebrating home-grown cinema. BBC 2 screened around 70 British films,
and the season also included special editions of Arena, The Culture Show and
The Money Programme, while the BBC Proms featured a British Film night
which was also broadcast on Radio 3.
The UK Film Council also took part by backing the release of seven of
Britain's greatest films which played in 136 cinemas across the UK each week.
The films included the Bond classic Goldfinger, John Schlesinger's Billy Liar
and Bruce Robinson's Withnail and I. On 9 September thousands attended
the BBC Film Festival in Glasgow which included a live film-themed stage
show, exclusive screenings of short films, and hands-on film-making
opportunities.
As part of this season and to involve its audiences more, the BBC wanted to
invite viewers to create their own Mini Movie, taking their inspiration from
their favourite British films. However from a rights perspective, this project
was very problematic. We discussed the proposition at length with a large
number of film producers both in the UK and the US who were very
supportive but were understandably reluctant expressly to give their
permission because they would not have control over the finished product.
They also did not own or control all the underlying rights.
We wanted our audiences to be free to be as creative as possible but realised
also that to protect them and the BBC we had to try to confine them so that
any use of their favourite film or the underlying works would be
insubstantial.
The result was quite lengthy terms and conditions
(http://www.bbc.co.uk/britishfilm/rules.shtml). We did receive a number of
mini
movies
and
the
best
were
put
on
our
website
http://www.bbc.co.uk/dna/britishfilm, broadcast on BBC 2 and at the Film
Festival, but the amount of time taken in talking to rights owners (who as we
have said were supportive of the idea) reviewing the proposition and drawing
up the terms and conditions was really disproportionate for what only one
part of the Season as a whole. If we had had a parody exception in place, the
22
proposition would have been much simpler and the contributions very likely
more creative and more numerous.
On the other hand if a less prescriptive approach is adopted, as with for
example the web-based talent show ‘Upstaged’ (where the final rounds were
broadcast on BBC3) and the BBC had little or no control over what the acts
contained, there is a potential risk of copyright infringement.
In BBC programming, the lack of a parody exception undoubtedly has a
’chilling effect’. Many parodies do not infringe copyright – for example the
parodies of different writers featured in ‘The Write Stuff’ on Radio 4, which
are a pastiche of writing styles rather than reproducing characters or
storylines which would be protected by copyright. However others may well
do so. For example the recent parody of ‘Rebecca’ on ‘That Mitchell and
Webb Look’ (20 March) contained scenes which were very close visual copies
of the 1940 Hitchcock film. That and similar parodies of more recent films
would run the risk of action being taken if offence was taken by the rights
owners. Amongst their many pastiches the French and Saunders’ parody of
‘The Silence of the Lambs’ might be considered to have crossed the line of
copyright infringement. http://www.youtube.com/watch?v=ha7EB5Y_RT0
As noted in the consultation document, it has been said that actual problems
are minimal and that most copyright owners would not object to parodies.
This may be true in some cases and a high-profile comedy programme with a
big budget may either assume the goodwill of the relevant rights owners or
reckon that it can afford the clearance fee if it has misjudged the legal
position. However the lack of certainty can be a real problem and for smallbudget programmes which cannot afford to take legal risks, including radio
shows and those made by independent producers, the chilling effect can be
much more damaging. Where rights owners are known to use litigation to
protect their rights, for example with the Star Wars series of films, copyright
executives routinely warn programme makers not to use characters or copy
scenes from these films. Examples of ideas where programme makers have
been warned off (from the recent emails of just one lawyer dealing with Star
Wars queries) include:
•
•
•
A comedy pilot with a character who thinks he's from the Star Wars movie
An entertainment programme called Time Trumpet where they wanted to
imagine George Lucas's funeral with his creations appearing
Top of the Pops Reloaded where they wanted to have presenters aping the
Luke I am your Father sequence adapted to become the presenter as
father and son.
In the field of music, the collective rights agreements exclude parodies and
burlesques so individual permissions are required. The BBC makes around
50 requests a year for permission to change the lyrics for existing music. We
estimate that one in five of these are denied, and we also know from
experience that some copyright owners have a policy of not allowing
23
parodies of any kind (for example the works of Rodgers & Hammerstein and
Andrew Lloyd Webber). This might add 15-20 to the annual total of parodies
that programme makers (predominantly from comedy, drama and Children’s
programming) would like to use. In addition, clearance can take a few days to
about two weeks, which often means it would be practically impossible to
clear the work in time for the production deadline. As a result, productions
are often advised that a parody would not be possible because a response to
a request could not be guaranteed within the required time frame. So a
request is never made in the first place - a further example of the “chilling
effect”.
As we have already stated, we agree that the exception should be subject to
the parameters of fair dealing (which we believe are already sufficiently
defined by case law and do not need further statutory detail) which
encompasses the three-step test. This would not allow use that unfairly
prejudiced the rights owner’s commercial interests, for example by implying
product endorsement.
24
Annex 2: Extended licensing schemes
The BBC believes that extended licensing schemes would go some way
towards meeting many of these characteristics set out in section 2.2.1 of our
main submission.
Extended licensing schemes allow for agreements made by organisations of
rights holders which represent a ‘substantial number of rights holders’ to
have effect also for rights holders who are not members of the association,
unless they explicitly elect not to be represented in this way.
The first extended licensing provisions resulted from the revision of the
copyright laws in the Nordic countries in the early 1960s and originally
applied to the use of music and literary works in sound recordings. However,
the schemes have since been extended (to varying degrees in the different
Nordic countries) to include:
•
Retransmission
programmes.
by
cable
and/or
re-broadcasting
of
broadcast
•
Reprographic reproduction of printed material either only for
educational purposes or also for e.g. internal information in
enterprises.
•
Recordings of radio or TV programmes for educational use.
•
For library distribution or digitised material
More recently in Denmark, the public service broadcaster licenses the rights
to re-use all the copyright protected contributions in its archive via a single
extended licensing scheme operated by COPYDAN, acting on behalf of all the
rights-holders.
A2.1 Basic features of extended licensing schemes
The system presupposes that the rights owners in particular fields are
grouped together in organisations that are representative in the field
concerned and that are mandated to conclude contracts on their behalf.
Following negotiations, a representative organisation of rights holders agrees
a contract with a user or a group of users on a certain type of exploitation in
a certain field. Copyright law then prescribes that such a contract applies also
to rights holders who are not members of the contracting organisation,
usually subject to certain safe guards for the outsiders. Rights owners who
are not members of the contracting organisation are treated in exactly the
same way as the members, but usually have a right to individual
remuneration and also a right to prohibit use of their work under the terms
prescribed.
A2.2 Potential benefits of extended licensing schemes
Extended licensing schemes potentially offer benefits to both rights holders
and those who use rights.
25
•
From the BBC’s perspective, the principle benefit of extended licensing
schemes is that they offer a much less complex and expensive route to
clearing rights in the digital age. As described above, experience from
elsewhere indicate that the provisions potential make rights clearance
easier for a much wider range of works.
•
Extended licensing schemes will also generate benefits for rights
holders (in circumstances where rights-owners individually might find
it difficult in practice to obtain use payments). For example, in 2004
the revenue raised by collecting societies in the Nordic market
(countries with a total population of around 25 million people)
amounted to an estimated €450 million12.
•
Extended licensing schemes also guarantee remuneration for rights
owners who previously may not have managed their works actively or
effectively. As their works are assumed to be in the repertoire of the
relevant collecting society, royalties are collected for the use of those
works.
•
Finally giving collecting societies extended powers presents a
commercial opportunity for them to broaden their income streams and
to increase membership within their sectors. Such schemes could also
bring more income back to rights holders.
Of course, the BBC is aware that extended licensing schemes are not a new
idea. Clause 43 of the Digital Economy Bill proposed regulations that would
have facilitated the introduction of extended licensing schemes in the UK but
that these proposals were not included in the final Bill. One reason for this
was that some stakeholders felt that the proposals were too vague in a
number of areas13. In recognition of this, it will be important that any new
proposals are well thought through. In particular, the BBC believes any
extended licensing schemes should reflect the following points:
•
•
•
•
12
13
Definition of a licensing body - A licensing body must comprise a
substantial number of authors (or performers)14 of the relevant works.
The works of unrepresented authors (or performers) should be licensed
on the same basis as those of represented authors (or performers).
Represented and unrepresented authors (or performers) should be
remunerated on the same basis.
A licensing body may be a joint organisation comprising several
individual organisations which are all sufficiently representative.
© the way ahead: A Copyright Strategy for the Digital Age IPO (2009).
See for example, What the bill means for photographers, BIS briefing note, January 2010
http://webarchive.nationalarchives.gov.uk/20100511084737/http://interactive.bis.gov.uk/
digitalbritain/digital-economy-bill/
14 “Substantial number of authors (or performers)” is used in the Danish system and
including the phrase in the primary legislation should re-assure rights-owners that broadbased support for them would be required.
26
•
•
There should be an arbitration mechanism available for setting the
prices of extended collective licensing schemes (e.g. Copyright
Tribunal-type function) where agreement cannot be reached.
Arbitration should exist for unrepresented authors (or performers)
where remuneration could be claimed only from the licensor of the
scheme.
Given that extended licensing schemes potentially raise competition
concerns, it is also important that any new schemes are open, transparent
and well regulated.
A2.3 A phased approach
Thus extended licensing schemes offer an opportunity to dramatically reduce
the costs of rights clearance and hence facilitate the provision of content
whilst at the same providing an opportunity for rights holders to benefit from
additional revenues from licensing of their content.
The BBC therefore recommends that the review considers their introduction
in the UK. However, given that these schemes will require a shift in the way
that rights holders engage with collecting societies, the IPO may wish to
consider a phased or pilot approach to their introduction. (E.g. Government
may wish to approve a single scheme covering a single use for a limited
period of time).
If the pilot achieved its objectives, then over time the Government may want
to extend to consider expanding schemes to enable extended licenses
schemes to cover a wider range of uses or to enable cooperation between
collecting societies in different countries. The BBC believes that this type of
phased approach would be consistent with an evidence based approach to
policy-making.
A2.4 Extended licensing schemes as solution to orphan works
Potentially extended licensing schemes could also address the problem of
orphan works15, although as stated above, it will be important that the
proposals are well thought through and address the concerns of those who
opposed the orphan works proposals included in clause 43 of the Digital
Economy Act.
The BBC believes that at minimum any new proposals relating to orphan
works will need to include the following features if it is to gain the support of
a wide range of stakeholders:
As far as we are aware, the Nordic statutory extended collective licensing schemes have
not been applied to orphan works.
15
27
•
•
A primary legislation requirement for the secretary of State to consult
on the conditions for authorising a scheme with those likely to be
affected.
The consultation and the codes(s) governing any subsequent scheme
should consider:
o The definition of an orphan work
o The criteria which a diligent search16 must comply with
o The accessibility of a register of the orphan works
o The treatment of royalties e.g. deduction of administration costs,
period for which licence fees would be held, disposal of income
etc. (These points were included in clause 43, but did not go as
far as objectors required which was to require charges for the
use of orphan works to be made at “market rates”)
o Sanctions for deliberate or negligent misidentification (including
the deliberate removal of metadata from digital material)
In particular, to address the concerns of those groups most fundamentally
opposed the principle of the proposals (the photographers), the government
could consider giving photographers stronger moral rights to attribution and
by making it a requirement to attach metadata to orphan works to prevent
them being classed as orphans. This would help to address the genuine
concern that identifying information is often stripped from photographers
upon publication.
16The
requirements for diligent searching should be in line with best practice, including the
recommendations of the European High Level Expert Group on Digital Libraries. See
http://www.bis.gov.uk/assets/biscore/corporate/docs/digitalbritain/factsheets/clause42.pdf
28
Annex 3: BBC responses to the review questions
Call for Evidence: Copyright
1. Is there evidence from other national frameworks to suggest how the UK
(and EU copyright systems could better support innovation?
See sections 2.2.2 and Annex 2.
2. Are markets involving copyright more competitive in any other countries,
while still providing satisfactory incentives to creators and investors?
See Annex 2.2.
4. Is there evidence of areas where the UK copyright framework does not
deliver the optimal outcomes?
See section 2.2.
6. What evidence is there that the necessity/complexity/cost of obtaining
permissions from existing rights holders constrains economic growth?
See section 2.2.1.
9. To what extent are the international rules around copyright more or less
important than those in the UK?
See section 2.2.1.
Call for Evidence: Patents
1. In your experience, are there any aspects of the patents system that
currently act as barriers to UK economic growth?
See section 3.2.
How could these barriers be removed or diminished?
See section 3.3.
4. What evidence is there that the need to obtain licences from patent holders
presents barriers to innovation and growth?
See section 3.2.1.
8. To what extent do features of the patent examination process act as
barriers to economic growth?
See sections 3.2.3 and 3.2.4.
Call for Evidence: Enforcement of Rights
1. Is there evidence of the relationship between the overall IP enforcement
framework and economic growth or innovation?
See section 4.1.
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4. What evidence is there of the effectiveness, in terms of promoting
economic growth, of various approaches to improving compliance with IP
rights?
See section 4.2.
6. To what extent, if any, does the enforcement of IP rights operate as a trade
barrier, particularly for UK companies attempting to expand overseas?
See section 4.2.
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