27 November 2014

EU Extended Copyright Licensing (ECL) regulations allow Collection Societies to receive royalties for members and non-members. This will affect nearly all Creators in the UK.

Further changes to UK copyright take place this month (November 2014).  The change sanctions Collection Societies to use Extended Copyright licensing regulations (EU Directive) to negotiate blanket licenses for re-use of both members and non-members works and collect royalties to be re-distributed to rights owners.  

Collecting societies are organizations that represent a sector of rights holders, such as music, film, literature, and manage the outsourced function of rights management on behalf of their members. The Extended Copyright licensing regulations formally sanction Collection Societies to also License non-members works.  Traditionally, members transfer their rights to their collecting society authorising them to sell non-exclusive licenses; collect royalties, distribute royalties, enter into reciprocal arrangements with other collecting societies and enforce their rights. Additionally, Collection Societies negotiate license fees for public performance and reproduction and negotiate blanket licences, which grant broadcast rights to a radio station for example, under a single annual authorisation encompassing thousands of songs owned by thousands of composers, lyricists and publishers. This enables the broadcaster or for example a music distributor, such as itunes to use the works or perform and sell their catalogue for an agreed period of time, to avoid entering into hundreds of licenses with hundreds of individual rights holders.  

The Licensee provides play list, download and payment data to the collection societies to determine their members (and now non-members) royalty payments.

Collection Societies can only issue Extended Collective Licenses in the sector and territory they represent – see list of societies Country by Country http://en.wikipedia.org/wiki/List_of_copyright_collection_societies

In the UK members and non-members do have the right to opt-out of Extended Copyright Licenses, however this right could change in order to preserve the complete work, for example, avoiding blanked out scenes in a film arising from an actors’ decision to opt-out.

Across Scandinavia the Collection Societies have a very high membership and their ECL’s do not permit opt-out.

The Extended Copyright licensing (more info) will affect the vast majority of all creators in the UK if they have published their works or made these available via social media sites.

Collection Societies retain a percentage of royalties and use member fees to cover additional tasks such as acting as a lobbying interest group.

There are obvious upsides to the role of Collecting Societies and the new ECL regulations, namely it enables more time and cost efficient access to creative works to benefit public audiences which would otherwise be non-viable via entering into license negotiations with hundreds of individual rights holders.  

Downsides might include trust and transparency issues between Collection Societies and their members and non-members.  Currently Societies are not structured to disclose the full value of the negotiated license; or at liberty to disclose individual licensees data sets used to determine royalty payments; nor to publish a list of ECL’s or communicate with non-members.

Arguably, Collection Societies have acted for and collected royalties on behalf of non-members for some years – without formal EU regulation. The new regulations should therefore provide a level of comfort & security to members and non-members.

However, non-members need to pay close attention to the activities of the Collection Society representing their sector and ensure they keep abreast of ECL licenses that involve their IP Rights.

The onus is on Creators (non-members) to submit royalty claims to the Collection Societies.  

Creator be(a)ware

Creators need to be aware that the ECL’s could extend into ‘orphan works’ (creator unknown) where a sector specific, e.g. film or fine art, Collection Society could license works that have been wrongly labelled as orphan (due to the fact the Creator could not be found as their work contained no identifiers/IP Tags).

How to avoid your work becoming labelled as an Orphan Work

In the majority of cases this should be a really easy process. Before uploading your work on to any public domain platform including your own web site, social media web sites or supplying images to printed or online magazines and so forth simply ensure you take any of the following actions

  1. Include your name in your work like an artist would sign a canvas
  2. Include a web address in the work
  3. Or register the work with Creative Barcode, create an IP tag and embed into the work. IP Tags contain a url unique to the item of work it is attached to, which links directly a Meta Data page including Creator name, usage terms, contact details, attribution/source credit etc. IP Tags can be edited swiftly, such as an address change, which simultaneously updates the IP Tag in the work on every platform it appears on as well as thousands or even millions of print items, as applicable
  4. Or register with any other works identifier organisation and use their visible icon (if they have one) so long as it leads to your contact details and can be easily updated.
  5. Or assign your works to your Collection Society & insert their logo/www into your work
  6. Or assign your work to a picture library to manage and license your work and pay your agreed royalties. Photo Libraries tend to watermark images with their company name and url. Any images you use to market your work in the public domain (your web site, social media etc) should contain your IP Tag and include the Photo Library as your Licensing Agent.

Creators who wish to be recognised; to be correctly attributed to their work; to exercise their permission based usage rights and where applicable to benefit from royalties and licensing fees, need to consider their options and the benefits to themselves of making it easier for internet users to honour their usage rights and to comply with copyright law. 

Every Creator, whatever their reasons, has the right to remain anonymous without conceding their IP rights. In the digital age and with the changes in the Extended Copyright Licensing regulations and the establishment of Orphan Work registries, the exercised right to remain anonymous may cause enforcement difficulties.

Maxine J Horn
Creative Barcode

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