Please respond to this survey before 12pm 23 June 2014
https://www.surveymonkey.com/s/ECL-Opt-out
In early October 2014 the UK government is expected to change its copyright legislation and introduce an
Extended Collective Licensing (ECL) scheme that will enable collecting societies to authorize use of any image within the UK.
This applies not just to images created by UK photographers, but to images created by any photographer, anywhere in the world whose image happens to be found by someone in the UK who wants to use it. The legislation applies to previously published works as well as to any images made available via social media sites. This could include works where the copyright holder might be identified through a diligent search as well as orphan works where it is impossible to easily identify the copyright holder.
(Professional photographers who post images on sites where their copyright is attached should recognize that someone may grab their image and post it on another site without any information about the creator. At that point the image becomes an “orphan.”)
Book publishers who want to distribute their books outside of the UK would not be able to license works in this manner, but if the publication is only available in the UK they will be able to license rights to orphan works.
One of the main reasons for allowing Collecting Societies (CS) to function in this manner is to make it easy for educational organizations and museums to obtain legal access to works that are to be used for educational purposes. CSs also provide blanket licenses to commercial organizations for photocopying and making small uses of a broad cross section of works when it is impractical to license each work individually.
Becoming A Collecting Society
To become a “Collecting Society” it will be necessary to pass a series of tests that are currently in draft form and won’t be finalized until sometime in October. A CS will need to show that it represents a
significant percentage of the rights holders and works affected by its scheme. The organization will also need to show that it has made
“all reasonable efforts to find out total numbers of rights holders and works, using a transparent methodology.” The CS will also need to disclose the number of right holders it represents.
Based on this requirement it would seem impossible for any organization to pass the test. It has been reported that over
1.8 billion images are uploaded to the web every day. No one knows who created all these images and there is no identifying information attached to most of them.
However, the UK government is intent on introducing ECL. There are already several collecting societies in operation in the UK including the Copyright Licensing Agency (
CLA) and the Design and Artists Copyright Society
DACS. It seems likely that these, and other CSs, will be authorized to license rights for image use.
Fees will be set by each CS. A certain portion of fees collected will be distributed to “members.” CS’s are also required to make a portion of the monies collected available to
benefit “non-members” who are unaware of the existence of the CS, or have “opted out” of membership.
Part of the problem with such compensation schemes is that for the most part no records are kept as to the specific images used. Thus, there is no way to accurately determine the portion of revenue that should be distributed to any individual. Also, there is no way to accurately determine the proportion of images created by UK creators compared to those created by photographers from any other countries. Small surveys are conducted to make some attempt at fairly allocating revenue.
The principle CS in the U.S. is the Copyright Clearance Center (
CCC). While it collects millions of dollars every year as best we can determine none of it has ever been distributed directly to any image creator. Some European Collecting Societies do a better job of determining the proportion that should be distributed to benefit foreign creators. ASMP has received money from some overseas collecting societies that it is authorized to use for education and advocacy, but the association is prohibited from distributing any of these monies directly to its members.
Opt-In or Opt-Out
A big deal is being made about the option to Opt-In or Opt-Out, but neither really provides any protection for individual image creators.
Creators who
Opt-In will receive a portion of the monies collected, but will have no say in who can use their image or what an appropriate fee for such use might be. In addition the amount they are paid will have no relation whatsoever to how their images were used because no one will know if any of their images were ever used.
Creators who
Opt-Out will, in theory, be able to sue for compensation if they discover that one of their images was used without permission. But, first they have to discover this use. Second, in most cases the cost of legal action will be prohibitive compared to the likely recovery. And third the fact that the user paid a collecting society fee will weight in the users favor. In addition, the amount of this fee will probably establish the value of the image.
Finally, most creators will not be aware that these organizations exist and thus never have the chance to opt-in or opt-out.
Diligent Search
During the initial legislative discussions the idea of requiring a user to do a diligent search to find the image owner was proposed. A
“Copyright Hub” was set up as a demonstration project. However, to date, there has been no agreement on how to fund the ongoing operation of such a Hub. In the explanation of the ECL scheme there is no mention of the Copyright Hub and it seems that its use will not be a requirement.