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Update: DACS, Payback and Creators' Rights

21 December 2016 - EPUK

As you may be aware, there are changes to DACS' Payback scheme that have been forced on photographers and DACS by the Copyright Licensing Agency.

When organisations make copies of books or magazines they are using copyright material without permission. The value of each infringement is tiny, too small and difficult to collect so the Copyright Licensing Agency (CLA) collects lump sums from such as the Department of Education and business representative organisations to cover these uses – known as secondary rights (SR). That money is then divided up and shared among writers, publishers, distributors, illustrators and photographers.

The visual artists (VAs) share of about £5.5m is passed to DACS who distribute it in proportion to the number of publications that each creator or their agent has had. This is a simple system that estimates usage. It is cheap to administer but fairly rough and ready. It does not take account of some publications being copied a lot and others rarely.



The cloak of complication



The CLA are now insisting that the money is divided up in a more rigorous manner more closely linked to the actual copying. It conducts research sampling of real world copying and makes up lists of publications that it claims represent what is actually copied. These lists are not published and there is no way for us to know how accurate, if at all, they may be. If a publication isn't one that the CLA sampled then there's no money for the copies made.

None the less the CLA wanted DACS to distribute its share of the SR money (known as Payback) on the basis of its data. That would mean that VAs could only make a claim by detailing the name of the publication, the ISBN or ISSN and listing each image. Very few creators would be able to provide this sort of detail, and DACS opposed the change. In the end it went to a mediation process. DACS was supported by EPUK and some other British Photographic Council members.

Part of the EPUK submission emphasised the way that this process would disadvantage photographers as they did not have the required data but not the distributors who could more easily collate it. Despite opposition from the CLA and agencies, a hard fought EPUK proposal that the data-related share of the distribution should be limited to just 10% of the total in the first year was accepted by the mediator. This means that on average only about £30 of each claim will be at risk to begin with. At the end of the first year it will be possible to see just how fair the system really has been, either putting our fears to rest, or producing the evidence needed to argue against the CLA list based method.

The current proposal is that the 10% share based on the CLA data will increase each year until 2021 when it will peak at 30% or 40% depending on the type of publication. The more publications that a claimant can detail that also match the CLA's list then the bigger that claimant's share will be. This way of working will require more admin, and the cost of that, both for DACS and for the CLA will, of course, be taken out of our share of the SR royalties.

The CLA have also forced DACS to move the dates forward. Claims used to be made over the Summer and Autumn. Now the claim period opens on 16 January 2017 and to get a share of the 10% pot it has to be finalised by 17 February 2017. The other 90% can still be claimed up to 1 May 2017 and it is still worth including as much ISBN data etc as possible as it will add to the 2018 claim and provide DACS with useful info. When compiling the extra data it would be very helpful for EPUK to know how much time this takes so please keep a record.

DACS have put up a web page with a timeline and guidance for claiming.

Once the claims are all in we will be able to look at the relative fairness of the old method compared to the CLA list-based method. The Collective Rights Management regulations require fairness and we will be in a position to argue strongly for any changes that seem necessary.

Underlying this is the law of the jungle. CLA is big and strong. It sets the rules. DACS has forced some changes on the CLA but the CLA is owned by organisations that want our money in their pockets and they are bigger and stronger than us. DACS is fighting every inch of the way to protect our income. Even to be legally recognised as representing us it had to make all the claimants 'members' of DACS – and it was then senselessly attacked for doing so, much to the delight of those trying to grab our money.

In the end it is only the creators who should have any right to the Payback money, but DACS is forced to pay more than half of it to distributors. The EU Reprobel case is an important step towards restoring these SRs to the creators, but Brexit is likely to close that door to us. In the meantime we are reduced to fighting a rearguard action, do what we can to bolster DACS' position and try to amass evidence that will support a distribution method that is fair to creators.

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Comments

On asking a major UK ‘agency’ for ISBN information I was told that such information is confidential. That same agency is now making DACS claims on behalf of its global network of photographers even without their knowledge or permission.

Clearly, there is a conflict of interest here, and it does not favour image creators, it favours those who have the data ( the agencies and mega-portals ) who can withhold it for their own benefit.

The net result is obvious, less of the pie for creators and more for the middlemen.

Comment 1: geogphotos, 22 December 2016, 10:34 AM

It is ubtrue that Alamy is claiming without permission. The new provision is in the contract and I for one received an email about it. Some contributors are claiming not to have received it and consequently there have been some double claims, which Alamy has clawed back.

Comment 2: spacecadet, 10 January 2017, 01:39 PM

Let’s say that specific permission is no longer required since it has become an integral part of the contract agreement whereas previously explicit permission was required.

Surely, the overall result is the same as I stated above.

Comment 3: geogphotos, 10 January 2017, 02:58 PM

I suppose that one argument is that the agency makes the sale so does that mean they are justified in expecting the additional payment element brought by DACS? i.e.) that they have done the work?

In any case, it is a change from what went before and I can’t see that it favours individual creatives making their own claim.

Spreading the jam amongst more contributors all over the world, and 50% going to the agency will certainly reduce what is left for those who have been claiming for some time. In addition, this ISBN pot will grow to 30-40% of the whole. You have to know your ISBN numbers to get tickets in that lottery.

Comment 4: geogphotos, 10 January 2017, 03:04 PM

@spacecaet

You mentioned the Alamy contract. This is the relevant part isn’t it?

“You also confirm that you have authorised Alamy to claim and receive on your behalf any royalty payments the Collecting Society has calculated as part of Collection in respect of an authorised claim made on your behalf by Alamy, and to deduct a commission or fee of 50% after recouping any applicable administration charges.

If you have specifically informed us not to claim on your behalf for Collection in the United Kingdom before July 30th 2016 then we will not claim for you under Collection unless instructed to do so. If you do instruct us to claim on your behalf this will continue for the contract duration.”

Comment 5: geogphotos, 10 January 2017, 03:22 PM

Agencies have no IP rights in our images. There is rarely a contractual basis for an agency claim. Until recently no contract even mentioned secondary rights (last year Alamy added the right to make a secondary rights claim to its contracts, as far as we know this is the only such example) and the language generally used in agency contracts makes it clear that such rights had not been considered in the drafting. The absence of any underlying basis for the agency claim to secondary rights payments (SRP) is confirmed by the Alamy contract revision adding a clause permitting this, thereby making clear that such rights had not previously been part of the contract.

The SRP has no direct connection to sales. It is not a royalty on sales. The sales made are only relevant as being one of the routes by which the work enters an environment where it may be copied.

The much repeated agency argument is that without what they do there would be no secondary use and that this justifies their right to a share of the SRP. But without Nikon or Canon or Adobe or the publishers or the Department of Education or independent picture researchers or untold others there would be no secondary use. The agency argument is fallacious.

Agents and libraries add value and justify their royalty by centralising, managing, marketing and promoting. None of this is required for secondary licenses and so no value is added by the agency in that respect. It follows that no royalty derived from secondary rights should be payable to the agency: it should all go to the rights holder. This is in line with the thinking behind last year’s Reprobel decision.

Comment 6: David Hoffman, 10 January 2017, 03:36 PM

I agree entirely with that. Given Alamy’s original stance as the ‘photographer’s friend’ and also that they give their profits ( all of it, some of it?) away to charity you would think that this provides an ideal opportunity to actually give something back to their contributors by actively supporting their individual DACs claims including the provision of ISBN information.

Not surprisingly photographers scattered around the world who know nothing of DACs are often delighted to be getting an additional sum of money in their account for no additional effort. So Alamy have that pool of support spurring them on I suppose.

Comment 7: geogphotos, 10 January 2017, 03:49 PM

Getty images gloriously do the DACS for their photographers and of course they take their 50% cut. As they have all the info needed and the staff its a great way of screwing us all
I dont think this ‘in the spirit’ of DACS at all!!

This sis on top of the ridiculous 70% commission on ‘ out of territory’ sales. Its almost as if the internet and web sales don’t exist. CROOKS

Comment 8: old snapper, 4 March 2017, 11:52 AM

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