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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