Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market
Europe is currently 28 separate national markets, and a Digital Single Market is proposed by the European Parliament as a way of allowing wider access to content across the EU countries in the fields of education, preservation of cultural heritage and text and data mining in the field of scientific research. Also addressed is the area of fair remuneration in contracts of creators.
A proposal for a legally binding EU Directive on copyright and the Digital Single Market has recently been issued covering these areas and it lays out how the EU states would be expected to achieve the Directives aims.
The proposed Directive has been broadly welcomed by creators’ organisations. One of the main areas which are positive for creators is under the section on Fair remuneration in contracts of authors (‘authors’ are the creators of works) and performers (Chapter 3). AOI and other organizations are pleased there is recognition that authors and performers have issues with transparency in relation to the uses of their work (Article 14). This could be how works are used, how much revenue is generated from the works and the money due for those uses. Illustrators will be aware that this is not always made clear to them by their commissioners, so the potential requirement for regular and adequate information on the exploitation of their works will be welcome.
Also proposed is a ‘Contract adjustment mechanism’ (Article 15). which would ensure that creators could request additional payment from the user of the rights in their work, eg publishers, if the subsequent revenue is higher than expected – a ‘best seller’ clause. We would like representatives of creators to also be able to negotiate on behalf of individuals with the clients in these instances (trade associations, agents) should a creator not wish, or feel able, to challenge the existing agreement.
The proposed Directive also states that countries should ensure that disputes concerning the transparency obligation and the contract adjustment mechanisms mentioned above could be submitted to a ‘voluntary, alternative dispute resolution procedure’ (Article 16).
New copyright exceptions
New exceptions to copyright are proposed which focus on cross border uses. These allow uses of copyrighted material without permission from the rights holder. A new exception on illustration for teaching for the use of copyright protected content in digitally-supported and online teaching activities, including across borders; a new exception for digital preservation by cultural heritage institutions, and a new exception for text and data mining carried out for the purposes of scientific research.
We consider that the definition of ‘educational establishments’ needs to be closely defined for those who would be able to use works for the ‘illustration of teaching’, and believe that the allowed ‘non-commercial use’ should be closely defined and monitored.
Out of Commerce works
The Directive also proposes the use of Out of Commerce works (defined as a whole work in all versions, which is ‘not available to the public through customary channels of commerce and cannot be reasonably expected to become so’)
Illustrators may have works which are no longer commercially available (such as out of print picture books, for which they may also be the writers), which they may wish to exploit but be prevented from doing so through contractual restrictions (e.g. A 'period of copyright' publishing contract with no reversion of rights to the creator clause included). This could mean they would not wish to have the work made available.
If an Extended Collective Licence is put in place allowing use of out of commerce works illustrators would be able to opt out of that (Chapter 1), but we have concerns that reaching and informing rights holders about an Extended Collective Licence would be difficult. Extended Collective Licensing is a type of licensing that allows an authorised collecting society (such as DACS) to extend an existing collective licence (such as Payback) so that it can license on behalf of all rights holders in the sector withour their direct permission (e.g. all illustrators), except forthose who opt out.
Up until the UK leaves the EU it will continue under the same rules. The UK will not be obliged to implement the Directive on copyright in the Digital Single Market if we have left the EU by the time it is actioned.
The AOI and publishers Little, Brown and Orion (of the Hachette publishing group) and the Society of Artists Agents (SAA) have worked together for several months to vary their contract to allow profit sharing between publisher and illustrator.
The new non-exclusive clause runs in tandem with the exclusive book use clause and allows both the publisher and the illustrator to exploit artwork created for the publisher’s book titles in a non-book context with agreement from the other party. Both parties will agree percentages and share the income from any uses.
This is positive news for illustrators as the previous contract allowed the publisher a non-exclusive right to use the artwork in any manner and in all media with no further fee to the illustrator.
The wording of the clause is below, and we have been told this will be given to other publishers in the Hachette group to include in their book contracts.
Subject to prior written agreement between the parties of an appropriate fee or royalty, a non-exclusive licence to use the Artwork throughout the Term in the Territory for any uses other than the Use (an "Additional Use") that may from time to time be required by the Publisher and to sub-license others to do the same. Save in relation to the uses specified in Clause 3.3 of the Terms and Conditions portfolio by the Artist (which shall not require the consent of the Publisher) each party, prior to an Additional Use, will gain the agreement of the other party as to the nature and particulars of the Additional Use, such agreement not to be unreasonably withheld or delayed. Where the parties agree a fee or royalty for an Additional Use which varies in accordance with sales, revenue or any other factor, the parties shall agree appropriate record keeping, accounting and audit rights.
The impact of Brexit on the creative industries, tourism and the Digital Single Market
The British Copyright Council (of which AOI is a member) have responded to a call for views from the Culture, Media and Sport Select Committee on the subject above. The summary of the BCC's response is blow and the whole letter can be seen here.
'The British Copyright Council welcomes the Culture, Media and Sport Select Committee’s inquiry into the impact of Brexit on the creative industries and the digital single market. The BCC’s remit covers matters relating to copyright and related rights so the focus of our response is on “What should happen in relation to Copyright after the UK leaves the EU?”.
On the Digital Single Market we have responded to “How has UK membership of the EU helped to shape the Digital Single Market to date?”and“What are the fears and advantages arising from the UK being outside the developing single market?”.
We have also raised one or two trade related points which are not directly connected to copyright but which, during recent discussions on Brexit, our members identified as being of serious concern to them.
• As a world leader in creativity, we are keen to ensure that the UK continues to provide an environment in which its creators and performers can continue to flourish, making the UK an attractive place in which right holders will wish to put their rights.
• We urge that the significance of intellectual property to the UK economy, and the creative industries in particular, continues to be recognised in the context of the trade negotiations ahead.
• The world leading example set by the UK in evolving copyright laws to reflect advances in digital technologies (on the back of its own experience of the 2014/2015 review) is used to promote good practice in the Digital Single Market.
• Stability for application of existing EU Regulations and transposition of EU Directives which form part of the copyright acquis must be maintained as part of the Great Repeal Bill.
• The value of the fair dealing doctrine for application of copyright exceptions and limitations (as opposed to fair use) must be seen as part of creating clarity and transparency for application of copyright rules both during and after BREXIT
In its Communication on a Digital Single Market Strategy for Europe, adopted in May 2015, the European Commission committed to undertake a set of actions which aim to foster the cross-border digital economy, but also to ensure a safe online environment for business operators and consumers.
Among the concrete actions envisaged is the modernisation of enforcement of intellectual property rights, focusing on commercial-scale infringements (the 'follow the money' approach) and its cross-border applicability.
For the consultation AOI wrote to the European Commission (EC) on behalf of our members, who are right holders in the images they create for commission (and personal use) which contribute income for all, or some of their income. We told the EC that we consider it important that individual and SME rights holders are recognised as suffering from infringements of their work
Individual rights holders do find that copyright in their work is being infringed on line, both in the UK and other countries, and through lack of resources (including financial) are unable to enforce their rights.
Most individual freelance creators are not in a position to take legal action or apply for an injunction in a cross-border situation, as their level of income generally does not allow them to budget for the expense or time spent on pursuing and following up infringements. This also means that they do not have the experience required of the intellectual property rights Enforcement Directive (IPRED) to be able to complete the EU survey.
Illustrators find their artwork copied without permission from either online or physical sources and made available for potential sale (as a result of the application of their work on to products) on online stores or selling platforms, and experience significant difficulties when trying to enforce their rights to have the work taken down and compensated for:
An example is a UK illustrator member who found her images being made available on garments without her permission through a Spanish clothing brand's website. She contacted them directly, and even though she had some ongoing correspondence with them, and they removed the articles from their online shop, they stopped communicating. Therefore she has been unable to ascertain what profits they may have made through online and shop sales or to wholesale customers, and has been unable to claim or receive any compensation for the infringement.
A second example is an illustrator member who found her illustrations copied onto fabric and sold through several different online UK retailers. Once she contacted them, several took down the fabric items from their websites, but others just failed to respond to her communications, and she does not have the resources to maintain a prolonged campaign to resolve the situation. So she has been unable to enforce the rights in her work or receive compensation for the infringement from any of the infringers.
We believe these situations to be typical for freelance illustrators faced with online infringements, and hope the European Commission will consider how the situation can be improved for individuals as well as organisations when resolving issues with online infringements
The Department for Business, Innovation and Skills (BIS) recently launched a Call for Evidence on Terms and Conditions, saying "we are seeking a better understanding of how Terms and Conditions (T&Cs) can be made more user -friendly and consumers might be helped and encouraged to engage more effectively with Terms and Conditions."
AOI have responded to this consultation focusing on the issue that is increasingly concerning illustrators, that of social networking sites including the transferable right to sub-licence content in their terms and conditions - this obviously includes all the artwork being posted from creatives for promotion and profile raising. The terms which are signed up to can allow the platform to use artwork without a fee and potentially licence it on to other organsiations. Many illustrators are not aware of this, or understand they have no choice if they are to use the platform. Below is the text AOI included in our response to BIS:
The Association of Illustrators (AOI) is a non-profit trade association formed in 1973, dedicated to promoting contemporary illustration and maintaining industry standards, with a membership that includes freelancers, agents, students, colleges and commissioners.
AOI is responding to the consultation as ‘consumers’ as we are representing our members concerns. The majority of our members are individual freelance illustrators creating artwork under commission across a wide range of goods and services (including book publishing, apps, packaging, advertising, animation and editorial), as well as making their own artworks to sell or use as promotional material.
We are focusing on the terms and conditions of Social media networks. These are an area becoming increasingly used by our members for displaying their artwork, work-in-progress and published commissions (particularly with Instagram, Twitter and Facebook). To have a presence on, and use these platforms is recognised within our industry as an essential tool for freelance creatives’ promotional and profile raising activity.
It is also now becoming more common for potential commissioners of illustration to seek out those with a significant numbers of followers on social media to commission, with the assumption that the resulting exposure through those channels will boost their profile/product. Numbers of followers on social media platforms will also be significant for mutual partnerships between freelance creative and companies wishing to benefit from numbers of followers.
The requirement of being on social media platforms to optimise creators’ exposure means that there is little choice as to whether an individual agrees to their terms and conditions or elects not to take part. Agreeing to Facebook, Instagram and Twitter terms and conditions gives the platforms wide ranging rights over content posted, including the transferable right to sub-licence content (e.g. ‘…you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook…’).
Sub licensing which is compulsory and not remunerated is not appropriate in any circumstances for work posted to social media platforms. Copyright will exist in images owned by the creators, and images posted by the platform user which have been commissioned will be under exclusive licence to the commissioner (generally with an agreement that the work may be shown by the creator for self promotional purposes only), so a licence given by a network to another entity could make the illustrator who posted the work be in breach of an exclusive agreement.
AOI calls for the transferable, sub-licensing right to be removed from all social media network terms and conditions. This would give creatives confidence that they maintain control over the content they post on such networks without fear of possible exploitation of the work for no remuneration.
Concerns over legality of 2D representations of 3D industrially manufactured ‘artistic designs’ once law is repealed.
Copyright protection is to be extended or revived in March 2016 for 3D ‘artistic designs’ that are industrially manufactured (e.g. an Eames chair), and also to 2D representations of the 3D designs (this includes illustrations). This will be brought into effect by the repeal of Section 52 of the Copyright Design and Patents Act (CDPA). Section 52 currently allows for copyright protection for “industrially exploited” artistic works for 25 years. Copyright for other artistic works is 70 years following the death of the creator.
Once Section 52 CDPA is repealed this year and ceases to have effect, Government confirm “any artistic work, whether two-dimensional or three-dimensional, which qualifies for copyright protection will enjoy the full term of the life of the creator plus 70 years (subject to any applicable exceptions)”. The intention appears to be primarily intended to prevent 3D copies of 3D works, such as furniture.
However, for illustrators this could mean that to draw an ‘artistic’ manufactured item and reproduce that drawing, copyright will need to be sought from the rights holder in the item. So if you are commissioned to depict, for example, a designer chair or vase, either as the main focus of the artwork or possibly incidentally you could be infringing the designer’s copyright if permission is not granted. If a commissioner asks you to draw items you believe may be covered by copyright let them know, and if they have supplied you with reference material of such items ensure you have supplied your AOI Terms and Conditions document, as clause 17 states that the client indemnifies you against any claims that you may have infringed copyright in the items if you have used client reference.
Government has proposed a certain period to allow affected businesses the time to adjust. Currently by March 2016 it will become illegal to make (or import) new copies of artistic works in the UK, and all stock containing images which are infringing copyright in 3D works will need to be depleted by October 2016. The legislation will apply to books, so if a book containing unlicensed drawings of manufactured artistic works is sold after October 2016 it will be an infringement if permission has not been obtained.
A problem here is that Government have stated that “There is uncertainty over which items would be protected by copyright once the change in law takes place. An item which is primarily functional (such as furniture) will only qualify for copyright protection if it is regarded as a work of artistic craftsmanship (i.e. an artistic work).” However, what an artistic work is has not been defined by Government, which leaves visual artists in a confusing and potentially vulnerable place. Photographers may be especially affected by the repeal of Section 52, particularly those specialising in interiors.
Government have said that creators of 2D images of artistic works “may be able to benefit from existing copyright laws (i.e. copyright exceptions) that allow the use of a work for the purposes of quotation, criticism and review, or for the incidental inclusion of copyright work in another artistic work, film or broadcast”. AOI is not sure how these would be effective for illustrations, except possibly in the case of a parody exception.
A consultation on this repeal ended in December 2015, and AOI supported the submission from Association of Photographers which asked for a 5 year transition period in respect of 2D copies of 3D works, instead of the short 6 months period currently in place. We will report further once results of the consultation are released.
Update April 2016:
Section 52 of the Copyright, Designs and Patents Act 1988 limits the term of copyright protection for industrially manufactured artistic works to 25 years. The consultation included transitional arrangements for the repeal of section 52, including a transitional period until the repeal takes effect and a depletion period for pre-existing contracts to help people adjust to the change in law.
Following the consultation, Government have concluded that:
- the repeal of section 52 will happen on 28 July 2016 (nine months from the start of the consultation period);
- the depletion period for contracts in place prior to consultation will remain six months following the repeal, but will therefore conclude on 28 January 2017
Are the contracts you are given by book publishers always fair? Illustrators, writers and other freelance creators are often presented with contracts for their work that are unfairly weighted in favour of the commissioner, assigning copyright rather than licensing the work, waivers of moral rights and low royalty percentages, and international pressure is being exerted on book publishers to reform their contracts.
AOI are closely involved in the Creators Rights Alliance (CRA) initiative Fair Terms for Creators campaign which is working towards fair terms for all creative freelancers. CRA members, the Society of Authors (SoA), have published an open letter to publishers which is aligned with this campaign, and most of its points apply equally to illustrators.
In the letter, SoA Chief Executive Nicola Solomon says:
What we ask is simple: publishers need to revise many of their standard contract terms to make them more equitable. Authors should get at least 50% of ebook revenue, not a mere 25%. Authors should not have their hands tied with contracts which cannot be terminated when a book is no longer being exploited or be subject to non-compete and option clauses that make it even more difficult for them to write and publish new books.
Indemnity clauses should spread risk fairly between the publisher and the author. Royalty statements should be transparent and comprehensive. And we ask publishers not to discriminate against authors who don’t have powerful agents. When negotiating with agents publishers often start from previously negotiated forms that remove, or at least soften the blow of, some of the more draconian provisions offered to un agented authors.
Why not do the right thing by all authors and eliminate those provisions for everyone?
What are fair terms? The campaign for Fair Terms believe that there are seven areas of contract terms which need to be protected so that all creators, including members of the public who are often agreeing to contractual terms and conditionsonline, are protected when they sign a contract. These seven areas form the acronym CREATOR. They are all already in use elsewhere in the world or mirror existing consumer protection rights.
Clarity: Clear contracts, in written form, which transparently set out the exact scope of the rights granted / assigned / licensed and are timely and transparently negotiated.
In America the Authors Guild launched their Authors Guild Fair Contract Initiative in May 2015, with the aim of starting a conversation within the industry about antiquated and unfair clauses in “standard” book contracts. “That conversation has begun,” they say, “and now it’s time to see some change, so we are opening up a dialog directly with publishers and agents.”
To that end, they are sending an open letter to members of the Association of American Publishers. “The letter, which will also be sent individually to publishers large and small, recounts the key themes of our initiative and informs publishers that in the coming months we’ll be seeking individual meetings with them. The letter has garnered the support and signatures of 26 creators’ organizations from around the globe…”
Read the full letter here
AOI support these campaigns. Through our ethical advisory service to members we see all of the issues described by the authors organisations replicated in contracts for illustrators and illustrator/authors, and are aware that fair terms applied to contracts will be beneficial to the whole industry.
We will keep you updated as this campaign progresses.
December 2015 Copyright Notice: digital images, photographs and the internet
In November we let you know that the Intellectual Property Office (IPO), who give out official information on intellectual property (copyright, patents and trade marks), issue Copyright Notices which provide basic copyright guidance for those seeking information. They had requested comments from AOI for a revision of the Copyright Notice: digital images, photographs and the internet, which we supplied, and the Notice is now live.
The revised Notice includes the majority of the AOI’s comments, which concerned an emphasis in the IPO document on 'assignments' of copyright rather than licensing, as is standard in our industry.
The notice answers questions such as:
Who owns the copyright in commissioned images?
Is permission always required to copy or use an image?
Is there any way I can be completely safe when I use an image from the internet?
I want to take photos of sculptures and buildings located in public spaces
IPO also included wording we suggested to ensure commissioners were aware that additional uses of a commissioned work require a new licence:
When an image is commissioned for a specific use, any additional use beyond the terms of that licence will require an additional licence for example, an image commissioned for one purpose or media is subsequently wanted for use for another purpose. Just because a licence exists for one does not automatically permit the use for another so an additional licence is required.
The Copyright Notice: digital images, photographs and the internet will be useful for members to point out to clients to who may not fully understand copyright and how it applies to images online. The Copyright Notice can be found here.
The Intellectual Property Office (IPO), who give out official information on intellectual property (copyright, patents and trade marks), issue Copyright Notices which provide basic copyright guidance for those seeking information.
A Copyright notice on digital images, photographs and the internet was published last year, and the AOI were recently given the opportunity to comment to Margaret Haig, Head of Copyright Delivery at IPO, on the Copyright Notice on images and the internet update. It was beneficial to see this before it goes live, as illustrations are susceptible to misuse on the internet and the AOI is well placed to comment on that.
The notice answers questions such as, ‘How long does copyright in images or photos last?’, ‘I want to use images I found on the web’ and, ‘I want to link to images I found online’.
We believe is a useful document, but had a few general and specific comments. An overarching concern is that we have noticed that the IPO's Copyright Notices often begin any comment on how creative content is used by commencing with 'assignments' of copyright as a first option, rather than 'licensing' of content.
We pointed out that the industry works in the opposite way, with licensing of content being far more typical than an assignment of copyright in the content, and the IPO emphasis on 'assignment' of copyright may result in the public being under the impression that an assignment is what they should be considering as a first approach. We asked that IPO consider the order in which these 'options' are placed, to emphasise licensing over assignments.
Under the final section, 'Who owns the copyright in commissioned images?', we stated that we believe it will be beneficial to commissioners of visual works, and those commissioned, to add the following for clarity on how images can be used. This will tie in with the stated aim by government of helping those who may find their own images being used online without permission. Illustrators and photographers do find clients using commissioned images beyond the original agreement.
If an image has been commissioned for a specific use, each additional use beyond that detailed in the original agreement (including use online) will require a new licence. For example, an image commissioned solely for the cover of a brochure or leaflet cannot be placed on the commissioners website without a new licence for that use being issued by the creator of the artwork.
The revised Notice has now been published and can be downloaded from here.
19 June 2015
In October last year the Government introduced a private copying exception allowing consumers to copy, for their own private and personal use, copyright material they have lawfully acquired without putting themselves in breach of copyright law. However, the Government made no provision for ‘fair remuneration of right holders.’
Three Claimants – British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music – challenged the Government’s decision not to establish a system of ‘fair remuneration for right holders’ by way of judicial review proceedings. The Incorporated Society of Musicians (ISM) intervened in the judicial review, supporting the Claimants’ position, and also putting forward new arguments in relation to illegal state aid.
The judicial review hearing took place in April and the Court’s judgment was handed down 19 June 2015. Full review here.
The ISM’s additional state aid argument was not successful, however the Court agreed with the Claimants that the Government’s reasoning in relation to the refusal to introduce a ‘fair remuneration scheme’ was ‘simply not warranted or justified’ by the evidence that Government relied on and the Court declared the private copying exception unlawful. It is now likely that the private copying exception will be quashed.
Deborah Annetts, Chief Executive of the Incorporated Society of Musicians (ISM) said: ‘This is an important decision which goes some way to support the rights of composers and performers. The ISM is pleased that we were able to take part in this very significant judicial review. Whilst the ISM’s additional arguments around illegal state aid were not successful, we felt it was essential that they were given proper consideration at the hearing.’
‘We fully support the arguments put forward by the Claimants in the course of the judicial review and are therefore delighted that the Court has accepted their argument that the Government’s reasoning in support of introducing the private copying exception without making any provision for fair remuneration of right holders was simply not warranted or justified by the evidence relied on. This is an important decision which goes some way to support the rights of musicians.’
‘We urge the Government to respond to this decision by introducing a fair remuneration scheme for musicians and other rightholders.’
Background: The Government introduced an exception for private copying on 1st October 2014. This means that people could lawfully make copies of copyright material they had already lawfully acquired (for example by copying music files from a lawfully acquired CD onto their computer or MP3 player) provided the copy was for their own private and personal use.
This may seem like a common sense exception, but in the rest of Europe, when a ‘private copying exception’ has been introduced, creators and other right holder are also guaranteed 'fair remuneration' for the loss of their rights. The Claimants in the judicial review, and likewise the ISM, support the introduction of a private copying exception in the UK but on the condition that fair compensation be included.
The ISM’s Chief Executive and Head of Legal went to the High Court to support the music industry and the fight for performers and composers. The Claimants were arguing that European law requires that 'fair remuneration' be paid to right holders when a private copying exception is created (Article 5 (2) (b) of the Copyright Directive).
The ISM intervened in the case by adding a new argument – believing that by enacting these regulations (to allow private copying) the Government were giving a substantial economic advantage to tech firms. The tech firms have not been required to pay anything for this economic advantage which was, in effect, a free gift. The ISM believed that this counted as ‘state-aid’ under EU competition law and was therefore unlawful, because the Government failed to seek the European Commission's approval before bringing in the Regulations. Information from Incorporated Society of Musicians
AOI encourage illustrators to take part in this short survey on income. Europe Economics and the Institute for Information Law of the University of Amsterdam are undertaking a study on the remuneration (payment) of photographers, illustrators and designers, writers, journalists, authors of publications in scientific/academic journals and translators (collectively referred to as authors) for the European Commission.
The results of this study are likely to influence the legislative framework and EC policies that govern the remuneration of authors (creatives) and this survey gives you the chance to contribute to the research.
The survey should only take 10-15 minutes to complete, and responses are anonymous (neither Europe Economics, the Institute for Information Law of the University of Amsterdam nor DG Internal Market will be able to identify the individuals that have responded). In addition the surveyors will treat the individual responses collected as confidential and they will not be shared with any third parties. Only aggregated data will be used in the report.
Survey here (https://ec.europa.eu/eusurvey/runner/QuestionnaireforVisualArtists)
The closing date is 21 June.
Government has launched their orphan works licensing scheme, which can be seen here. This scheme was introduced to enable the licensing of orphan works, which may still be under copyright, in the UK for both commercial and non-commercial use (a work is an’orphan’ if its creator/rights holder cannot be identified, or if they are known, not traceable), alongside transposing the European Directive on orphan works to allow cultural organisations, such as museums, to copy orphan works on to their websites.
Accurate metadata/information which is retained with an image, either as part of the file name or embedded in the file, will help prevent an image becoming an orphan work and make it easier to search for. AOI recommend that illustrators always include creator information as metadata in their digital artwork files.
Cultural organisations may be the primary users of this scheme to enable them to copy works into new formats for preservation (which requires permission of the copyright holder), but as the scheme also allows for commercial use of an orphan work, other entities may use it to licence works for any other purpose. A fee will be applicable to licence orphan works.
Information about how to apply for a licence for an orphan work is available here. This includes an overview of the scheme, guidance on performing the diligent search on the work that is wished to be used to attempt to find the creator or rights holder of the work, guidance for returning rights holders (those who see their work has been licensed as a orphan work) and tools to help organisations see if they are eligible to use the European Directive to show orphan works.
AOI were part of the Intellectual Property Organisation (IPO) Working Groups for consultation, technical review and development of guidance for the scheme. The concerns we and other visual arts groups raised about the scheme were considered by IPO although not all were included. We believe the Diligent search criteria is very important to defien a work as an orphan and should be checked by IPO on all applications, although this will not be the case.
To see if your work has been registered as a possible orphan work that an applicant wished to use, view the register of orphan works here. This is a list with of artistic works with thumbnails of visual works which have had an application for use, and you can search through Still images and Moving image. AOI advise that illustrators check this list regularly to see if any of their works appear on the register.
Apply for a licence If you wish to licence an orphan work for your use
Guidance for returning right holders Use this if you discover your work has been licensed through the orphan works scheme
Diligent search guidance and checklists What is required to be done when searching for the creator/rights holder of a work you wish to use
The Governments Libraries team issued a consultation on PLR (the money received for loans from UK libraries - but not volunteer run libraries). As the representative body for illustrators in the UK, AOI responded as we have many members who contribute to books in all forms, and many who create artwork for children’s books and are therefore eligible for PLR.
A slight raise in the loan rate has been offered, and AOI support the rate raise per loan to 6.66 pence for the February 2015 PLR payments.
Currently PLR is not paid on audiobooks and ebooks, only physical books, and so we confirmed that AOI support the consultation comments made by the Society of Authors emphasising that s43 of the Digital Economy Act 2010 extends PLR to audiobooks and ebooks “lent out” from library premises for a limited time, but that these payments have never been implemented.
We also asked that the PLR extention to audiobooks and ebooks consultation be issued as soon as possible so that the goal of implementing the change in time for the 2014/2015 sampling year can be met, When this extension tales place the Independent Review’s recommendation that “There should be an upward rebasing of the PLR total to take this into account so that writers and other rights holders are equably compensated.” should also be implemented.
In addition we asked that Government protects library services from local council spending reductions, and that regarding the exclusion of some volunteer run libraries, that these are included in the PLR scheme to ensure that an accurate figure of loans are recorded.
Illustration Juliet Harris
Copyright exceptions have been revised or introduced in 2014 as the Government did not consider that copyright laws were fit for the digital age. They stated they wanted to find ‘a balance between the interests of rights holders, creators, consumers and users’.
AOI responded to the consultations on this matter in 2013, saying that the proposed exceptions were likely to create uncertainty due to the lack of definitions in the draught legislation. A lot of this remains in the legislation, which could mean that uncertainties for creators over how their artworks may be used remain, and the only resort would be going to court to define those definitions, which few creators would have the financial resources to do, as individual creators such as illustrators are often living on a low income.
Government have stated that these expanded exceptions may not be overridden by contract law, so a contract will not be able to prevent them, and be unenforceable. This could mean that creators find their work being used under a copyright exception when they have signed an exclusive contractual agreement with a client, and therefore could appear to be in breach of the contract.
Certain exceptions will only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.
‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. Questions to ask are: how would a fair-minded and honest person have dealt with the work? Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair. Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.
The public will be allowed to copy limited extracts of works when the use is non-commercial research or private study, but they must be genuinely studying.
This exception to copyright permits people to use limited amounts of copyright material without the owner’s permission for the purpose of parody, caricature or pastiche. So a cartoonist could reference an artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.
This exception only permits use for the purposes of caricature, parody, or pastiche to the extent that it is fair dealing. This would preclude use of the whole work.
AOI had argued that parody has long been used for artistic expression in the UK and we do not believe that an exception for this needs to be introduced.
This extends the previous exception, which allowed for use of quotations and extracts without permission only for the purpose of ‘criticism or review’, to now cover all types of fair quotation. Sufficient acknowledgement of the quotation must be given and the extent of the quotation should be ‘no more than is required by the specific purpose for which it is used’.
‘Quotation’ of an image was never satisfactorily addressed by the Intellectual Property Office. How can an artwork be ‘quoted’? A ‘quote’ of an illustration could be interpreted as an element of the work rather than the whole of the work. Use of a part of a work could possibly be an infringement of the illustrator’s moral right of integrity if they felt that use to be derogatory. See also the British Copyright Council’s comments on this exception.
Fair dealing for criticism, review or quotation is allowed for any type of copyright work. Fair dealing with a work for the purpose of reporting current events (i.e. in a newspaper, online or on the TV) is allowed for any type of copyright work other than a photograph. An acknowledgment is required.
Reproducing a work will be allowed for illustrating a point, for a non commercial purpose. The uses should not undermine the sales of teaching materials.
Performing, playing or showing copyright works in a school, university or other educational establishment for educational purposes will be allowed - if the audience is limited to teachers, pupils and others directly connected with the activities of the establishment.
Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment will be allowed, provided there is no existing licensing scheme already in place. Generally a licence will be required from the Educational Recording Agency
The making of copies by using a photocopier, or similar device on behalf of an educational establishment for the purpose of non-commercial instruction, provided that there is no licensing scheme in place. Generally a licence will be required from the Copyright Licensing Agency (who currently share this income with DACS for visual artists)
The personal copying exception permits the making of copies of media (CDs, ebooks, etc.) legitimately bought, for private purposes such as format shifting or backup without infringing copyright. For example the exception would allow the copying of content that has been bought on a CD onto an individual’s mp3 player, provided it is for private use.
It will be unlawful to make copies for anyone else or to make a copy of something not already owned or acquired illegally, without the copyright owner’s permission.
Personal copies can be made to any device that an individual owns, or a personal online storage medium, such as a private cloud. However, it is unlawful to give other people access to the copies made, including, for example, allowing access to personal cloud storage.
There are two exceptions to copyright for the benefit of disabled people. These exceptions cover physical or mental impairments which prevents a person from accessing copyright protected materials.
The first exception allows for making a copy of a lawfully obtained copyright work if the format is one that helps disabled people access the material.
The second exception permits educational establishments and charity organisations to make accessible format-copies of protected works on behalf of disabled people. Examples of both could be making braille versions of printed materials, or adding subtitles. This exception does not apply if commercially available copies are available.
Text and data mining is the use of automated analytical techniques to analyse text and data for patterns, trends and other useful information. This should not affect the visual arts.
A recording of a broadcast can be made in domestic premises for private and domestic use to enable it to be viewed or listened to at a more convenient time.
Intellectual Property Office have issued guidance notes on the copyright exceptions here
The final two exceptions to copyright, on Private Copying and Quotation and Parody, were introduced into law in October 2014. Information on all the new exceptions is available here. Contracts cannot override these exceptions, and so they will apply whatever a contract will say.
Private Copying exception:
Government say this is 'a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use.’ One of the main driving forces behind this exception was the desire to stop all the illegal ripping of music from one medium to another (eg CD to mp3), but it will apply to images too. Governement confirm the excpetion"will not allow someone to give or sell a copy they have made to someone else, or share copies from their personal cloud".
Government say ‘Adopting this exception will give people in the UK’s creative industries greater freedom to use others’ works for parody purposes. Drafting this as a fair dealing exception … is intended to allow creators to make minor uses of other people’s copyright material for the purposes of parody, caricature or pastiche, without first asking for permission.’ AOI had argued that there was no requirement for an exception relating to Parody, as Parody has long been used for artistic expression in the UK without the need for legislation to control it.
Our comments to the Government's consutation on the changes to copyright are below - please scroll down to Changes to copyright exceptions, Report on Consultation on draft legislation from July 2013.
Three Regulations which introduce new exceptions into the law, or extend existing exceptions, were introduced into UK law on 1 June 2014. These exceptions will allow use of copyrighted works, including illustrations, without permission of the work’s rights holder under certain conditions. The exceptions to copyright are for ‘research and private study’, ‘text and data- mining’, ‘education and teaching’, ‘archiving and preservation’, ‘public administration’ and to permit ‘accessible formats for disabled people’.
Parliament approved exceptions to copyright at the end of July 2014 for ‘personal copies for private use’, ‘caricature, parody and pastiche’ and ‘quotation’. The British Copyright Council deplored the approval of the final two Regulations on Private Copying and on Quotation and Parody.
The exceptions may affect illustrators, and AOI tabled its concerns in our submission to Government. Our comments are below - please scroll down to Changes to copyright exceptions, Report on Consultation on draft legislation from July 2013.