Collection Societies - does the UK - or elsewhere - need minimum standards?

Well well well, a very interesting night at Portcullis House at the UK's Houses of Parliament with a distinguished panel, chaired by Eric Joyce MP, and with at least two senior judges in the audience, and three - yes three - 1709 bloggers in attendance! Lets take that last point first - as myself (Ben), the newly re-installed Amanda (Harcourt) and John (Enser) were all in attendance at the interesting discussion on the whys, where's and wherefores of Collection Societies in the digital age - in the UK - in Europe - and globally. The nice thing about this panel discussion was it wasn't all about content owners ..... was it?

The background was the Hargreaves Review and the preamble to the debate was this: The UK is one of only three countries in Europe which does not have statutory supervision and minimum standards for collecting societies. In his Review, Prof Hargreaves recommended “collecting societies should be required by law to adopt codes of practice, approved by the IPO and the UK competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets.” The Government accepted this recommendation because, “like the Review, the Government has heard a range of concerns about the operation of copyright collecting societies in the UK and elsewhere: from members on questions of transparency and governance, and from licensees concerning what they see as heavy-handed, misleading or unfair practice in charging for usage of works.”

From my own point of view - the idea of NON statutory but voluntary codes of practice for collection societies seemed accepted - with certain riders. And they are important riders - mostly to stop collection societies wriggling of the hook! And there were a great many 'elephants in the room' and some but not all were explored in a busy debate. Whilst Dr Stef van Gompel, postdoctoral researcher at the Institute for Information Law (IViR) at the University of Amsterdam provided some much needed independent input and an European slant, it was up to Frances Lowe, head of regulatory and corporate affairs at PRS for Music, to make a number of well reasoned and articulate cases for her Society. I have to say that Frances really "took it on the chin for collection societies". It begged the question of 'why no PPL' comments – as PPL were seriously bashed by here by copyright users - and there were certainly PPL staff members present – but they were strangely silent. A reason we should know?? It was Brigid Simmonds OBE, chief executive of the British Beer and Pub Association (BBPA), and Chris Johnstone, head of legal at Music Choice, who made challenging and well reasoned presentations on where the ‘user’ comes from. Whilst still a tad music industry focussed, the panel discussion - and comments from the floor - made refreshing change - so often these debates don't involve 'users' at all, but seem focussed on IP law, content owners and IP lawyers

Perhaps the best received contributions came from our judges – with High Court judge Sir Richard Arnold pleading for a new Copyright Act, and copyright Tribunal Chair Colin Birss QC saying he could run the Copyright Tribunal more like a Copyright ‘Board’ – but he would need a bit of funding!

But the most interesting comments for copyright users came from Brigid Simmonds whose organisation successfully challenged a PPL tariff rise at the Copyright Tribunal (at some cost), resulting in a refund of £20 million for pubs, clubs and hotel who used recorded music. Brigid said that whilst broadly in favour of voluntary codes of practice, when looking at how these affect copyrjght users such codes need to be written by both the collection society AND representative bodies of users. I might go further – perhaps all collection societies should be driven by statute to create voluntary codes of practice self regulating both their relationship with members and with users - but in default of such an agreed voluntary code then one would be imposed ‘from above’. A statutory based code with key elements could be developed but then tailored to each collection society's (and users) particular circumstances. And one key provision of such a code affecting users would be that when any tariff was to be reviewed there must be a proper and well timed consultation and the questions posed in such consultation should be set and agreed by BOTH sides: Perhaps in these strained economic times when an increase in tariff is suggested by the collection society, two questions might always be 'why is the rate going up?'and ‘how can the society reduce the tariff?’.

I am assured that a newly written blog covering all of the night's frolics, fun and fantasies will be available on the PICTFOR website VERY shortly. The website is here at
http://www.pictfor.com/2011/10/copyright-collecting-societies-does-the-uk-need-minimum-standards/

Pan-European Collecting Society for Digital Licensing

Thanks to a tip-off from Hugo Cox - who clearly spent the holiday weekend in the UK browsing the International Herald Tribune and the New York Times - readers might like to keep an eye on progress of a plan being proposed today in Strasbourg by European Telecommunications Commissioner Viviane Reding and Meglena Kuneva the Consumer Affairs Commissioner. The proposal is that consumers be enabled to shop online throughout the EU on the payment of a single licence fee for media products. In justification the proposal says:

"The offer of content online is growing more and more but the current regime is still locked into national territorial licensing, with the result that EU consumers are often prevented from legally watching content anytime, anywhere on any platform."

The New York Times observed that resistance would be expected from the EU collecting society network which administers rights territorially across the 27 states and (ergo) different copyright regimes. You don't say! Like democracy, collective administration might be the worst form of [administration] (pax Winston Churchill] "except all those other forms that have been tried from time to time" - like endless individual owners being sought out by consumers seeking licences, or piracy or file-sharing perhaps?

There is the problem of pricing. If there is a European-wide licensing price, how is such a price point to be determined (or indeed regulated) and accommodate competition concerns? There is the risk of penalising consumers in economies that are less developed by charging high prices that are out of step with their local economic conditions. Alternatively a lower, single EU-wide price penalises creators and owners in countries with a tradition of higher value licence fees who suddenly are faced with such a drop in the value of their copyright revenues that it damages future investment in their local creative and cultural economies. It is not in the interests of creators and owners if consumers can simply acquire media at rock bottom prices in less developed Member States - the bucket-shop effect (left). Nor is it, in the long term, in the interests of consumers, consumer choice or the long term future of creative investment right across the EU (and its international economic muscle) if values of content are driven down right across the board.



One hopes the Commission may look for guidance to Article 5 (2) Berne, namely that "the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed", as a guide to the territory in which the consumer is liable to payment for the licence to download and thus the price would reflect local differences in tariffs or value.