British Music Rights is the voice of Britain’s 50,000 composers and songwriters, music publishers and their collecting societies. The members of British Music Rights are the British Academy of Composers & Songwriters [BACS], the Music Publishers Association (MPA), the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS).

We welcome the current consultation by UK-IPO on changes to copyright exceptions following the Gowers review of Intellectual Property; furthermore, we look forward to progressing the implementation of the Gowers recommendations throughout 2008.

Before giving detailed responses to the five suggested exceptions, we would like to outline five basic principles underlying our response:

• Creators must be paid: The relationship between creator and consumer is at the core of the entire music industry, and indeed, any creative industry.  The creator lays the foundation for an entire value chain, from which a variety of other businesses can and do benefit. At present, the creative industries contribute some 7.3% of the UK’s GDP,  currently comparable to and projected to exceed the financial sector. Failure to reward the creator will render the entire value chain unsustainable. Composers, songwriters, music publishers - in fact, the entire music industry - want to command as wide an audience as possible.
• Copyright is the currency of creativity: Copyright is the core mechanism that enables composers, songwriters, music publishers to earn an income from their creative endeavours - whether directly from consumers, or indirectly from those enterprising businesses they help to build value from their creativity. Consequently, any change to the copyright framework must be carefully considered in order to avoid irrevocable damage to the individual creator and the creative industries.
• Equilibrium must be maintained: Copyright law already provides a finely tuned balance between the interests of the creator and the general public, ensuring an incentive for creativity and innovation, whilst at the same time respecting the interests of citizens. Over the past 300 years, the existing system has proved remarkably adaptable, while any new exceptions can never be future proofed. There is a significant risk that the cumulative effect of the suggested changes will erode copyright and breach the Berne 3 Step test, thereby having unintended negative consequences for the creative community.
• Licensing is the future:  As our members have illustrated in their businesses over the last hundred years licensing provides a mechanism which ensures a value chain where everyone is rewarded. Licensing has provided trouble-free access to music for ‘traditional’ media such as TV and radio, and we can foresee no rationale why these established adaptable principles should not apply in the new digital world. We already ensure the widest availability of music, while maintaining a true market value. Licensing offers not only commercial solutions but also already benefits educational establishments, visually impaired people, or public lending by libraries.
• The Berne Three Step Test: Any change to the system of exceptions must be compatible with the Berne Three Step Test. This internationally recognised test ensures that the creator has at all times the ability to control and financially benefit from his creativity.

Executive summary:

Educational establishments (Sections 35 and 36 CDPA)

We welcome suggested changes to extend Section 35 CDPA to cover distance learning uses along the lines already provided within the ERA plus model.

Section 35 CDPA should however not be extended to include a recording of an on-demand communication of a broadcast including music; this is not required and potentially conflicts with existing commercial business models.

We welcome the proposals to extend Section 36 CDPA within the built-in limitations.  We note the availability of certified licensing schemes such as the one provided for by CLA.

We agree with the need for a secure authentication mechanism to limit the extended exception to the virtual learning environment. 

Format shifting (New exception)

We welcome the determination of Government to introduce an exception for format shifting but request that Government also accepts its obligations to support creativity in the way prescribed by the European Union. British Music Rights supports the proposed licensing solution developed by the Music Business Group on behalf of the music industry.

Private study and research (Section 29 CDPA)

We are not aware of any failure which would justify any extension of Section 29 CDPA.

Library privilege (Section 42 CDPA)

We welcome the proposed extension which will allow libraries to make copies of sound recordings, films and broadcasts for non commercial, archival purposes only. We are however extremely concerned that any subsequent communication to the public must not go beyond the fabric and building of the library premises.

Parody, caricature and pastiche (new exception)
We reject the introduction of a new exception for parody, caricature and pastiche. We are not aware of any justification, nor have we been presented with such. Any such extension will have a serious impact on the economic and moral rights of music creators and publishers. 

Comments on specific recommendations:

Educational establishments – Recording of broadcasts (questions 2 and 3)

Section 35 deals with the reproduction of works and performances, and the subsequent electronic communication within the premises of an educational establishment of  broadcasts and included underlying works. We understand that the consultation addresses two different features of Section 35 CDPA:

• The uses of the recordings of broadcasts should be extended to cover distance learning, i.e. an electronic communication to people associated with the educational establishments outside their premises.
  
  We agree with the extension of Section 35 CDPA to cover the electronic communication for non-commercial purposes to people associated with the educational establishments outside their premises. In fact, our community already offers a relevant licence via the Educational Recording Agency (ERA):
  
  Since 1st August 2007 ERA has been offering an additional licence (ERA plus) which will enable licensed ERA Recordings to be accessed by students and teachers online, whether they are on the premises of their school, college or university, or at home or working elsewhere within the UK.
  
• The subject matter should be extended to allow educational establishments to record and make available on demand communications (Questions 2 and 3).
  
  We strongly disagree with the proposed extension of Section 35 CDPA to cover recording and the making available of on demand communications. The raison d’etre of this exception is to ensure that recordings of broadcasts are available for educational establishments when they are demanded for educational purposes. This does not apply to on demand communications which are, by definition, available on-demand.
  
  Such an extension will conflict with the three step test, since there is a variety of businesses providing on-demand content to educational establishments on commercial terms: hence the exception will conflict with the normal exploitation of the work and does unreasonably prejudice the legitimate interests of the rights holder.  The argument that content should be free because primary and secondary schools have invested £252 million in communication technology in 2005 is untenable – both the individual creators whose creativity is being used for educational purposes and the businesses producing content for schools are also entitled to be paid.

Educational establishments – reprographic copying (questions 8 to 10)

Section 36 CDPA allows the reproduction of passages from literary, dramatic and musical works by an educational establishment for instruction if less than 1 % of any individual  work per calendar quarter, and no licence available. We understand that the consultation addresses two different features of Section 36:

• Section 36 should be extended to cover distance learning, i.e. communication to the public
• It should also apply to other classes of works to enable reproduction and communication to the public of multimedia works (including sound recordings an broadcasts)

As far as our music publishing community is concerned, a code of fair practice has been developed between music publishers and educational establishments www.mpaonline.org.uk/files/pdf/Code_of_Fair_Practice.pdf.

We welcome the proposed changes insofar as they do not conflict with the existing exploitation (Three Step Test) since musical education such as private and self tutoring, as well as teaching in educational establishments constitutes a substantial market for sheet music. For some of our music publisher members, the educational market represents some 1/3 of their income, even in the digital world. Any communication should be limited to the VLE for which they are destined (Questions 9 and 10).

We note that generic certified licensing schemes are available beyond the scope of the exception via the Copyright Licensing Agency. Similarly, it is noteworthy that PPL and PRS licences will continue to be required in case the use is not limited to reprography but also involves audible elements. There is no need nor justification to extend Section 36 CDPA to other classes of works (Question 15) since this fails to differentiate between the scope of Section 35 and Section 36. As far as the use of the works covered is concerned we support the extensions required to cover distance learning.

Secure environments (Questions 4 to 7 and Questions 11 to 14 respectively)

We agree that access should be subject to security measures within the visual learning environment (VLE). E.g. Digital Rights Management providing authentication measures, including a written declaration of the student (c.f. Sections 38 and 39 CPDA). Whilst we accept that passwords might be passed on outside the VLE, we are very concerned with the inclusion of e-mail communication given the ease of onward distribution (Questions 4 and 7/ Questions 11 and 14). We suggest that the reference to “teacher and pupils” in Section 34 CDPA is not appropriate in the context of Section 35 and 36 CDPA (Question 5/ Question 12) . Since educational establishments already have a duty to monitor traffic within VLE for reasons which are not copyright related (e.g. criminal records) and the protection of data within the VLE through firewalls which prevent the hacking into the VLE systems, it seems logical and  also economically justifiable for them to monitor the compliance of their pupils with the security measures (Question 6/ Question 13).
 
Format shifting (Questions 19 to 29)

The UK-IPO is considering a new exception allowing consumers to make a copy of a work they legally own, so that they can make the work accessible in another format for playback on a device in their lawful possession.

We are members of the Music Business Group (MBG) and support their detailed proposal of an exception subject to a license. This ensures that the UK’s copyright framework provides a careful balance between the interests of technology companies, consumers, and creators and right holders including our members. As stated in the introduction of the MBG paper:

• Unquestionably, there is a value produced by the ability to format shift for both consumers and commercial enterprises which directly arises from the transferability of music.
• It is imperative that creators and performers should benefit directly from this value; ultimately it is their creativity which underpins the entire value chain
• The only solution which achieves these goals is a flexible and market-led approach based upon a business-to-business relationship
• For over 100 years the music industry has provided exactly this infrastructure: the ability to develop such business relationships and distribute income directly back to creators and right holders

For the details of the proposal please refer to the paper of the MBG.

Research/ private study (Questions 30 to 49)

The UK-IPO is considering three options to change section 29 CDPA:

• Broaden the existing exception to allow copying of sound recordings, films and broadcasts for private study and research, or
• Limit such an expanded exception, e.g. by requiring  a link to an academic institution, or
• No change to law but address the underlying issue in another way
• We remain to be convinced about the social and economic justification of any  expansion to also cover sound recordings, films and broadcasts. Whilst we understand the ideology behind the proposed expansion, we feel that the evidence provided within the consultation document (para 117) is only anecdotal and cannot justify the proposed changes to Section 29. Para 117 reads: “The Review found that the current arrangements could be causing problems in using materials for genuine academic purposes and that the current arrangements (which do not cover sound recordings and film) are inconsistent. Concern was also voiced about the impact on the overall cost of negotiating rights for sound recordings …”

Licensing offers are available from commercial services, and there is no reason why the need to secure a license should be overturned by an exception (Question 42). We hence dispute the compatibility of an expanded Section 29 CDPA with the Three Step Test.

The proposed changes are evidence of the cumulative interplay between the suggested exceptions. The interface between the extended exceptions - in particular re: educational establishments, format-shifting and research/ private study - potentially covers de facto all activities by an individual which are by definition for private purposes. Additionally, researchers will generally be linked to an educational establishment or a library and will hence be able to rely on the extended exception of Sections 35 and 36 or 42 CDPA respectively .

In order to avoid any form of abuse of the system should such a change to the exception be considered at all, it needs to be very limited - in particular in regards to non-commercial research (not for private study) and for genuine academic purposes without any impact on its commercial publication (Questions 40, 44 to 46). Non-commercial research for the purposes of the exception needs to be clearly defined in Section 178 CDPA.

Whilst technological protection measures will not offer a silver bullet solution, we rebuff the legal approval of a Digital Rights Management workaround. Any workaround as suggested in questions 47 and 48 endangers  the purpose of technological protection measures, and renders any protection worthless. As far as rights management information is concerned, a workaround is not required in the first place. 

Preservation and library privilege (Questions 50 to 55)

We understand that UK-IPO is considering expanding Section 42 CDPA by:

• Allowing libraries to make copies of sound recordings, films and broadcasts for archival purposes.
• Allowing prescribed bodies to format shift to address the problem that occurs where works are held on unstable media, and that more than a single copy be permitted where required to preserve permanent collections in an accessible format.

The preservation of the national heritage for future generations is a crucial pursuit and we are convinced that libraries such as the British Library will be responsible operators. We hence wholeheartedly concur with the need for libraries to be able to make a copy of copyrighted works for archival purposes. In fact, already now a huge variety of items from a number of European libraries are available online and easily accessible, for instance through the European Library portal. The British Library is already involved in various positive initiatives such as “Turning The Pages” which allows museums and libraries to offer members of the public access to precious books while keeping the originals safe and “Collect Britain” which offers some 90.000 images and sounds from their collections. 

Any changes to the UK legislation will respect the parameters given by the European Copyright Directive which limits any communication to the public of archived copyright material. Article 5 of the European Copyright Directive and relate to “specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage” (Article 5 (2c)) and the “use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.” (Article 5 (3n). Whilst the digitisation for preservation and the provision of access are logically connected, we urge UK-IPO to expressly refer to the limitation to the premises of the Library.

Whilst we are not concerned about the numbers of copies  (Question 52) we have not seen any evidence which would justify a broad  extension to museums and galleries (Question 54).

Caricature, parody, and pastiche (Questions 56 to 66)

We totally oppose the introduction of a new exception for caricature, parody, and pastiche. We can not see nor have we been presented with a social or economic rationale for introducing an exception. Moreover, such a broad exception will endanger the economic and moral position of composers and music publishers. An exception for caricature, parody, and pastiche would put in jeopardy the revenue stream from synchronisation which constitutes 10 to 15 % of the music publishing income.

1. The UK Government has already examined these issues in detail during the implementation of the Copyright Directive in 2003 and decided – rightly in our view - not to introduce such an exception. We consider it a failure by Gowers to single out caricature, parody, and pastiche for his recommendation, apparently based on nothing more than a passing reference in one submission without providing any legal or economic justification for the need of such an exception.

We applaud the comments expressed in the Consultation document (para 191) pointing out the limited evidence provided in the Gowers review and the flourishing of parody under the existing system: “The evidence published in support of the recommendation was fairly limited in its scope. Many believe any problems in this area are minimal or simply require consent and/or licensing from the rights holders, as with most other uses of copyright works. For the rights holders, use of their work, or a part of it, for the purposes of parody, can be a sensitive issue.”

We are not aware of any problems experience by practitioners; caricature, parody or pastiche abounds in the UK  (e.g. French and Saunders; Private Eye; Bremner, Bird and Fortune).

2. The current legal framework in the UK is not directly comparable with that on the continent of Europe.  In France, for instance, the exception for parody exists in the context of the strong moral rights the French legislator provides for their creators. Without a similarly strong moral rights regime in the UK the proposed exception would leave UK creators with virtually no means of seeking redress for any abuse of their works that they may object to and therefore at an unfair disadvantage in comparison to creators in other countries.  Questions 65 and 66 betray the UK IPO’s willingness to erode still further the already weak moral rights serving creators in the UK.

As far as other common law countries are concerned, it is worth pointing out that whilst a parody could indeed be considered “fair use” as expressed in para 197 of the Consultation document, it still has to comply with the four conditions set out in Section 107 of the US Copyright Act. 

3. As far as our constituency is concerned, caricature, parody or pastiche will fall into one of two categories:

• Either there is no substantial copying of the expression of an idea, and no permission is required.
• Or there is substantial copying in which case permission must be sought. Right holders already offer flexible licensing systems which operate successfully.

In the second scenario, where there is substantial copying, the existing system based on some hundred years of jurisdiction by UK courts provides the music creator with the ability to deny permission, for example in instances where the creator believes that his work in being used in a way that would be opposed to his moral principles or where his work is being used in a derogatory way, reflecting badly on his personality or prejudicing his reputation or career prospects.

A composer’s right to deny permission to a specific adoption of their work in particular at a key moment in their careers is crucial if he is concerned about the impact on his livelihood.

The Gowers review states:

“Weird Al Yankovic has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs…..

Weird Al Yankovic’s success proves that the current system of asking for permissions first is working. The sentence continues….

…but he had to ask permission from rights holders."

We cannot see any reason why he should not ask for the permission from whoever owns the copyright to the works that he copies and imitates to great comic effect and with considerable commercial success.  Changing the existing efficient licensing system would have the effect of diminishing the value and integrity of the original work.

An exception for caricature, parody or pastiche could completely undermine an important income stream by making it possible for those users who currently seek permission and pay a licence fee for particular types of use to use the same music without seeking permission or a licence by claiming that they are merely parodying.  Some commercial music users could, for instance, attempt to rely on such an exception when making what are essentially cover versions of songs. Such abuse is already common place in the comparable fair dealing exception on criticism, review and news reporting (Section 30 CDPA): some business are offering CDs of complete musical works with introductory critical comments claiming “fair dealing.” It constitutes an undue strain on the financial and human resources of right holders to challenge such claims, despite them being logically indefensible.

Other commercial users might seek to avoid paying the original music creator or publisher (by way of a synchronisation licence) when using music in advertising or as part of a multimedia product such as in a film or computer game.  Synchronisation licensing represents 10-15% of UK music publishing income. Whilst it is difficult to come up with  precise figures on parody we establish that any exception will conflict with this substantial source of income for music publishers. A 2005 survey of the rights income of 38 music publishers found that the estimated income from synchronisation licensing  was more than £53 million. Additionally, the MCPS handles synchronisation licensing for some members and the income from synchronisation licensing for TV advertising involving library and production music was over £5 million in 2005.

British Music Rights
26 Berners Street
London W1T 3LR
Tel: 0044 207 306 4446
www.bmr.org