Copyright

Musings on Phishy Copyright Societies


A recent incident with a Spicy IP friend in UK got us musing on one of our pet peeves on this blog, copyright collecting societies.

Imagine you are an academic who has published a few books available across libraries in the UK and US. One day out of the blue you receive an email from a person claiming to be part of an organisation called Authors Registry informing you of x amount of foreign royalties owed to you which have been collected on your behalf as ‘government mandated fee’ each time part of your book is photocopied at a library or university. All that they require you to do as next steps is fill out collection authorisation forms, which will enable them to retain their commission and make the payments due to you. What do you do?

fishysmell

Sounds too good to be true? Perhaps a little fishy? You sense a phishing scam but now your curiosity has been perked and you want to know more? Perhaps there is noting amiss after all and these amounts are genuinely owed to you?

Your concerns are valid, but this is no phishing scam, ah… now before you start eagerly filling out that authorisation form to grab onto those royalties perhaps you should learn of the catch.

 The Authors’ Licensing & Collecting Society (“ALCS”) is a royalty licensing and collecting society based in the UK which collects fee on behalf of its members and distributes royalties directly to authors living abroad, however in the US they use another organization known as the Authors Registry to help them distribute royalties.

In India, the Indian Reprographic Rights Organisation (“IRRO”) performs a similar function.  While collecting agencies can perform an important function for artists and authors, read IP Kat’s analysis here and here, by licensing works held by a large number of copyright owners under one umbrella, the manner of their functioning hasn’t been optimal in practice. Collecting Societies, which were setup with the intention to aid authors in efficiently licensing their work and reduce costs, have instead morphed into rent seeking monopolies.

One of the standout examples of this is in Canada where Access Copyright, a copyright collecting agency granted licenses for photocopying course kits at a nominal price to begin with and subsequently raised prices causing a number of universities to withdraw their membership in protest.

A slow replay of this scenario was visible in the Delhi University copyright case which we have blogged about extensively (the final judgment for which is still pending, we had last blogged about it here). One of the solutions proposed was that universities be mandated to take yearly licenses from the IRRO for any photocopying carried out even that which falls squarely within the fair dealing exception under S.52 of the Copyright Act, 1957.

 During my research on copyright societies and their utility, I came across a lot of literature on the working of a copyright society and its benefits in relation to the music industry but not so much literature apart from the Canadian and Indian example on how they function in relation to academic institutions. We had also earlier briefly mentioned a similar example in New Zealand.

 This got me thinking that perhaps copyright licensing societies if they function as they are supposed to, perhaps are more relevant to the music industry where the amount received from royalties actually forms a large portion of the earning for musician. There is also a much wider range for reproduction of musical works whether on the radio, concert, through ringtones, a club or playing the song in any public space such as a coffee shop, mall etc. Whereas books especially those written by academics will perhaps only be photocopied either in university libraries or by a photocopier and by either students or other academics for research purposes which would promote sharing and evolution of ideas and in turn actually promote innovation rather than if the information was restricted behind a pay wall. Also, most academics do not depend on royalties from their books as a source of their income, they almost always depend on the salaries earned from the universities which have employed them.

 However with the shift in online streaming of music platforms such as iTunes and the advent of digital right management systems the need for copyright agencies has been undermined further. Rights holders now have the option to manage copyright in their music and grant licenses without resorting to copyright societies.

Apart from their monopolistic rent-seeking attitude copyright societies have regularly been found to indulge in ‘copyfraud’ i.e. falsely claiming copyright in a public domain work, a phenomenon we had blogged about earlier this year here. Putting this in the context of the DU copyright case, the IRRO was being offered as the alternative option by publishers to collect royalties on their behalf even for photocopying as little as 10% of a book, which is covered within the fair dealing exception for education under Indian law, which as argued here amounts to paying for a right that does not exist.  Collecting societies including the IRRO have also been notorious for portraying themselves as holding rights to all published works when in fact they can give licenses, collect license fees and authorize reproduction only on behalf of their members.

 Collective Management of Copyright (EU Directive) Regulations, 2016

 And finally, the UK recently adopted the EU Collective Rights Management Directive, 2014/26/EU into their law. While its implementation needs to be seen and there is already some literature criticising it, it provides us some sort of a guide on regulation of copyright societies. In particular, the directive requires copyright societies to become transparent and publish more detail about their operations including an annual report, manner of distribution of amounts to right holders etc. In India some of these have already been reflected through the Copyright Amendment Act, 2012.

I’ll leave you with an interesting infographic titled, ‘Fair Use in a Day in the Life of a College Student’ available here, prepared earlier this year for Fair Use week  on everyday use of copyright material in our lives for you to decide on the delicate balance between overly zealous copyright protection vs. access to information.

Image from here

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