dacs – The BPPA

DACS – It's your money – Act Now

Every year The Design and Artists’ Copyright Society (DACS) distributes the fees paid by libraries and schools and so forth for copying copyright work – including photographs.
Basically that means they licence secondary uses of your work that you couldn’t possibly deal with on a day to day basis – and you are entitled to a share of the income! There have been changes to the scheme this year that are too tortuous to explain here – but the crux is that the usual deadline of 30th September has been moved to Monday May 1st.

THATS NEXT MONDAY!!

The new system wants you to file a complete list of every book or magazine publication you have ever had – which is confusing lots of people. IGNORE THAT.
You can still enter details of just three publications from magazines and qualify for around £700! That’s not three publications this year – that is three publications in your whole career. The same applies to uses in books.

BUT YOU HAVE TO DO IT NOW!!

If you’ve done it before, it takes about five or ten minutes to re-do. If you’re new to it, it’ll probably take about fifteen or twenty. Thats maybe around £700 for half an hours work – the best job you will get this year!!

DO IT NOW!!!

www.dacs.org.uk

What's going on at DACS? Part 2

In this second part of his assessment of what is happening with DACS, Andrew Wiard explains why the current situation is not something that photographers should accept.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

Insisting on ALL secondary rights – does it really matter? Is it such a big deal?
Yes it is, but first, what exactly are these secondary rights everyone is talking about? Fact is you will not find a concise legal, or any precise, definition anywhere (or if you find one, please let me know). They can be defined negatively – they are those rights which are not primary. And primary rights are? For want of a better definition, the rights we exercise directly ourselves.This is how DACS describes, not defines, but describes secondary rights: those “ it would be impractical for you to license……. on an individual basis ”. At first sight all sounds plain common sense. Our primary rights are those we exercise individually and directly (or through our agents) and as for photocopying, well, that’s best left to DACS. That’s secondary.
But hang on, who decides what rights it is impractical for us to license, and how? What’s secondary and what’s not? Photocopying is pretty obvious, but where is the line drawn and can we trust those who draw it?
Take the strange case of the European “Memorandum of Understanding”. I first wrote about this for the Stop43 website. The point here (and I’m afraid you really do have to plough through all that to get it) is that the signatories to this European memorandum were plotting to consign our *primary* rights to collecting societies (you should also read DACS’s reply). The idea behind the MoU was to republish out-of-print works, for the benefit of humankind of course, if the authors or publishers do not do so themselves. Their rights would have to be taken into account, but then what to do with embedded works, works embedded on the printed page?
Embedded Works? – photographs, to you and me. Ah, the solution is obvious – collecting societies!
Why? Why? If any publisher, any publisher, whoever they are, wishes to produce a new edition of a book containing a photograph which I have already licensed directly once, all I have to do is – do it again. Negotiate a further licence. Directly. Any photographer who supplies books for a living will do this as a matter of course. By any definition, we are not talking secondary rights here. These are primary rights. Our rights. Not secondary rights, the rights which according to DACS, are those it is “impractical for us to license on an individual basis”. But the rights we know perfectly well how to license directly ourselves. No doubt the publishers of out-of-print works will find dealing with us tiresome. All publishers find licensing any works tiresome. But however secondary rights are defined, they are most certainly NOT those rights which publishers find it oh so inconvenient to have to license on an individual basis! And we have no idea what other rights of ours will be considered secondary in future. This is why it is so important that any secondary rights agreement spells out precisely what rights are referred to, and any additional rights to be collectively administered thereafter are specified, negotiated and agreed in advance, and agreed without the threat of money being withheld.
A gang of European collecting societies agreed to this. And our UK rep there? – yes, you guessed it, DACS. Which is why, in their reply referred to above, they are so keen to make out that the memorandum doesn’t say what it means when it says what it says – or rather, as DACS puts it, it is all subject to consultation: “ a collective management organisation for visual works (such as DACS) would be obliged to consult with rightsholders prior to any agreement being reached “. DACS would consult. But that doesn’t explain what on earth they were doing going along with all this in the first place. Consult, over our *primary* rights? And, anyone remember being consulted?
DACS, consult? Really? The way they consulted about this new agreement of theirs? It went like this. First they got a small number of important figures into a room, told them all about the forces of darkness (true) but that none of this could be publicly revealed for fear of (legal?) consequences. Utterly false. It’s all coming out now, but nothing we couldn’t have been told right at the start. These figures were then to go out and tell all photographers, without going into details, that they must sign up. Which, BAPLA excepted, they then did. The one thing DACS did not do was consult their contributors. They represent us individually. They were after individual signatures. They should have talked to us, individually.
Instead, a series of inducements, “prizes”, to get people to sign up before the annual deadline. I was offered a prize draw, where I “could win up to £250 in vouchers to spend on art and photography materials” . And if I were to recommend Payback to a friend, “we’ll offer you both the chance to win £150 to spend at on art or photography materials at Jackson’s Art Supplies or Metro Imaging”. Talk about desperation!
Are we adults or kids to be tempted with sweeties?
No mention, of course, in these emails, of the new contributor agreement which had to be signed as the last stage of completing the claims form, or of its significance. Those discussions were only for the chosen few. If you doubt that, look at what happened to the NUJ’s NEC member for photographers Pete Jenkins, who dared to ask them what was really going on. DACS first offered him a meeting before the signature deadline. Then withdrew the offer, refused to meet him, saying they’d be holding a meeting for a wider group after the deadline. After the deal was done and it was all over! And, after the deal? Pete naturally asked to come along but was then told no, they were full up, and they had what they thought was a wide enough range of interested parties already.
Translation – no awkward squad, thank you.
Just before Christmas I received an email from DACS.

“ With the introduction of a new Payback membership, we are now able to formally consult with you on issues concerning your rights, and importantly, safeguard your existing and future royalties.”

What nonsense. They’ve been able to consult us, formally or not, for months. Before, not after, we had to sign. They just didn’t want to.
Let’s be clear what they did. They announced a new agreement. They said they would consult. But not, of course, the individual photographers required to sign. They then stuck to what they said in the first place. The DACS take it or leave it discussion, followed by their take it or leave it agreement.
And what if we did not sign? The payouts last Christmas were for sums collected before last year, that is before this new agreement which has only now come into force, collecting for future payouts in Christmas 2015. DACS was clearly saying, no signature, no payout. You couldn’t complete your claim for this year without it. In other words, they were applying this agreement retrospectively, to enforce compliance. Signing under duress – legal? – well, which one of us had the time, the energy, and most of all the money, to find out?
So, there you have it – consultation, DACS style.
This is serious. DACS say they will consult in future about collecting any other secondary rights. I think I now know what that means. We have given them the power not only to interpret that word as they see fit, but to collect whatever they think falls into that category, and regardless of what we think. They say we can always withdraw our signature at a future date, but so what? Because what we have signed up to now will now in all likelihood give them, under the new ECL regulations, the power to collect the “secondary” rights of all photographers, whether signed up or not. So you can unsign if you like, but you’re going nowhere as DACS will just carry on collecting.
What to do? The law is an expensive but no longer the only way to bring collecting societies to heel. Under the new ECL regulations they have to behave. So the CLA thinks it can collect for pictures but not pay photographers? Time to shop them to the Secretary of State. That’s one way.
There’s another. It will become increasingly practical for us to collect directly. Cue Paul Ellis of Stop 43: “ The solution is obvious – the Copyright Hub, which when implemented will suddenly make a load of ‘secondary’ rights ‘primary’, because it will no longer be impossible for individual photographers to manage them.” The future should indeed lie with the Copyright Hub, see here: https://www.copyrighthub.co.uk/ .
That however is still under development, that is for the future, and today we are already trapped by our signatures. And did we really have a choice? For there’s no doubt whatsoever that the vultures are circling. This from DACS earlier this month:

“ In DACS’ view, the CLA is trying to use its market power to reduce the existing 8% share of its revenues that go to visual artists and possibly risk the future of the Payback scheme. DACS has insisted that the existing arrangement should continue until the end of September 2017. This will help manage the transition to any new arrangements and protect our members’ incomes in the interim. To date the CLA has not accepted this.”

The latest is that DACS has now, using the authority we have given them, forced the CLA to accept this – temporary – deal. Only a temporary deal, but a deal none the less.
For this we have paid a heavy price. Let’s be clear. DACS may be on our side. But we have just given a hostage to fortune.

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

A Gun To Our Heads – The new DACS Agreement, part 1

In the first of a two-part blog post Andrew Wiard, a member of The BPPA’s Board, asks “What’s going on at DACS?”

Last year we all had to sign a new agreement, and if we didn’t – no annual payout at Christmas. So, why? Short answer, because DACS is at the bottom of a collecting society food chain, and they are all fighting like rats in a sack. Over our pictures, and our money.

Collecting societies – we photographers know that every year we get our DACS money, but not all of us know how or why. Here’s how it works. I’ll make this as simple as I can. In the beginning, way back in 1983, writers (through ALCS, the Authors’ Licensing and Collecting Society Ltd) and publishers (through the PLS, Publishers Licensing Society Ltd), established the CLA (Copyright Licensing Agency Ltd), jointly owned by them, for collective blanket licensing on their behalf. Which means authors and other right holders do not issue licences individually or directly, instead the CLA charges clients a one-off fee for a licence to make multiple copies of multiple works, without identifying any of the copyright owners. So what are we talking about here? Essentially, the photocopying of books and magazines, though there are also other sources of income such as cable retransmission of TV programmes. Which all fall into the category of so-called ‘secondary’ rights. We exercise our ‘primary’ rights directly, collecting societies only stepping in where it is impractical for us to do so. After paying a small amount of money to overseas right holders, CLA then gives the lot to writers and publishers. So what about us then? We photographers said hang on a minute, we are copyright holders too. Eventually the CLA gave us our share through the DACS (the Design and Artists Copyright Society Ltd) payback scheme. Though with only an 8% cut – think that’s because we were late to the party.

Why not newspapers you might ask? Because they set up their own society, the NLA (Newspaper Licensing Agency), paying out to the newspapers, who then pay their freelance contributors any money they think they might owe. Or not, as is usually the case. Anyone remember getting an NLA payout at Christmas? Which is where all the recent fighting started, and that needs a blog all to itself, but briefly, authors were furious at not getting their share of the NLA money. And then a lot of magazine publishers jumped ship from the CLA to join the NLA instead, now re-branded NLA Media Access. After all, why share their (our) CLA money with writers? Or anybody? The ALCS began to fight NLA Media Access, while also fighting – I mean, of course talking – with the remaining CLA publishers over their shares from the CLA. Who have now decided to save money picking on DACS, by tearing up their agreement. That’s right – make the photographers pay! So what exactly are our brothers and sisters in the ALCS – the writers, photographers’ best friends – playing at? They are joint owners, with the PLS, of the CLA! In the middle of this unholy mess, the CLA chief exec departed.

It would seem the CLA put a gun to the head of DACS, and so DACS put a gun to ours. Sign our new agreement here, or get no Christmas money.

Why so? What is this new agreement and how is it supposed to get DACS out of this hole? It requires us to sign over to DACS our secondary rights, exclusively. Actually a new agreement makes a lot of sense. Signing exclusive rights to DACS means they can stand up to the CLA, ALCS, PLS, NLA Media Access or anyone else trying to grab what’s ours, on firm, or at least much firmer, legal ground. It also means DACS can withstand scrutiny under both new EU directives and new UK legislation. Which any other organisation grabbing rights signed exclusively to DACS would – or rather should – be unable to do.

So what’s the problem? Why not just sign? The problem is that DACS is not just seeking the specific rights they already exercise on our behalf today, but ALL our secondary rights tomorrow. The distinction is crucial, see part two of this blog. I’m not the only one to object to this. BAPLA (The British Association of Picture Libraries and Agencies) said, rightly, that the new agreement should be confined to only those secondary rights currently being exploited by DACS, i.e. photocopying/scanning, educational recordings and cable re-transmissions. If DACS is to administer any further rights that should be the subject of future consultation. What could be wrong with that? BAPLA is right. Now we photographers don’t always see eye to eye with BAPLA , and especially when it comes to DACS. Many BAPLA members think they’re the ones who should be taking the DACS money, and a big cut, before handing the rest to us. We think it’s our money ( and it is ) and that we should deal direct with DACS, unless we choose, as some of us do, to go through an agent. Big money at a stake here. But whatever schemes BAPLA may now be planning, with our pictures, we do have common cause when it comes to how and what DACS actually collects. We and our agents must insist on our right to license our photographs directly without a collecting society coming in between – unless, that is, that is totally impractical and absolutely unavoidable.

All we should have been asked to do last year was sign up to what DACS had already collected in previous years. Now what could be simpler than that? But DACS wouldn’t hear of it. They seem to think they don’t have to listen to us – or rather, while they make a great show of listening, they just don’t take any notice. The obvious objections were repeatedly made. They didn’t change a word.

So where does this leave us? As far as I can see the picture now looks like this. The ALCS doesn’t know if it has the legal firepower to fight NLA Media Access. The CLA doesn’t know if it has enough to fight them or their new magazine publishers either. DACS doesn’t know if it has enough to fight the CLA. But there’s one thing DACS knew for sure – we individual photographers did not have the time, energy or the money to take them to court over our payout. So who’s in charge here – us or them? The photographers who took the pictures, or the organisation that claims to represent us?

That money was collected in 2013. In withholding our money to enforce a new agreement for the future they were applying it retrospectively to money that already belonged to us. That was our money. They should have paid it without question and then sat down with all of us to negotiate – repeat, negotiate – the new agreement.

Instead, when the CLA put a gun to the head of DACS, DACS put a gun to ours.

Why all this really does matter? – see Part Two.