Why is the DACS vote important?

thebppaOpinion, Photography, Photojournalism, Press Photography, Remember, Uncategorized1 Comment

By now all in the DACS Payback scheme should have received their email prompting, expecting you to vote Yes for the CLA’s ECL.
For What? CLA = Copyright Licensing Agency, ECL = Extended Collective Licensing.
So, again, What? Today the CLA issues collective licences for ( amongst other things ) photocopying, DACS gets a cut from them, we then get our cut from DACS.
But what does this new “Extended” mean? Answer – that the CLA would then be able to exercise the rights of all photographers, for evermore, even if they have not agreed to give the CLA these powers.
This would be a dramatic, permanent and in effect irrevocable change to our sole right to license our own pictures.
So, exactly what rights would the CLA and DACS remove from our control?
They are not telling. Nowhere in this email or even in their FAQ’s do they give a straight answer to this question.
All you get before scrolling down to the point where you are expected to vote Yes is this thoroughly disingenuous, bald, don’t you bother your little heads about this statement:
“ The CLA operating an ECL will not have any direct impact on how DACS currently operates Payback”.
Currently? What about the future? This is not the annual deal you sign with DACS. This is forever. So, what exactly is this deal?
You’d better read it carefully before you sign a blank cheque. They’ve buried the small print very deep, but it can be found, and here it is. You grant them ‘secondary’ uses as follows:
“ Secondary uses include the uses currently licensed by the CLA for the photocopying, scanning, printing and digital re-use and communication of works that are part of composite works, like books and magazines, and also licences governing document delivery services; the uses made under the educational recording licences currently operated by ERA and uses made under cable retransmission; but also international uses of works remunerated through levy systems etc.”
What kind of contract is this? ‘Include’ ? What else do they/will they have in mind? These are not unintelligent people. They are capable of writing a clear English sentence. This vagueness is quite deliberate. Of course we all understand and accept, welcome, collective licensing of photocopying. For most of us that is what DACS is for, has always done, because it is quite impractical for us to deal with this directly, or at all. But look what’s next…
“digital re-use and communication of works that are part of composite works, like books and magazines”
Let me paraphrase. Digital re-use and communication of pictures in books and magazines. I hope that has woken you up. This is frightening.
We are now clearly talking about Primary, not just Secondary rights here.
The principle should be clear. They should only collect collectively what we cannot collect individually. That is what this deal should say. But it doesn’t. So I’m voting NO.
Which reminds me of an extraordinary statement at a British Library conference on Mass Digitisation I attended in July last year. DACS representatives let slip they had been discussing with libraries/museums about the possibility of issuing them blanket licences to put all their pictures online!
I have already had discussions with institutions about putting some of my pictures online. Identifiable pictures, identifiable and contactable author – these were not discussions about secondary licensing. These were discussions about my primary rights.
If this deal goes through they may not even need to pick up the phone.
We are not supposed to worry because if the CLA gets their ECL we have the right to opt out.
Really? How? Again, nowhere are we told. Do we just give our names? Are we expected to notify the CLA individually about hundreds of thousands of pictures? Topped up every week? And how would the CLA tell those to whom they issue licences that our pictures are excluded?
If they have answers to these questions they should have been there on the page before the prompt to vote. And if they don’t – this scheme should not go ahead at all, and we should not be voting on it.
As I said, I will be voting No. A clear majority is all they need, so if you feel the same, please do not abstain but vote too. And do check if your agency is voting/ has already voted on your behalf.

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thebppaWhy is the DACS vote important?

Comments 1

  1. David Hoffman

    Apologies for the capital letters – this is a bug with the BPPA comments and there’s nothing I can do to stop it.
    Oh dear. Here we go again.
    This is just a re-run of the hysterical call to man the barricades that Andrew launched with the Digital Economy Bill and again with the Orphan Works regulations. Both were painted as evil attacks on the very heart and soul of photography. In fact, neither have had the slightest effect on our businesses.
    DACS FAQs here: 
    and I’ve pulled out the relevant responses below.
    Can I opt out of ECL?
    Yes, though only once the ECL scheme has been set up. Enabling rightsholders to opt out of the scheme is an essential pre-requisite for setting up an ECL. If the CLA’s application to run an ECL scheme is successful then they will be required to provide clear guidance about how you can opt-out. DACS will also make this guidance available on our website and publicise it to our members.
    If you are ultimately opting out of an ECL that the CLA may operate once approved, you would no longer be able to claim any Payback royalties for these secondary uses of your works as they would fall outside of the licence that CLA offers to its licensees.
    At this stage, if you do not agree with CLA’s application to operate an ECL, then you should state in DACS’ poll, that you are not consenting to CLA’s ECL application.
    Re: primary licensing: What’s the difference between primary licensing and secondary uses?  
    Primary licensing refers to the original reproduction of a work in a book or magazine, and this is licensed directly by the copyright holder.
The royalties available through Payback, via the CLA, are for the secondary uses of your artwork, for example when people photocopy, scan or record it.

For example, when a student in a library wants to photocopy pages from a book which features your work. As the creator of the work being photocopied, you are entitled to a royalty, but rather than ask the student to contact you every time they photocopy your work, the library pays an annual licence fee to the CLA that covers their students photocopying copyright protected books.

The CLA operating an ECL simply means that their current business of selling secondary use licences to universities, schools, business etc. will be extended to rightsholders who are currently not formally represented by any of the CLA member organisations: DACS, ALCS, PLS and PICSEL.
It does not give the CLA greater rights or permission to carry out primary licensing on behalf of rightsholders.
    Photographers voting ‘no’ is unlikely to change the result, we’re outnumbered. In any case the only effect of stopping the ECL will be to reduce the amount of money that trickles down to us from Payback.
    I hope that Andrew and any others opposing the ECL will have the integrity put their money where their mouth is and also opt out of it so that the rest of us can share the money they’re tossing away. But I’m not holding my breath.
    Meanwhile the BPPA seems entirely unconcerned by the real hijack of our Payback money that BAPLA/PICSEL is preparing or by the Hyman Archive dumping its promises of ‘no primary licences’ and trying to establish a licence to market anything and everything ever published in a magazine.
    David Hoffman

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