Weekly Writers: Copyright Licensing
I don't have the standard author view on this
Here’s the Weekly Writers Monday post. Thanks to my paid subscribers, today’s post is open to everyone.
Copyright Licensing
I criticised Public Lending Right back in May. Now I will apply myself to overturning another sacred cow in the land of the UK writer.
First, the basics. UK law allows a certain amount of copying and re-use of published (and copyrighted) works. Hence many actions are legal even without additional licences, though the guidelines are often confusing.
The Copyright Licensing Agency (CLA) sell licences that allow a little bit more copying without the threat of the CLA or relevant publisher taking legal action.
The CLA and the Publishers Licensing Society (PLS) were both set up by the Authors’ Licensing and Collecting Society (ALCS). Their financial model is that, when licences are sold by the CLA, a cut of the money is kept by the CLA/ALCS to fund themselves. (10% in 2024; so for every £5,000 you earn they would keep £500.) Then what is left is passed on to authors or publishers. The exact division of it is a bit of a gamble, since the CLA only has the vaguest idea of whose work has been copied, by doing occasional (partial, and mostly ineffective) samples, then multiplying the results to determine who they will give the money to.
To register with ALCS you have to create an account, pay them £36 (the 2024 fee), add details of your books, articles, scripts, websites, blogs, contact details, payment details and so on, and keep everything up to date. Every new item you publish has to be added, and any changes to rights or licensing of existing items also have to be updated here. There is a lot of admin at the start, and if you are an active author, probably more for the rest of your life. (Aside #1: in 2024 ALCS is still guilty of one of my pet annoyances: making a personal Title field mandatory, even if you don’t use one or agree with such hierarchical and patriarchal archaisms.)
As with Public Lending Right (PLR), this is something you can register for. Unlike PLR, this isn’t a system established by law, but is just a commercial body that represents the interests of itself and its members. And note that that this only applies to a subset of authors and publishers they represent – paying members who specifically chose to be represented by ALCS. That’s a key point. Anything allowed by CLA licences only legally applies to the whitelist of works registered by ALCS members. CLA licences do not apply to any work that isn’t specifically registered, and if you copy those items beyond what the law allows, then – regardless of the CLA licence, which is irrelevant in the case of non-ALCS members – you are breaking the law.
I have some issues with them. Oh Mighty Mousse-Lord, this might be a big one.
1. Aggressive Licensing
In my career as a librarian and adviser to librarians I often had to deal with collecting societies. I have seen heavy-handed letters and emails, often threatening, talking about all the crippling legal implications and “risk of non-compliance” or “serious infringement” if you didn’t pay them for a licence. All this, even though in many cases the licence wasn’t required because the law already allowed a certain amount of use under the “fair-dealing” (fair use) provisions.
The type of collecting organisation you might be most familiar with in the UK are the TV Licensing people, seen as much-hated snoops who pester you continuously until you take out a licence. If you don’t have a TV they’ll refuse to believe you and still send you regular warnings and threats. I would get junkmail letters off them all the time, no matter how many times I told them I didn’t own one because I hate TV. The librarians I spoke to often told me organisations like the CLA were a bit like that.
I had contacts in libraries across the UK, in all sectors, and it was quite common to hear about them being hounded by licensing and collecting agencies, seeing chunks of their budget going on that rather than books, staffing, learning resources, education, and opening times. And that is another key difference from PLR (Public Lending Right). PLR is paid by central UK Government, so doesn’t impact on library budgets. But licensing and collecting societies go after libraries and educational institutions directly, asking them to pay, so it does impact on their budgets. In one case (which I discussed in a 2015 article), a licensing society had been really hammering libraries, sending letters arguing that since they had computers for public use the PCs could in theory be used to access media (films and music) illegally, and it would count as a public broadcast, so libraries should take out extra licences ... It seems nonsensical to the average person but this is what went on behind the scenes.
Then they often go further. In 1996 the CLA set up “a compliance arm” called Copywatch. The site included a “Give information” snitch form for grassing up your organisation: “You can provide the information confidentially here”. The CLA would then use the information to force another organisation to take out a CLA licence, or face prosecution. When I checked the other day the site seems to have been deleted (though it gets referenced still). The attitude of the CLA could feel like you were dealing with a combination of bully and class sneak.
There are many cases where the CLA has targetted institutions that don’t pay them for a CLA licence, gradually gathering information looking for the inevitable situation where, for example, out of thousands of copies, someone makes one that is a bit longer than the laws allows. After gathering evidence from spying and any snitch reports, the CLA would then taking the organisation to court for a lump sum plus an agreement to always pay for a CLA licence in future. E.g. here: “Brighton and Hove City Council has been forced to stump up an undisclosed sum after infringing copyright laws. Officials have reached an out-of-court settlement with the Copyright Licensing Agency (CLA) to cover legal costs and backdated licence fees.” It all seems so mean-spirited and sneaky, the same as when music licensing societies go into shops that don’t have music licenses to try and catch them out playing music or having a radio on. Even more so when they target educational institutions.
Let’s think about this for a moment. Suppose a university has a canteen that still uses proper cutlery rather than wasteful takeaway packaging. And a student takes a knife and tries to rob a bank with it. Then stabs someone with the knife when their meticulous and supposedly-foolproof plan goes wrong. Would you prosecute the student who did the stabbing, or the university whose knife was used in the crime? I think it is pretty obvious that it would be ridiculous to prosecute the university. They hadn’t known of, condoned, or committed a crime. They’re not responsible for someone abusing their trust and using their property for an illegal purpose. But when it comes to copyright, common sense goes out the window. Suppose a university or council or library has a photocopier, for copying things within the limits the law allows (maybe with guidelines displayed on a poster by the machine). And a student or visitor copies beyond what the law allows – maybe a few chapters of a book about their favourite band. Again, the organisation hadn’t known of, condoned, or committed a crime. They’re not responsible for someone abusing their trust and using their property for an illegal purpose. It is the individual who is at fault. Yet it is the organisation that the CLA would persecute (because it is the organisation that they want to force into being a customer).
I’m sure it would fit a Monty Python sketch.
Man in a black suit. “Take out one of our licences.”
Librarian. “Why?”
“It protects you.”
“From what?”
“From being prosecuted.”
“By who?”
“By US.”
“So it’s kind of like Mafia protection money?”
“Careful what you say, guv’nor.” Man in black suit strokes some nearby machine tenderly with a gloved fingertip. “Photocopiers contain paper and have a nasty habit of ... burning down.”
And so organisations would surrender out of a kind of fear, or from the legal and informational complications and obfuscation, or maybe just treating the licences as an extra form of insurance.
No doubt many of the individual artists, musicians, authors, actors and so on that sign up to collecting societies have no idea how heavy-handed these kinds of bodies can be “on their behalf”. But the business model of a collecting society is based on acquiring rights-holding members (since the society has no content of their own to license), then aggressively selling licences to use that material.
We now have a profusion of licensing and collecting societies. I remember that just for one type of organisation (independent schools) in one country (England) the librarian told me they had to budget for more than ten licences from different licensing societies, including: The Copyright Licensing Agency (CLA); The Educational Recording Agency (ERA); Christian Copyright Licensing International (CCLI); Phonographic Performance Limited (PPL); The Performing Right Society (PRS); Mechanical-Copyright Protection Society (MCPS); Motion Picture Licensing Company (MPLC); Filmbankmedia (Public Video Screening Licence – PVS); Newspaper Licensing Agency (NLA Media Access); PMLL (Schools Printed Music Licence – SPML). No, that list is not comprehensive, there are over a hundred globally. And yet, the ALCS support the extension of this Orwellian system, as their website said they work with “55 collecting societies around the world” and “encourage the establishment of collective licensing schemes” – argh, no, please, no more of them!
What annoys me, as someone who supports education and information sharing, is that in most cases I’d have said to the organisations such as libraries, “Sure, use my material, no need for a licence – I’m just happy to support you.” I’m sure I'm not the only author who would take that approach. But instead the organisations are pushed into taking out licences they often don’t need.
2. Lobbying For Stricter Copyright Restrictions
The truth is that all professions are made up of individuals who will have differing views on the major topics of relevance. My previous career in librarianship was exactly the same, where organisations such as the Chartered Institute of Library and Information Professionals (CILIP) would claim to represent all librarians, when a majority of staff working in libraries were actually not members of CILIP, and often disagreed with CILIP’s stance on certain topics.
It is impossible for any organisation to properly represent the views of a profession such as authors, because it assumes the interests of all writers are aligned. It can only represent the viewpoints held by some people in that profession. And therefore, any organisation claiming to represent the views of a profession must automatically be lying. So why do they do it?
Membership pages always talk about the “benefits of membership” and “what we do for you”. But there is another side, not made overt – what you do for the organisation. If they lobby and campaign then their perceived strength is made up of the membership numbers. By being a member, you are adding to that strength. But it’s a problem if they are campaigning on an issue you disagree with: you are then acting against your own goals. It’s why, if I owned a car (which is as unlikely as me owning a TV), I wouldn’t join the AA, who campaign for more roads criss-crossing through dwindling green spaces, but would join the Ethical Transport Association (ETA) instead. You join something, you put your faith in it. Don’t let your good faith get used for things you don’t agree with. Membership is a form of legitimisation that works both ways.
Licensing and collecting societies are often involved with political lobbying. The ALCS said: “Our varied lobbying and campaigning work encompasses everything from press campaigns to gain media coverage for issues of topical importance, to direct lobbying of government on vital matters of policy which directly affect writers.”
In the past this has involved pushing for tougher copyright laws, allowing fewer exceptions – because that means they can then sell licences and justify their existence. There’s self-interest here, and why they would never campaign to open up IP laws in ways that would make their licences unnecessary, even if that is what authors wanted.
And the ALCS has managed to embed itself in government to make sure its interests are pushed. The UK has a parliamentary All Party Writers Group (APWG) which says it wants to represent writers, and yet, rather than work with organisations run by writers (like ALLi), it instead focusses on particular interest groups and lobbying organisations who set it up in 2007, such as the ALCS, which makes its money from licensing. And it is a very close relationship. I just checked the Briefings page (2024-03-08) and eight of the nine briefings had been written by the ALCS. The contact email address for the APWG ends in alcs.co.uk too. It gives the impression that the APWG is just a mouthpiece for that organisation.
However, I don’t want tighter IP laws, I want more open ones, and think creatives should campaign for more openness and fewer restrictions, not the other way round. Openness benefits creative people and industries.
It’s why I often get annoyed when publishers fill their copyright page with unfriendly threats, embargoes and warnings, telling you what they forbid you from doing (even when the law often allows you to do those things!). I support many more concessions for re-use in particular circumstances, and removal of restrictions, so the CLA/ALCS etc have opposing views to those of authors like me. They campaign against opening up, whereas I believe culture should be shared (and cited).
This lobbying is why I can't join ALCS or a licensing society (even if I wanted to), because I allow people to do more with my work than their licence would allow if I signed up. Joining them would mean compromising on my authorial principles. I’d have to restrict the rights I grant my readers in order to comply with their regulations. It’s why anything I write is automatically excluded from Copyright Licensing Agency (CLA) and similar licences: not because I am restricting my work, but because I am making it more open than they allow. In the same vein, I don’t want to support an organisation that might campaign for even more restrictive IP laws.
I imagine very few ALCS members have read the contents of all the lobbying submissions made in their name to the APWG (and others) by the ALCS – after all, who has time to do that? And, just as the AWPG don’t actually represent the views of all authors (even though their first listed aim is "To represent the interests of all writers”), nor do the ALCS, or Society of Authors, or the Writers’ Guild. Each represents, at best, the views of some of their members, who are only a tiny subset of the whole population of millions.
3. Licensing And Collecting Societies Collect Money They Aren’t Entitled To
We’ve established that none of the collecting societies represent all creators in their sphere.
For example, the Motion Picture Licensing Corporation does not represent all films made. We have a similar thing with music licensing bodies – if you own a public venue you’re pushed to buy PRS for Music and a licence to play background music (PPL), even though neither licence actually covers all music that is made, and there is lots available that is excluded from their licences or royalty-free.
Yet the wording used by collecting and licensing organisations often implies that they do represent everyone, presumably to make licences seem better value for money. It also helps to hide the elephant in the room.
If you license rights (as collecting societies do) you can only legally license rights that you have specifically been granted. It must be opt-in, not opt-out. And you must make it clear that the licence only covers those items. Further, there must be a way for people to check what is covered. The only way to do that is with an easily consulted whitelist of items where permission has been granted to include it in the licence.
The CLA/ALCS fail on all these counts. Let me explain.
Firstly, how clear do they make it that their licence only applies to the limited opt-in whitelist of members (and who those members are)? Read their leaflets. Look at their site. I just visited the CLA site [checked 2024-03-08]. They heavily promote how much you can do with a licence. The very first sentence is “A CLA Licence provides blanket permission, protecting you from the risk of legal action for copyright infringement, where your organisation copies from books, journals, magazines or websites.” Lots of focus on what you can do, but little mention of the limits of the licence. Nowhere on the homepage does it clarify that the licence only applies to the partial group of opt-in authors and publishers, and does not cover authors and publishers who have no connection to the CLA. That’s hardly “blanket permission”; and it certainly doesn’t mean a licence-holder is protected from the risk of legal action. You will usually only see the reality when you read between the lines. The CLA want to sell more licences. They don’t want to point out their limitations. (They also keep the pricing of their licences locked down in most cases.) But then that becomes misleading, as it means they are giving false confidence to anyone with a CLA licence.
Anyone copying too much of an item that is not specifically included in the whitelist will then be breaking the law. How does the CLA know what is being copied under their licence? Most of the time they don’t. There’s no way they could know, short of standing a staff member next to every photocopier in the UK and recording what is copied or scanned. So to hide that weakness in the scheme they sometimes hold “sampling weeks”. The CLA told me “We undertake royalties data exercises with licensed organisations to help us pay the authors, publishers and visual creators whose work is being copied.” Librarians I spoke to said they were a pain up the arse to administer, and were just a tickbox exercise so the CLA could pretend it actually knew what was being copied. The idea was that anyone photocopying in an institution that week would fill in a sheet (one near each photocopier) with what they’d photocopied. The CLA would magically multiply the results to work out whose work had been photocopied most, and give them money. But, of course, most people ignored the forms. I worked on a desk by a photocopier more than once. No one would fill the sheets in. Most people wouldn’t even see them. The samples were so badly collected and tiny they were more misleading than useful.
Even so, when the CLA did some of its ineffectual sampling weeks, if it found that anything has been extensively copied under a CLA licence but which they don’t have an agreement for (perhaps the majority of releases nowadays, especially with the rise of independent authors), then the CLA know the law has been broken. But, of course, they won’t report that crime (at least, I’ve never heard of that happening) because that would annoy their paying (CLA license-owning) customers after the CLA told them the licence was “protecting you from the risk of legal action for copyright infringement”.
Secondly, there must be an easily consulted whitelist of items where permission has been granted to include it in the licence. But there isn’t any such thing. What would the CLA do? A huge, constantly changing printed manual by every photocopier, and the requirement for every user to browse through it and find each item they want to photocopy before they make a copy? It’s impractical, which is why the CLA have never done it. The only option for a student or staff member in an educational institution is to leave the photocopier, wait for a free computer, log in, go to the CLA website, manually search for every item to see if it is covered by a CLA licence or not, log out, return to the copier, and only copy those items covered by the licence. Which is exactly why no one does that.
I’ve worked in numerous educational institutions, and been in hundreds of libraries (workplace, school, college, university, business, private, national, public). An academic library might have thousands of staff and students using copiers every day, and if you sit by a photocopier and watch people use it, the process is the same in each case: approach the copier, slap book or journal on, copy, walk off (probably just leaving the copied item there for a friendly, intelligent, lovely librarian to deal with). I’ve never observed anyone stop and browse the CLA website on their phone to check if the CLA licence allows them to copy that specific item. It would be horrendously impractical, which is why no one does it, even though it is the only way to be sure that what is being copied is something the CLA include in their opt-in licence. The system is stupid.
Which is why many copies every day will be illegal even though the institution has a CLA licence. Because there’s no realistic way to check what items are included, and which copies are legal to do under the licence. The whole system is a fudge.
When I went to the CLA site just now, the homepage didn’t even have a means of browsing that whitelist – because they want to pretend there’s no need, their licence is “blanket permission”; instead there was just lots of hard sell pushing you to buy a licence.
Because it is so difficult (perhaps impossible) to find out what the licence includes in any convenient way, as soon as you go beyond fair use it becomes difficult to avoid breaking the law. However, the organisation knows that at least by having a CLA licence, they won’t be taken to court by the CLA! And so the fear of litigation (from the CLA and any publishers who support them) pushes more organisations into taking out the licences.
Thirdly, we’ve already established that licensing only works on a whitelist (opt-in) system. Anyone who hasn’t registered with a collecting society is not included in their licence. It doesn’t matter what the reason is: they have never heard of the society, or dislike them, or have used Creative Commons licences, or just want their work excluded. All non-subscribed people are in exactly the same position. They have not opted in, so their work is automatically excluded.
And yet, the ALCS do collect money, even for works that aren’t covered by the CLA licence. You can even go to their website and “Search to see if we’ve already collected some money for you.” They also have a separate “Online royalties checker” box that lets you check if they have illegally collected royalties on your works. It’s weird because they have no right to be holding any money for authors who aren’t members.
Let that sink in.
Yes, they will offer some of that money to you if you investigate and find that is the case, then go through the convolutions of registering with them after they’ve already illegally collected money. Oh, and agree to give them £36 of it, plus 10% of anything else in the future as admin costs: admin the author never asked the ALCS to do, via selling rights the ALCS had no permission to sell. And the money is withheld from the author unless they agree to give ALCS their cut and to join them. So if an author doesn't want to join the ALCS, or agree on the ALCS stance on the issues that the ALCS campaign for, the ALCS will either keep that money or pass it on to other authors – money they had no legal entitlement to collect.
Imagine if I licensed Disney’s work to a games company (conveniently keeping quiet about the fact that I don’t have the right to license it – I just tell them I represent a lot of media companies, kind of blanket coverage). I get a payment from the games company. I then contact Disney, and say, “Hey, look at this, big ears, I made you this money, as long as I get paid a cut and you sign some agreements then you can have the rest!” They would sue me to oblivion for illegally collecting money on rights they owned, because my action remains illegal whatever I do with the money, even if I try to give it to the rights holder. Yet that’s what the ALCS/CLA is doing. The difference is, the average author doesn’t have the money to take on ALCS/CLA in a big legal case. Authors are not big companies, and we already saw that IP law benefits the rich and powerful. And in this case, ALCS/CLA have access to plenty of legal know-how. So they get away with it. It’s a loophole they are fully aware of, but hope never to be challenged on.
One of the ways they try to fudge this ugly truth is by saying they have “opt-out” excluded lists (good luck finding them easily on the ALCS or CLA websites). They claim that anyone can register to make sure their work is NOT included in the licence. (Of course, as we saw already, that is irrelevant when no one at photocopiers has any way of knowing what is or isn’t included.) Then they try to pretend the licence is opt out rather than opt in, hence the “blanket coverage”, though, even in that situation, it would be a lie to call it blanket coverage when they know it doesn’t cover many works! If they illegally collect money on your work and leave it sat in their bank account then that’s on you – you should have opted out!
No.
Excluded lists are irrelevant. The basic truth, worth repeating, is that collecting societies can only license rights they have been specifically granted by a creator (or their publisher) opting in. Everything else is automatically excluded, without any creator needing to do anything. You don’t have to opt-out of something you never opted into. There is no presumed consent, unlike the new body part donation law. The very fact that the CLA claim to have excluded lists and opt-out processes is a massive red flag that they are trying to cover up an element of their business model.
Back before I understood what was happening I did once try to opt out, in 2016. I ended up complaining to CLA and ALCS. They didn’t listen to my concerns, but did add me to some weird almost impossible-to-find page where it said some work was excluded, but only listed six authors: me, JD Salinger, Thomas Dylan, Matt Groening (The Simpsons), Ken Blanchard and Vic Lilley. Of course I now know there are millions of authors whose work is excluded because they never licensed it to the ALCS/CLA, but I was naive back then. And I was angry at them again in Sept 2019 when the CLA said they wouldn’t agree to exclude my publishing imprint because they didn’t update the excluded publisher list any more (even though it was still openly available on their website with no warning that it was out of date). Apparently visitors were meant to psychically intuit that the author exclusion section was still used but the publisher exclusion section wasn’t. The best I could do to stop them licensing work they had no right to license was to follow their edict that I jump through hoops by creating an account on a third party site and keeping it up to date forever with each book that was excluded, rather than it being a blanket exclusion. It was an attempt to make the process as convoluted as possible. I refused, as my work was automatically excluded, without me needing to do anything. So it led to the situation where the CLA knew certain works were excluded (e.g. all Organic Apocalypse-published titles, now and into the future), but the CLA refuse to communicate that to the people they sell their licences to. Likewise they have a weird, partial and disingenuous opt-out list that only includes a tiny fraction of excluded works, making it dangerous to use.
Even if you have a CLA licence, copying more than a fair use amount of a work that isn’t registered is illegal, and the number of works and authors that haven’t opted in grows every day (because every day there are new authors and new books published). The excluded list is irrelevant and is an attempt to hide the fact that they collect money illegally, and sell licences under false pretences.
A solution. What I’d want.
The solution to all this seems simple to me. IP law is too restrictive, and should allow far more re-use and sharing. I’ve already made suggestions in the section “Can IP Law Go Too Far?” in my book From Idea To Item. With changes like those, there would be no need for a complex superstructure of various budget-sapping licences, exceptions, sampling, different bodies for each type of right, apportioning, membership, collecting societies, and aggressively litigious agencies, and a hydra of different organisations for each country, and odious admin, wonky infrastructure, and confusion about what’s covered and who needs what, and endless complications – we would just have the law. What these collecting societies currently license would (and should!) be free.
As to author incomes: as I said in the post on PLR earlier, Universal Basic Income (UBI) would make a far bigger difference to us, without any of the complications.