Thanks to @copyrightgirl I have been reading the snappily titled "GOVERNMENT POLICY STATEMENT: Consultation on Modernising Copyright". Here is the second part of my initial analysis looking at Extended Collective Licensing and Collecting societies (part one is here).
Extended Collective Licensing
I was going to tackle the second third of the consultation today but it turns out this has largely been done for me already. To save me the effort of re-writing something already better written (and to save you the pain of reading it) I'll just direct you, well, directly to the bemuso blog site where you can read his* analysis.
There's 4 sections to it so it may take a while.
Go ahead, jump there now, I'll wait here.
Now we don't agree entirely in our analysis, but only in context of who might be calling for this and benefitting from it. It's altogether likely that Rob (I hope he doesn't mind me calling him that) has sources of knowledge that I don't, but I wonder what makes him suggest that the people pushing for these changes (we agree that it's not the consumer) are "Google and the free content lobby". It feels to me that the people most likely to benefit from these measures are the currently incumbent collecting societies themselves.
So having concluded that the second section of this consultation serves only to bring confusion and complexity to both consumers and creators I shall move on to the final section of this document.
Codes of Conduct for Collecting Societies
This bit gets me down a touch because it shows such a lamentable failure to a) look at what's happened elsewhere and b) stand up for the public against vested interests.
Shorly after pointing out that this is a billion pound operation it says "However, the Hargreaves Review noted that collecting societies tend to be monopoly suppliers in the sectors in which they operate, and that there was evidence that practice could be improved in some areas. Hargreaves argued that greater protection was required both for members of collecting societies, and for their licensees."
It then describes feedback that raised issues "in relation to lack of transparency, administrative costs, and negotiation practices around licences and tariffs" - so pretty much everything they're supposed to be doing then?
Despite this we're going to extend these collecting societies? Even though there are plenty of other options that already exist out there in the market and aren't requiring government intervention (see the 3rd bemuso blog).
Clearly codes of conduct are required in order to make sure these collecting societies operate properly.
Well, no, actually that's not clear at all, but that's not how governments think.
But codes of conduct do a good impression of making it look like something is being done; that is definitely how governments think.
"Collecting societies and some rights holders favoured a purely voluntary model based on principles developed by a working group of the British Copyright Council. Considerable effort has gone into developing these proposals, and collecting societies argued that they would deliver the intended benefits of the policy. However, licensees overwhelmingly sought a statutory basis for codes of conduct, supported by the potential for penalties to ensure compliance and counteract the monopoly position of collecting societies. Their fear was that without a credible enforcement process, the codes would not have any real impact. This was seen as particularly important if collecting societies’ powers were extended (e.g. via authorisation to operate ECL schemes) to allow them to licence on behalf of non-members."
Well no shit. The vested interests want a voluntary code of conduct. Ask yourself how well that works for advertising and the press?
Fortunately there are some people involved who are at least nearly as cynical as me so we have "Government will therefore legislate to allow the introduction, through Regulations, of a backstop power to
enable the application of a statutory code of conduct. This power would be used in the event of failure by a
collecting society to implement or adhere to a voluntary code which encompasses the minimum standards."
I wonder if that will make it through to the final draft?
I still don't understand who, apart from the licensing agencies, is benefitting from either the ECL or the codes of conduct. This really feels like a classic case of "when all you have is a hammer, everything looks like a nail."
And I find that very depressing.