Do you want a sweetie little photographer?

I have recently completed my application for the 2014 Design and Artists Copyright Society’s ‘Payback’. Something I do every year during the summer. Indeed, something I have done for many years, since the scheme was first made available to photographers.

But this year it has not been the same and many photographers have queried the extended mandate that we have been asked to sign – BEFORE we are able to collect that money that has already been collected on our behalf.

What is ‘Payback’
Best explanation is the one that DACS themselves give:

‘Payback is an annual scheme run by DACS to distribute the money owed to visual artists by various collective licensing schemes.

These licensing schemes cover situations where it would be impractical for you to license your rights on an individual basis. 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 that covers their students photocopying copyright protected books.

It’s not just libraries and universities that do this. Many different types of businesses and organisations buy a similar licence too.

The money is then shared out among the creators whose work has been featured. Authors and publishers receive a share of this money through Authors’ Licensing Collecting Society (ALCS) and Publishers Licensing Society (PLS) respectively. As a visual artist you can claim your royalties through Payback.’

Photographers all over the UK look forward to what is seen by many as their ‘Christmas Box’, as the payment which for many can be a thousand pounds or more usually arrives in early December, having been collected during the previous financial year.

However in 2014 something changed.

DACS has previously collected under the following licensing schemes:

Publications:
• Photocopying (by central, local government departments, universities and other business).
• Slide collection Licensing Scheme (in educational establishments)

Television:
• Cable re-transmission of UK Broadcasts
• BBC prime and BBC World
• Off-air recording of programmes (by educational establishments)

This year instead of simply acknowledging monies already collected, which photographers had always done as part of the application process, artists now had to sign a cleverly worded document including the following:

• I grant to DACS an exclusive licence and a mandate to negotiate, claim and administer the secondary rights in my artistic works, or the secondary rights in the artistic works of those individuals to the extent we are authorised to represent them (the ‘Authorisation’). I warrant that I have full right and title to grant this Authorisation. In consideration for granting this exclusive licence I will become a Payback Member of DACS.
This gives DACS the mandate to act on the behalf of photographers in licensing that currently doesn’t take place. It gives licence to DACS to expand PAYBACK in any way it sees fit without recourse to the very people it purports to represent.

• Is this good?
• Is this fair?
• Is it correct?
Let us be clear what is being done here. DACS is holding to ransom the money it has already collected on behalf of its members, and which is already there to be distributed. In order to get this money – legitimately belonging to the creators (not DACS) creators are obliged to sign away unspecified new secondary rights, giving DACS carte blanche to represent photographers without any further recourse to those same creators.

Regardless of how good DACS are, or how efficient they might be, why do they need to give the impression that they are holding their members money to ransom in this way, (at least that is how it feels to me, and I find it difficult to interpret their action in any other way)?

DACS tell me that they don’t mean to hold us to ransom. Yet having told me this they continued in the form it is (which still seems to me to be saying sign up or you don’t get your money we have already collected) regardless of the future?

Both the UK government and the European equivalent are keen on extended collective licensing, but not just for what has already been described. (see the DACS FAQ page) DACS want to be in a position to be THE collecting society granting licences on behalf of photographers, and our blanket permission means that they can claim to represent us, without any of that laborious having to consult us rigmarole. This actually will be very useful as DACS goes into battle with the big guns of secondary licensing The Copyright Licensing Agency.

DACS say that they will consult us before doing anything. But will they though, now that they don’t have to anymore?

Extended Collective Licencing, by its very nature removes control of licensing from the creator. If the image licensing market becomes one run through ECL then control of works removed from the creator, and even opting out of the ECL scheme will do little to regain that control (work will be used regardless and the creator will not get paid at all).

Q. Why do government and large organisations like ECL?
A. Because it is cheap.

Cheap to run and brings in blanket licensing which will of course be tailored to the low end product (and costings), but encompassing high end superior quality, heavily maintained collections of work.

Granting DACS this right to negotiate on our behalf and to be our representative in the Copyright Licensing Arena is a two-edged sword.

An astute observer might ask whether by signing the DACS authorisation as it now stands are photographers not implicitly condoning Extended Collective Licencing, not just of the things that we know about and approve but of ECL in much wider fields that we might not be so happy with?

The same observer might ask the question ‘What do DACS know that they are not telling us?’

What makes this all the more difficult is that I actually want DACS to represent me in the collecting of Secondary licensing, as currently they are the only option we have. As other options make themselves available then I may wish to move my allegiance. But what I do want to be sure is that DACS are truly representing my wishes and that they ask me BEFORE they undertake new activities and not simply present me with ‘fait accompli’.

 

… written by Pete Jenkins

Pete Jenkins

Pete Jenkins

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2 thoughts on “Do you want a sweetie little photographer?

  1. Photographers had high hopes of the Photographers’ Council when it was formed in summer 2013 but the PC has been inexplicably silent on the issues we’re facing. From infringements to rights grabs, from redundancies to restrictive contracts – these have apparently passed below the PC’s radar.

    So it’s doubly disappointing when, after 18 months of silence, we get the bizarre piece above describing the one organisation that actually fights for the money we’re due and which has just this month paid us £5 million as ‘holding us to ransom’ because they need those they pay to be members and to sign up for their cash.

    DACS can only collect the licence money for those who own the rights for which the money is due and who are represented by DACS. In the past that could be done informally but we now have large and powerful publisher backed organisations (and others) trying to take this money away from us for their members. As a result DACS needs to make it legally watertight that they, and only they, are entitled to collect our share for us. DACS also need to guard against these predatory organisations taking any additional secondary rights payments that are rightfully ours should new licensing schemes be developed.

    DACS is working with a range of creator organisations to safeguard our income. Among them are Editorial Photographers UK (EPUK), the Association of Photographers (AOP) and the Association of Illustrators (AOI). We all fully support DACS work on obtaining this income for us. Even Jenkins’ own union, the NUJ, strongly supports DACS. When Jenkins opposed DACS at an NUJ National Executive Council meeting every one of 30+ other members opposed him.

    Why is the Photographers’ Council trying to undermine DACS’ work in getting money we are owed into our pockets and instead is working to support the organisations who are so keen to take it from us?

    David Hoffman
    Lead Moderator Editorial Photographers UK
    Vice Chair British Photographic Council

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  2. Oh dear, it reads as if I and the Photographers council have failed Mr Hoffman, although I have to confess from his post I don’t really follow what the council or myself have done wrong or even could have done that he would ever approve of.

    “From infringements to rights grabs, from redundancies to restrictive contracts – these have apparently passed below the PC’s radar.”

    Nope, lost me there. Although I am not sure what action Mr Hoffman wished the council to take (it hasn’t had any communications from him as far as I am aware), I can say for certain that none of these problems have passed the council by. And let us be honest these difficulties have been with us as photographers for far longer than the eighteen months or so that the council has been in existence.

    The council has been at the forefront of the Union’s efforts to assist photographers made redundant from the Johnston Press group among others, including but not restricted to holding informative seminars (at the photographers’ own requests) on making the shift from staff to freelance workers. The council is working on more acceptable contracts that can be put forward instead of some of the appalling documents that so many of us have been asked to sign. This of course has been done (as were the seminars) together with other activists and union organisers as part of the NUJ response to the avalanche of problems NUJ photographers and photographers in general have to deal with. Individuals have contacted the council and council members about other issues, every one of which has initiated some sort of action.

    It is inappropriate for the NUJ Photographers Council to share every detail of every arrangement and negotiation that the council makes, especially on this informal blog, but if sufficient numbers of our members indicate that they would prefer that we document every detail of every negotiation even when this will prejudice their individual cases, our legal standing in our dealings, and our effectiveness to help them, I am sure that the Council would start investigating the extent to which they could within the Union’s current framework and through formal official channels.

    My piece about photographer relationship with DACS was based on my own experience. Let us not forget that I have been having dialogue with DACS for many years, both as part of the NUJ representation organisation and as is my right as an individual photographer who has been part of Payback for over a decade. If Mr Hoffman read in context what was written rather than from a standpoint of his own choosing, he might have realised that my issue with DACS was purely one of consultation (lack of).

    Any organisation that wants to represent me, which, by the way includes both the NUJ and the EPUK website, (both organisations do purport to represent me, one with a mandate and one without), should be regularly seeking my thoughts and opinions about its actions and specifically changes in policy.

    I am aware, as are many others of the changes that are currently taking place which basically involve larger organisations representing ‘Publishers’ wanting to remove us creators from the various avenues of remuneration such as ECL payments for television and photocopying that we have enjoyed through the efforts of the Design and Artists Copyright Society for so many years. How much stronger would the mandate that DACS seek become, if instead of simply saying ‘make us your representative or you can’t have the money we have collected on your behalf last year’, they communicated properly with individual members (they have us all on file) told us what the problem was, what they wanted us to do, and why they wanted us to do it?

    That would surely provide them with a rock solid mandate which we would all support, rather than, as now, where so many of us understandably question the reasoning behind what feels by us any of the understood definitions to be ‘holding to ransom’. Sign up or you don’t get your money.

    I talked to DACS for months about this issue. Members of DACS staff said they understood my concerns. At no point did they say my conclusions were wrong, merely that they did not want people to see their actions as ‘holding photographers to ransom’. Then they simply stopped talking.

    I support DACS, I have done since I was first aware of them, and I recognise that they are the good guys amongst a group of sharks (read my blog piece – http://petejenkinsphotothoughts.blogspot.co.uk/ ).

    It is incorrect of Mr Hoffman to say;

    “When Jenkins opposed DACS at an NUJ National Executive Council meeting every one of 30+ other members opposed him.”

    At no point did I oppose DACS. Had he been at the meeting, or had he asked me, I would have confirmed that my opposition was simply to the NUJ endorsing a policy which had not been put past the union’s photographers first, but had been simply been accepted by the Freelance Industrial council. A body where photographers are hugely outnumbered, on a subject that only affects photographers; the decision was made overwhelmingly by those who are not photographers.

    My request was simply that the Photographers of the union be given an opportunity to have a discussion with DACS about the changes DACS was proposing so that we as photographers could make a decision on something that affected us and no one else. My request was turned down on the basis that it was too late in the day to ask photographers what they thought and that the NEC would not meet again in time to ratify any decision the photographers council might come to. Maybe the question Mr Hoffman should be asking is why his union excluded the photographers’ council from the DACS decision in the first place?

    I would feel far more comfortable with Mr Hoffman’s (EPUK’s) purported support of my – and other photographers’ causes, or indeed maligning the photographers council or any other group – if I knew that he/they had first been consulting, or at least if I knew that meeting minutes had been requested, that more than a small self-selected group had been consulted or that I had seen its representative listening and responding to the full gamut of their concerns.

    We should be working together not having one esteemed photographers representative seemingly trying to undermine another, especially when such behaviours are often to photographers’ detriment.

    Pete Jenkins
    Mandated Joint Photographers Representative
    National Union of Journalists National Executive Council

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