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