Richard Combes, Head of Rights and Licensing, examines the implications of the EU referendum result for ALCS Members

Etymologically speaking, ‘Brexit’ and ‘chaos’ both have Greek origins: the former a sub-editorial spin on ‘Grexit’, the latter a derivation of khaos, the term from Greek mythology identifying the void from which the universe emerged. In the days and weeks since 23 June – a period of political turmoil, economic instability and social unease – the only true certainty has been uncertainty. Even as the fog starts to clear, much remains shrouded in mist, notably the timetable and, crucially, terms for the UK’s exit from the EU. The following summary of the potential impact of Brexit for ALCS Members, therefore, combines our reactions to short-term issues with some speculation concerning the longer-term implications.

The primary function of ALCS is to collect money for authors, so let’s start there. Currently around 20% of our collections come from EU territories. Although these revenues derive from compensatory rights established under EU law – copying levies, retransmission schemes and library lending fees – this does not mean that an organisation from outside the EU cannot collect them. The rules governing international rights management and repertoire exchanges are set by supranational bodies such as IFRRO (International Federation of Reproduction Rights Organisations) and CISAC (International Confederation of Societies of Authors and Composers). These rules are founded on the principle of ‘national treatment’, which is enshrined in international copyright and trade treaties, and requires that, in any given territory, foreign authors enjoy the same rights and are treated in the same way as nationals.

Although these revenues derive from compensatory rights established under EU law … this does not mean that an organisation from outside the EU cannot collect them.

It would, however, be naive to assume that Brexit will not create future tensions within the operational framework of EU collections. Over the decades ALCS has built up a resilient network of partner organisations around Europe; we have assured them of our commitment to existing, collaborative working models and received reassuring and supportive responses. We will continue to stay in close and regular touch with European partners both individually and through our international representative bodies.

A specific concern raised by Members relates to library lending remuneration. Although this remuneration is mandated by an EU Directive, national implementation models vary considerably. Currently UK Public Lending Right (PLR) is open to claims from authors resident anywhere in the European Economic Area (EEA); by contrast, many countries apply their PLR funds to domestic cultural projects, rather than making payments to individuals at home or abroad. The key PLR sources for ALCS Members derive from the schemes in the Netherlands, Germany and France. We have good relations with Stichting LIRA, VG Wort and SOFIA, the scheme operators in each country, and will be meeting with them in the near future to ensure that there is no disruption to existing payments.

UK copyright law has been strongly influenced by various EU Directives over the last 25 years…

Moving into the political arena, in the short-term it seems inevitable that UK interests will have less influence on the ongoing discussions on the Digital Single Market and EU copyright modernisation programme. We continue to brief contacts in the European Commission and Parliament, focusing on the key issue of remuneration for use under educational exceptions. Looking further ahead, lobbying activities may increasingly have to be channelled through our representative bodies in Brussels, such as the European Writers’ Council and Society of Audiovisual Authors, to ensure we get our messages through to the relevant decision-makers.

The interplay between UK and EU copyright law is perhaps the area of greatest uncertainty. UK copyright law has been strongly influenced by various EU Directives over the last 25 years; clearly, the extent to which this continues to be the case depends on the terms of the exit settlement negotiated by the UK Government. For example, membership of the EEA would bind us to EU copyright law with only a limited say in its formation. While membership of the EEA is a known quantity, speculation abounds as to other more ‘customised’ options the UK might pursue. Amidst this uncertainty it is worth noting that, in terms of ALCS core income, the copyright provisions underpinning both the Copyright Licensing Agency and Educational Recording Agency schemes, which account for the vast majority of our current collections, are founded on domestic legislative models and not EU constructs like copying levies.

What might UK copyright policy look like in a post-EU world? Following the Hargreaves Review, UK copyright law has already introduced elements that go beyond current harmonised EU provisions, such as the commercial licensing of orphan works, Extended Collective Licensing and an exception for text and data mining. These were developed in response to market demands (real or perceived) during a process that was heavily influenced by the demands of the technology sector. Arguably the UK copyright framework has traditionally acknowledged a more commercial approach than the EU, not unlike the US, where the ‘fair use’ doctrine enables significant access to works without remuneration. A case study for what happens when the tipping point between access and fair reward slips can currently be found in Canada. By contrast, a number of European countries have adopted legislation in support of authors’ rights or are in the process of developing it. Wider EU copyright policy appears to be heading, albeit at a glacial pace, towards a greater recognition of legislative mechanisms designed to ensure fair treatment and remuneration for creators in the digital age.

So much for conjecture, let’s end with a fact. However Brexit plays out in the months and years ahead, at ALCS we will continue to do everything we can to protect and promote the rights of our Members.