1 Licences for Europe Working Group 3 Sub-group: Scope of potential for the WG to promote solutions with regard to television archives Helen Keefe, April 2013

2 Identify: -areas for discussion and further work -any sub-teams to tackle those questions -our goals for the next 7 months Commission aims for this meeting:

3 Public Service Broadcaster Perspective – Recap (BBC) Our duty: To maintain an archive representative of all we broadcast or distribute Our ambition: Transform the ability to search, discover and access the library of content that UK licence fees have created Digital Public Space – access across digital platforms, wherever and whenever audiences are Curating and linking content in new ways Supporting wider public space The challenge of existing licensing: deadweight administrative costs Shift from low volume, high use to high volume, low use and from few to many platforms for first and secondary exploitation Plus the passage of time: older agreements did not envisage digitisation or making available online; need to identify and trace current right holders; limited collective licensing for underlying works

4 Public Service Broadcaster Perspective – Recap (BBC) Our TV archive: -Around 600,000 hours of TV programmes -These days, everything is recorded and kept for min. 5 years -All high value programmes like drama, entertainment, and all news and current affairs – keep forever: heritage and reuse/ repeats -Some selection, e.g. for a long-running quiz show – keep examples -Formats degrade over time and replay technology becomes obsolete – if we dont transfer to a modern format, the material is lost (video tape to digital…) -Careful storage: controlled environment for film (temperature, humidity, fire…); data warehouses for digital

5 A possible approach? The MoU on Out of Commerce Works – Beginning an Analysis Identified by previous WG meetings as a possible reference for further dialogue Could it be relevant to the question of broadcaster archives and AV distribution models: -In substance? or -In principle, as an overall approach? An initial contribution for discussion…

6 1) Scope: Out of commerce Commission has suggested out of distribution, and asked how that might be defined Need to consider: -Broadcaster business models: very different to books and journals! -Ongoing market developments in online: future proofing -Commercial and non-commercial models; fair remuneration to rights holders MoU on Out of Commerce works: For the purpose of the dialogue on out-of-commerce works, a work is out of commerce when the whole work, in all its versions and manifestations is no longer commercially available in customary channels of commerce, regardless of the existence of tangible copies of the work in libraries and among the public (including through second hand bookshops or antiquarian bookshops).

7 2) Scope: Institutions MoU on out of commerce works: publicly accessible cultural institutions as contained within Art 5.2 (c) of the European Union Directive 2001/29/EC1 Orphan Works Directive 2012/28/EU: Recital 1: Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States […] Recital 20: […] Public-service broadcasters should, for the purposes of this Directive, cover broadcasters with a public-service remit as conferred, defined and organised by each Member State.

8 3) Type of work and rights More complex! -Previously broadcast programmes -Un-broadcast footage (sports, news, interviews, social documentary…) -Cinematographic works (RAI) Rights in AV works: Producer rights + many underlying rights: music, published work, clip, images… Different clearance agreements in place (industry practice and national law)

9 4) Interaction with other practices -Question of national and cross-border effect -Acknowledgement of other approaches, e.g. Orphan Works Directive: Recital 24: This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representation or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation. 5) Result of collaborative dialogue Practical implementation: - Safeguards in any collective and extended collective licensing regimes - Refer to e.g. experiences of all stakeholders in Nordic countries involved in archive release activities

10 Annex 1a: Archive Rights Clearances: BBC-commissioned works BBC Commissioned Material Archive use on basis of: Individual clearance (under standard terms) Collective Agreement (no individual clearance) Collective Licensing Directors Actors Musicians Writers Live Music Performance Presenters Talks To create an effective licensing agreement the BBC needs the individual consent of 85,000 writers Actual basis for archive use

11 Annex 1b: Archive Rights Clearances: Underlying Rights Existing Material Archive use on basis of: Individual clearance (under standard terms) Collective Agreement (no individual clearance) Collective Licensing Musical works Commercial sound recordings Artwork Photographs Published Literary and Dramatic works Acquired Film Sequences Sports Sequences Grand rights works There are thousands of sports clips in the BBC archive individually licensed from the major sports bodies