A few questions answered.
Where works already distributed are used, such as copying sections of published books and magazines for use in coursework in educational establishments. Where it is impractical to license each copying event, a blanket license is issued to permit copying without copyright being infringed. These are rights granted on top of those rights granted by you or your representative which are primary rights.
What are Secondary Rights?
Primary Rights are those granted by you, or your representative, for the initial use of your images. This is usually referred to as a ‘Licence’. For the sake of clarity, these are primary licences.
Secondary Rights cover where a third party makes use of your images through copying of the original publication which was originally licensed through the primary licence.
For example, where teachers and students copy sections of publications for classwork, or businesses make copies for internal reference or for research. These are secondary uses of your work.
How are these secondary uses licensed?
A blanket licence is available from the relevant licensing authority where it is impractical to license individually. It would be impractical for example to try and license each student, or teacher, who copied pages from books in tens of thousands of educational establishments.
Who grants secondary licences?
The CLA (Copyright Licensing Agency) is the largest single licensing body in the UK, responsible for licensing of publications and related websites.
The NLA (Newspaper Licensing Agency) licenses businesses and media monitoring organisations (MMOs) for copying of magazines, and newspapers. You may know an MMO better as a clipping agency.
For TV, the Educational Recording Agency (ERA) licence enables schools, colleges and universities to make educational use of TV and Radio broadcasts.
Revenue also comes through reciprocal agreements with overseas collecting and licensing organisations.
What do the secondary licences cover?
Secondary licences cover limited copying, and use, of UK published books, magazines, journals and related websites, as well as UK produced TV broadcasts.
Copying limits are generally one chapter of a book, and one article from a periodical. These limits were extended, temporarily, for educational licences, to help with remote learning during the 2020 pandemic.
Use of any copies is limited and inward facing, and images cannot be used in isolation. Commercial uses such as public facing websites, social media or publications are prohibited. They can only be used as teaching aids, for internal presentations and for reference.
How do I protect my rights?
Secondary rights are a valuable source of revenue for creators and publishers. Just as your moral rights should be protected, so should you protect your secondary rights, before they are exploited by others. Make sure to secure your rights through awareness of the terms of any licensing agreements.
Who holds a secondary licence?
Secondary licences are not compulsory by law in the UK, however, any business or organisation who wishes to ensure that they are copyright compliant should purchase a secondary licence.
In terms of secondary licensing, Education is the most comprehensively covered sector. Almost 100% of the education organisations purchase a licence. All state schools are covered by a secondary licence through DfE (Department for Education); universities and private schools are licensed through their trade body whilst other private schools, together with language schools, are individually licensed by CLA and ERA.
Almost all central and local Government entities hold licences including the NHS. The legal, financial services and pharmaceutical business sectors are strong supporters of copyright and together with other varied business sectors are copyright compliant through these licences.
What is Collective Licensing?
Collective Licensing offers a simple, and cost effective, solution both for those who wish to copy from published materials without breaking the law, and for rights holders where direct licensing would be inefficient and unduly burdensome. A blanket licence allows users to copy from a broad range of repertoire in return for a licence fee. Royalties from the licence fee are paid to the rights holders whose images have been copied.
What is a Collecting Society?
Collecting Society is the commonly used name for a Collective Management Organisation or CMO. They collect and distribute secondary rights revenue on behalf of their members, who have given the CMO a mandate which gives authority to warrant that the licensing body has the right to allow copying of their works under their licences. This warranty ensures that the licence holder is copyright compliant. There are CMOs for all creators including musicians, authors, film makers and of course visual arts collecting societies we are discussing here.
What does a collecting society (CMO) do?
A CMO administers the copying rights of its members by overseeing the collective licensing of their rights by licensing organisations. This will include representing their interests in the development of collective licences. A CMO will also ensure that the licence fee revenue generated from collective licensing is allocated accurately and distributed efficiently to its members.
Who are CMOs answerable to?
First and foremost a CMO is answerable to its membership, whilst the IPO (Intellectual Property Office) is the regulator under law for collective licensing in the UK.
Transparency and choice are at the centre of the Regulations, and a CMO is required by law to publish on its website each year an audited Annual Transparency Report (ATR) which outlines its activities, compliance and finances for the year.
Can I opt out?
Yes, you can opt out of secondary licensing by notifying the relevant licensing body or collecting society. All titles that your work appears in will be removed from the scheme, collecting societies will be notified and you will not be eligible to join their schemes. Your works and the titles concerned will then be on a list of excluded titles.
How do we know what is copied?
A variety of data collection methods are used to record instances of copying by licence holders, with technology developments making the data both more accurate and more plentiful.
With licences being voluntary it is important that any data supply by licence holders is not punitive, hence the variety of collection methods suitable for those sectors, combined with increasing use of technology.
What is done with the data?
A 5-year data pool is kept by the CLA, who allocate licence revenue to titles in the data pool. When you make a claim through PICSEL, part of your claim is matched to this data pool and royalties from the licence fees will be allocated to you.
A publication title qualifies for allocation of royalties if it is a title that CLA represents. There are currently 30 million titles on their database.
There is recognition that not all titles are represented, and that not every instance of copying can be recorded. As a result, part of any distribution to rightsholders will cover titles not in the CLA repertoire.
Am I eligible to claim?
If you have had your work reproduced in any UK published book, magazine or journal you are eligible to claim. You are also eligible for TV revenue if your work has been used by BBC, ITV, C4 and selected other channels.
Each year you can claim for every book, magazine or journal ever published that contains your work.
For TV it is restricted to the broadcast in the year of your claim only even if it is a repeat from a previous year’s initial broadcast.
How do I claim?
You cannot claim directly through a licensing body like CLA. You must claim through a collecting society for visual artists, such as PICSEL, that is a member of the licensing body.
Can I claim from more than one collecting society (CMO)?
No, you cannot claim from more than one CMO for the same category of rights.
The reason for this exclusivity is that the CMO that holds your mandate, warrants that it can grant rights in your work to the licensing body, thereby making the licence holder copyright compliant. It would not work with more than one CMO holding a mandate from you, where one CMO might grant the rights and the other not.
This also prevents so-called double dipping, where the same rights are claimed for more than once.
My agency claims for me, can I claim on my own?
Yes, but you cannot claim for the same uses as this would be seen as double dipping. You cannot be paid twice for the same use.
What information do I need to provide in my claim?
As with claims of any description, the more data you can provide the better the outcome will be for you.
The absolute minimum to match your data to the data pool, beyond the title of the publication, is the ISBN for books, and the ISSN for magazines. These are all easily found if you have the title of the publication, the publisher and year of publication. We would recommend, that as a matter of course, you obtain these details when licensing your images.
How much could I earn?
This depends on several factors such as how much data you have, the relevance of that data, how many other people have claimed for the same title and how often the title has been copied.
It also depends on the distribution policy of your CMO. These vary, and you should choose carefully the CMO whose distribution policy you are happiest with.
Check CMO websites for distribution policies and figures.
How much does PICSEL pay out?
Allowing for the caveat above regarding data, in 2020 individual images earned anything from £0.01 to £2,300 and an individual rightsholder received between our minimum of £25 to £10,000.
PICSEL endeavours to pay out the full allocation wherever possible, less an administration fee. Although not a legal requirement, this approach on distribution, decided by PICSEL’s members, tries to ensure revenues follow rights wherever possible.
What do CMOs charge?
Membership is free to most CMOs. Some do charge a one-off, one-time, joining fee.
PICSEL do not charge a membership fee.
All CMOs do charge an administration fee, which varies between CMOs and should not be thought of as like for like.
