Creative Rights Alliance (CRA)—written evidence (CRF0014)

House of Lords Communications and Digital Committee inquiry “A creative future”

About the CRA

The CRA is a coalition of major trade associations, unions and creator led groups which exist to promote, protect and further the interests of creators through advocacy and campaigning, including fair contracts, pay, working conditions and intellectual property.

Our members and partner organisations represent more than 350,000 creators across the UK including authors of original literary, dramatic, musical and artistic works; photographers and illustrators, producers and principal directors of films; performers of literary, dramatic, musical and artistic works; designers of original designs and semiconductor topography; and compilers or creators of databases.

These organisations provide support, advice and advocacy on issues as diverse as pay, fair and simple contract terms, better working conditions and support, copyright enforcement, sustainability and equality, diversity and inclusion.

The CRA plays an important role in supporting and coordinating the work which these organisations do, by amplifying their calls for business equality and sharing their knowledge and expertise. The challenge is going to get harder over the next few years, which makes the CRA’s work more and more important.

Our members and partners include:

Association of Authors' Agents (AAA)
Association of British Science Writers (ABSW)
Association of Illustrators (AOI)
Association of Photographers (AOP)
Authors' Licensing and Collecting Society (ALCS)
British Association of Picture Libraries and Agencies (BAPLA)

British Institute of Professional Photography (BIPP)

Chartered Institute of Journalists (CIJ)
DACS (Design and Artists Copyright Society)
Directors UK
Equity
Garden Media Guild (GMG)
Incorporated Society of Musicians (ISM)
Ivors Academy
Music Managers’ Forum (MMF)
Musicians Union (MU)
National Union of Journalists (NUJ)
Outdoor Writers and Photographers Guild (OWPG)
Personal Managers' Association (PMA)
Producers and Composers of Applied Music (PCAM)

Professional Cartoonists' Organisation (PCO)
Society of Artists’ Agents (SAA)
Society of Authors (SoA)
Writers Guild of Great Britain (WGGB)

Submission

1.              Over the last two decades there have been huge changes in how audiences access creativity: TV and film are now accessed via the internet as well as ‘over the air’, reading takes place via tablets and e-readers as well as books, and traditionally live experiences such as theatre and music can be done via live or recorded streaming in one’s own home or at the cinema. With all this change there is little reason to assume that the next decade will be any less innovative.

A major change is that ‘platforms’ have become extremely powerful, taking the lead over more traditional broadcasters. Netflix and Disney+ dominate the consumption of television and film along with BBC iPlayer, All 4 and ITV Hub. We have changed from traditional linear ways to enjoy performance and music, when you had to be at a certain place at a certain time, to a more solitary, on-demand, “when you want to” experience.

The perception is that audiences have been empowered to experience creativity on their terms. In truth internet providers and platforms have a greater influence on what is accessible and by whom than we realise and with this they have more money and influence.

Note that for ease of distinction, when we write of ‘creators’, we speak in the main of authors of creative works, be they writers, photographers, illustrators, journalists or musicians, and not solely the wider creative workforce. Also note that responses may be repeated as they are relevant to several questions.

A third of people working in the creative industries are freelancers (33 per cent – around 2 million people). In some sections of the industry this proportion reaches 70 per cent. This is double the level of self-employment in the wider economy. (* Creative UK). Our creator freelancers are a key cornerstone of our economy, providing important creativity, knowledge and expertise.

The Covid pandemic has shown that the world can be turned on its head at any time and that some may be more impacted than others. On the whole though it is individuals - and in the creative industries that is the individual creator - who bear much more of the brunt of negative impacts on our industry.

The creative industries are ingenious enough to address most challenges that arise, with creative solutions and ideas to ensure ‘the show goes on’. But they all need to be supported fully by government and policy makers. The pandemic has also shone a light on the confusion within government and policy makers when it comes to understanding what and who makes up the creative sector.

There is the simple assumption that buildings, institutions, organisations, commissioners, broadcasters, and publishers are the creative industries. Although an important part, it must be noted that they are conduits for creativity, and seldom the actual people or places where creative work is made. They are platforms and spaces where creativity can be experienced, but individual creators provide the work and experiences that audiences and businesses are seeking. Creators transform concepts from those who commission them, like broadcasters, publishers, games houses or advertisers into musical, dramatic, educational, visual, and immersive creative reality.

Whatever changes and challenges are to come, there will always be those who will try to take advantage of the situation, to undermine the rights and earning resilience of creators to their own benefit. Creators’ ownership of their own work and intellectual property therein needs to be protected. Safeguards are needed to ensure fair pay and contractual terms for the creative work they produce.

In recent years there has been a growth in pirate websites allowing users to download copies of ebooks, films, games, and other creative content without the permission of the copyright holder. Research by the Intellectual Property Office in 2017 found that 17% of ebooks read online were pirated - around four million books.

Creators are so often disadvantaged when it comes to government support, business practices, or misuse of work by those who intend to undermine their IP rights. Creators must have rights, as without these protections there is no financial incentive or ability for our creators to provide the oxygen that feeds the creative blood of the UK’s globally respected creative industries.

It takes exceptional skill to take concepts; work through the many comments and feedback from commissioners, clients and so many other interested parties; and produce an amazing final product that broadcasters, publishers and other platforms can offer to their audiences.

The government must provide creators and the public with protections against work that is created via AI. AI manufactures works that are labelled as ‘creative’, although they may not in fact have any input from creators other than using their work as its basis without permission or recompense. 

"It’s astonishing and confounding to see the recent decision taken by government following the AI and IP consultation to extend the Text and Data Mining (TDM) copyright exception to include the commercial exploitation of creative works with a 'no contract override' obligation.

As a trade organisation representing professional photographers, we made clear the harm to visual creators if the most egregious option was selected. On initial reading of the decision, it seems that there is little recourse for creators to protect their copyright works from machine-to-machine data mining - which we believe to be particularly harmful to all image-makers. It appears to be a ‘one size fits all’ approach, showing a lack of understanding about the myriad of business models applied across different sectors and how we provide access to our creative works."

Isabelle Doran, CEO, Association of Photographers

A major challenge would be if the UK aligns itself with a country or territory whose IP regimes did not provide the same protections as our own. Without creators' rights to copyright protection over the works they create there is little incentive to invest in their own future careers, making it harder to have a long-term future as an ‘individual creative freelancer’.

The cost-of-living crisis will affect creators considerably as they already experience low pay and few protections. It will exclude those from minority backgrounds, particularly those from poorer areas, from embarking on a career in the creative industries. The work that has been carried out trying to address this imbalance will be badly affected, and those from different groups will be once again encouraged to take work in other non-creative industries and roles.

Involve creators more: as individuals, freelancers and micro businesses they are ideally placed to provide Government and policy makers with informed solutions and provide valuable input to aid responses to major challenges or changes on the horizon.

The CRA recommends the implementation of our Fair Contract Terms for Creators and #PayTheCreator campaigns which would go some way towards providing important protections to creators against current bad practices as well as future challenges.

Fair Contract Terms for Creators[1] highlights the seven areas of contract terms which need to be included in all contracts to protect all creators, including members of the public, when they sign a contract. These seven areas form the acronym CREATOR. They are all already in use elsewhere in the world, or mirror existing consumer protection rights. Legal protections are needed to ensure that creators work in an environment which is fair and ‘good’, and legislative recognition of fair terms in line with CREATOR would achieve this.

Clarity: Clear contracts, in written form, which transparently set out the exact scope of the rights granted (be they assigned or preferably licensed) and are negotiated promptly and transparently.

Remuneration: Fair Remuneration. Equitable and unwaivable remuneration for each use / exploitation of work, for example ‘bestseller clauses’ so that if a work does far better than expected the creator shares in its success even if copyright was assigned.

Exploitation: An obligation of Exploitation for each right acquired in the work. Also known as the Use-it-or-Lose-it Clause.

Accounting: Fair, understandable and comprehensive Accounting clauses.

Terms: Reasonable contract Terms (for example time limited) with regular reviews where appropriate, to take into account new forms of exploitation; underpinned by a reversion right where appropriate.

Ownership: Ownership of the intellectual property rights in the work should remain with its creator who should not be forced to assign these. Creators should be appropriately credited for all uses of their work (including metadata); the integrity of artistic works should be respected; and the Ownership and assertion of moral rights should be unwaivable.

Reasonable: All contracts should be subject to a general test of Reasonableness, including a list of defined clauses which are automatically deemed to be void. A general safeguarding provision should also be included which will regard as unfair any provision contrary to the requirement of good faith, or any provision that causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the author.

#PayTheCreator[2] calls for all creators to be:

• Paid for the work they do, and the rights they grant, on time and at a rate reflecting their skills and contributions
• Recognised for the contribution they make to the creative industries, the UK’s economy, and our wellbeing
• At the heart of government policy and decision-making processes

2.              A better understanding by businesses and the public of the rights and needs of creators throughout any changes, and of their importance in the creative ecosystem. They should be made fully aware of the cost in time, money and creativity of producing the creative works that they are enjoying.

Creators should understand their own rights, especially relating to copyright and intellectual property, its value, and how to exploit and protect it. This is very important knowledge, particularly as we live increasingly in a digital world where the lines between creation and consumption/experience are becoming ever more blurred. The government must commit to educating business and the public about copyright and IP legislation.

The National Curriculum should, at all Key Stages and in both the English and citizenship modules, instil in pupils an understanding of the artistic and commercial value of their own and others’ intellectual property rights.

3.              The government should implement all areas of the CRA Fair Contract Terms: CREATOR[3] and #PayTheCreator[4] campaigns, providing safeguards to all creators. See above.

As outlined in Creative UK’s Budget Priorities 2022: The government should reinstate the £270m Arts Premium as promised to invest in arts, music and sport in its 2019 manifesto.

It should maintain funding to BTEC qualifications for Creative Industries courses until T Levels are fully tested and in place. These play an important role in training and educating so many creative individuals. The view that T Levels give parity with A Levels illustrates a confusion that young people pick them for a journey to a degree. Most pick BTECs because they provide invaluable training to an end career, and not necessarily a degree.

We know that it is not just the ‘old school’ network that is proving a barrier to entry, but also working and pay practices and conditions which make long-term careers in our sectors sustainable only for those who have private financial means. It is well known that the creative sector underpays so other support is needed, including a fit for purpose benefits system.

The UK has a well-functioning and balanced copyright framework, which underpins the success of the creative industries. This framework, harmonised with the rest of Europe, must be maintained. Existing regulations that have been transposed into domestic law on copyright issues must continue to apply, and there must be no attempt to water down our copyright regime in future trade negotiations.

This requirement for the equitable remuneration of authors and other rightsholders is enshrined in global international law thanks to the World Trade Organisation’s Berne Convention and the TRIPS Agreement. It is an essential component of effective trade that fosters growth and innovation.

Support training for creatives on commercial, business and financial skills. Some of these are already available through representative bodies, and this work should be supported and funded. Review the laws that impact on self-employed workers, ensuring that creators are not penalised by benefits, tax or National Insurance rules.

Self-employed workers can claim tax relief for work-related training which ‘maintains or updates existing skills’. However, relief cannot be claimed for training which ‘introduces new skills’ which is what is needed to address changes to our industry. So-called 'umbrella companies' should be outlawed along with other forms of bogus self-employment.

The Impact of Covid-19 on DCMS sectors report recommended the formation of a ‘Creators Council’ for the Government to better engage with representatives of the creative and cultural workforce, which would boost confidence across the sector. As businesses in their own right - and there being no current Creator Council - creators should have a mechanism for their voices to be included and heard at the very heart of policy making which directly affects their livelihoods and working conditions. This could be achieved through the CRA.

Better relationships between the UK, its Government, and the EU and other international territories.

Representative bodies, trade associations, unions and groups should be recognised as a vital part of the creative industries, providing input on behalf of creative workers.

Maintain and increase support to our libraries, public museums, galleries and theatres so that all can have equal access to creativity, as well as to inspire the next generation of creative geniuses.

Support creative courses and further educational opportunities and stop talking down creativity and the arts. 

4.              Industry should implement all areas of the CRA Fair Contract Terms: CREATOR[5] and #PayTheCreator.[6]

Creators’ experience, knowledge and ideas can directly feed into discussions on issues affecting the sector. Creators need to have representation at all levels within the creative industries and not simply be the last port of call for the fulfilment of a creative concept. Many creative businesses within our sector do not directly employ creators, as they will be commissioned on a project-by-project basis. Without doubt the creative industries have some of our most entrepreneurial creative business minds in the sector; adding creators to discussions will help expand even further their representation, effectiveness and credibility, and the ability to react quickly to changes and challenges as they present themselves.

Many creators within the CRA member organisations represent our diverse workforce and experience first-hand the barriers that hinder access to careers, and to equality, diversity, and representation within the sector. Practices that negatively impact on individual creators should be legislated against.

Freelance creators, sole practitioners, and small and medium enterprises should be able to come together to lift the level at which they can have a say in policy, and be able to collectively bargain with commissioners and suppliers. Representative bodies, trade associations, unions and groups should be recognised as a vital part of the creative industries, providing input on behalf of creative workers.

5.              Innovation and research and development will play important roles in addressing any challenges, but it is important that creators are able to address these with their own solutions. Creators, especially those with technical roles - for example photographers and illustrators - are continually developing innovative ways to produce their best possible work. For example, special lighting rigs, or printing and imaging programmes, but as individuals it can be almost impossible to access R&D funding. By broadening the definition of R&D we can unlock the sector’s growth potential by utilising the amazing ingenuity of creators and their relationships with their creative art forms and audiences.

With these new innovations the government should enforce copyright laws and licensing as it is essential to incentivise innovation, encourage investment, and allow authors of creative works to protect and exploit their creations. otherwise there is little financial incentive to invest in their own future as an ‘individual creative freelancer’.

Creators are always finding innovative ways to strengthen the UK’s global competitiveness, remain resilient and achieve net zero. AdGreen in the advertising sector, and Albert in the film and television sectors, are examples of where creators and business have worked together to work to achieve net zero and drive change.

Creators’ incomes must be protected as they provide colossal inward investment, create new jobs, support the develop of emerging creators, and generate revenue for all regions of the UK.

6.              On the whole government strategies are inadequate and are devised with larger creative businesses and commissioners in mind. It is easier and simpler for government and funders to support institutions, buildings, and businesses rather than creators directly. More support for creators is badly needed, so that they are robust enough to address any challenges or major changes that come our way.

Covid 19 illustrated how little all departments of the government, especially the Treasury, understand the needs and unique working environment of creators and the creative sector. Creators are not like other freelance workers who are ‘in employment’ regularly. Some may work for short periods over a whole year, some may work continuously. What is needed is an understanding of these ways of working, and a benefits systems which understands this. A Creator Council would go some way to help with this lack of knowledge and understanding.

Also, free illegal downloads compete with legitimate sales and have the potential to impact markets, hit creators’ incomes, and harm long-term career prospects. However. The Creative Industries Sector Deal acknowledged the importance of tackling online piracy and commits to developing codes of practice or legislation. The Government should introduce legislation to block offending sites and introduce measures to enable swift and comprehensive action to be taken against serial offenders.

There should be support for organisations creating new initiatives to create legal secondary markets, for example Author Share.[7]

The government should re-consider the recommendations made in Matthew Taylor’s Good Work Review,[8] which were recently rejected, prioritising a full review of employment status and social security to help creators and the creative industries.

The education system has a vital role to play in ensuring that all pupils receive a creative education and are exposed to various forms of culture, to boost social mobility and widen the talent pool for the future.

Support libraries and cultural institutions at local and national levels, as they are an essential gateway to information, culture and imagination, and at times can be used to provide protections against environmental and financial events.

There should be non-political support of access to the creative industries for our young creative workforce.

The Government must also implement the recommendations of the CRA’s Fair Contract Terms for Creators[9] as well as the principles of #PayTheCreator.[10]

7.              UK writers, journalists, composers, translators, photographers and illustrators have less protection than in many other countries.

The AGESSA[11] scheme in France allows authors to receive benefits, such as sick pay and unemployment benefit, and income-reduced social security benefits, with publishers and other content users making contributions to the fund. France offers several benefits for cultural workers including the option of a work-based pension. A Basic Income for the Arts launched by the Irish Government[12] is a pilot scheme to support artists and creative workers. Similar schemes would have huge positive impact on creative workers in the UK.

In 2016 New York City introduced the Freelance Isn't Free Act,[13] designed to enhance the rights of freelance workers in New York such as journalists and authors. A similar law has been proposed for New York state. In February this year, Democratic New York state senator Andrew Gounardes and assembly member Harry Bronson introduced a new bill intended to “protect contract and freelance workers from wage theft by ensuring all freelancers receive appropriate contracts for their work, are paid in a timely manner, and have state support to recoup unpaid wages.”

As previously mentioned, the CRA in conjunction with other creator led organisations, has been calling for a similar law here in the UK with Fair Contract Terms for Creators.[14]

September 2022

9