Breakthrough licence sends dangerous message: Copyright Board members

Last month, two members of the five-person Copyright Board, Justice William Vancise and Stephen Callary, published their disagreement with a decision to licence Breakthrough Entertainment’s use of excerpts from a book with an unlocatable author. Excerpts from the two members’ decision appear below. …From a legal perspective, Breakthrough should have sought permission to reproduce every work it copied, including those that ended on the cutting room floor. In practice, it is more probable that it sought licences only for those works that remained after the final editing process. As far as copyright owners are concerned, then, it would seem that Breakthrough’s conduct was acceptable. From a public policy perspective, however, the matter is not as simple. Issuing retroactive licences promotes certain valid objectives....If done properly and reasonably, it can encourage a culture in which copyright is acknowledged and respected: to an extent, the person who applies for a retroactive licence recognizes the importance of copyright and that should be encouraged. Also, issuing any licence promotes the dissemination of published works. Users who might simply have proceeded without provisions for royalties in the past are now provided with an incentive to make royalties available. Other public policy reasons militate against issuing retroactive licences. Issuing a licence deprives the copyright owner of the right to choose between agreeing to a price and seeking compensation for the violation of copyright that has already occurred. Once the licence is issued, the time within which the owner is entitled to collect royalties is set: it ends five years after the licence expires. Absent a licence, the owner can challenge a violation of copyright at any time, as long as it is within three years from the time he learns of the violation. Most importantly, a licence should not be issued simply so as to absolve an infringement of copyright, whether deliberate or unwitting….Industry practices, however ingrained, should be discouraged if they do not show respect for copyright, even denounced if they treat the rights of copyright owners casually. Finally, copyright owners should not lightly be deprived of the leverage they are given once their rights have been violated. …Should a licence be issued in the case at hand? We do not think so….First, the rights being asked for are not trivial. The application seeks the right to include the work into the program, to communicate, publicly perform, reproduce, sell or rent the program, to use the work to advertise the program, and to use the work in "behind the scenes" and "making of" books and productions connected with the program. This ought to attract a higher level of scrutiny. Second, this is a sophisticated applicant who should have initiated the process earlier. Breakthrough is a well-established television producer. Production of television programs usually extends over long time periods. Choices about which works might be used in the program no doubt were made some time ago. Yet, the applicant started looking for the copyright owner only three months ahead of time. Third, the applicant has not acted beyond reproach. The search for the copyright owner probably did not start until after protected uses had occurred. Believing that it needed the rights, Breakthrough nevertheless allowed History TV to broadcast the programs without having obtained the required permission; this in turn put History TV in an arguably delicate situation.

Breakthrough licence sends dangerous message: Copyright Board members

Broadcast | April 17, 2006

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