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Proposed revision of tariffs under ERA Licence Scheme with effect from 1 April 2009 |
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Background The first ERA Licence Scheme was set up in 1989. The Copyright, Designs and Patents Act 1988 (as amended) sets out the process by which the terms of the original Licence Scheme were certified by the Secretary of State 1. As a result of this a Statutory Instrument was passed to recognise the terms of the Licence Scheme.2 The Act also provides for variations of the scheme (including changes to the charges payable for licences) to be noted in the form of amendments to the relevant Statutory Instruments. Since 1990 a number of different Statutory Instruments governing the ERA Licence Scheme have been put in place. Most of these have acknowledged changes to licence tariffs (generally reflecting adjustments in the Retail Price Index). Some of the new Statutory Instruments have reflected changes to the rights falling within the scope of the Licence Scheme and/or the introduction of new members who have increased the scope of the repertoire covered by ERA Licences. Since 1 April 2008 new ERA Licences have been issued subject to the terms of two relevant Statutory Instruments :- (a) SI 2007 No.266 - The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Order 2007 and (b) SI 2008 No. 211 - The Copyright (Certification of Licensing for Educational Recording of Broadcasts) (Educational Recording Agency Limited) (Revocation and Amendment) Order 2008. These two Statutory Instruments set out the basis upon which The Educational Recording Agency Limited is currently operating a licence scheme certified for the purposes of section 35 and paragraph 6 of Schedule 2 to the Copyright, Designs and Patents Act 1988. 1 See s143 and paragraph 16 Schedule 2A Copyright, Designs and Patents Act 1988 2 The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts and Cable Programmes) (Educational Recording Agency Limited) Order 1990 (effective from 30 May 1990). In December 2006 The Gowers Review of Intellectual Property made the following recommendation to government :- "Recommendation 2. Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the Copyright, Designs and Patents Act 1988 (CDPA). ERA set out a number of suggestions for possible change to the scope of section 35 CDPA in its initial response to The Gowers Review. ERA then welcomed the subsequent consultation issued by the UK Intellectual Property Office in January 2008, seeking further views on possible options to follow up recommendations linked to The Gowers Review concerning the scope of copyright exceptions. Against the background of The Gowers Review ERA developed (in consultation with representatives of educational establishments) a supplementary licence called the ERA Plus Licence. The ERA Plus Licence was launched in 2007. Details of the ERA Plus Licence scheme can be found on the ERA website at www.era.org.uk It was initially expected that any changes to the scope of section 35 Copyright, Designs and Patents Act to emerge from the Gowers Review would be implemented during the course of 2008. However, delays in the consultation process following publication of Gowers recommendations, coupled with developments such as the publication of the European Commission Green Paper on Copyright in the Knowledge Economy (Brussels COM (2008) 466/3), now indicate that any recommendations for change to the scope of section 35 (having a bearing on the ERA certified licence scheme) will not take effect before 1 April 2009. The Members of ERA have therefore agreed that application be made for recertification of the current scheme to take into account an appropriate Retail Price Index adjustment for the purposes of annual tariffs to apply for Licences issued on or after 1 April 2009. 2. Requested adjustments. In view of the continued debate over possible changes to flow from the Gowers Review of Intellectual Property ( and therefore possible further changes to the terms of the scheme thereafter) , ERA has proposed a single adjustment to annual tariffs to take effect for Licences issued on or after 1 April 2009 (rather than a number of adjustments to apply from more than one specified date). This will result in amendment to paragraph 17 of the Schedule to the 2007 Order detailed below. In seeking the tariff adjustments reflected in the 2007 Order, ERA recognised that an adjustment to tariffs to reflect changes to RPI over the previous year could be implemented in two stages (partly from 1 April 2007 and partly from 1 April 2008). However, in practice this has meant that the total increase in tariffs over the last two years have fallen below full RPI adjustment. This "falling behind" has been considered by ERA members when instructing ERA to seek adjustments to the licence scheme to apply from 1 April 2009. 3. Appropriate RPI adjustment. In reaching a decision over the proposed increases to tariffs, the ERA members have considered RPI adjustments for the last 12 months for which data is available. Increases recorded for the last 3 months for which figures are available are:-
An upward trend is anticipated over the next six months. ERA has therefore looked at an average increase over the last six months for which figures are available (4.45%) and rounded this to a figure of 4.5% as a conservative estimate of the likely average to apply if increases from April 2008 to March 2009 are taken into account. This results in adjustment of the annual tariffs as follows:-
4. Resulting changes to paragraph 17 of the Schedule to SI 2007 No. 266. As a result of the above, application has been made for paragraph 17 of the licensing scheme set out in the Schedule to the 2007 Order to be substituted with the following provision with effect from 1 April 2009 :- 17. For Licences taking effect on or after 1st April 2009 the annual tariff shall be calculated on a full-time or full-time equivalent per head basis by category of student in an Educational Establishment:
Discounted rates may be negotiated at ERA's discretion to cover groups of Educational Establishments. Educational Recording Agency Limited New Premier House 150 Southampton Row London WC1B 5AL October 2008 |