By Kevin Taylor, Director of Strategy and Intellectual Property, Cambridge University Press
Abstract: Copyright is entering a transitional phase, and there is much debate about its future role in the digital world. Practising publisher Kevin Taylor discusses the complex nature of copyright, arguing that changes must occur, but gradually. ‘Content’ (the author’s creative expression) is only one element of copyright, and numerous other kinds of value are in play in the complex chain of protection and exploitation that characterises the distribution of a copyrighted work. Increased threats from e-piracy and from technological innovators such as Google pose a challenge to publishers, who must think creatively about their own role in the chain and find ways of applying their traditional values in an altered environment.
Copyright in Practice: The Publisher Perspective
Copyright is facing more concerted challenges than in any of its previous three hundred years on the statute books; but copyright has never been simple, and calls for its modification must take account of the complexity of the ideas that have characterised its evolution over three centuries.
It has been said that copyright is actually two rights: the creative right of the author; and the further assertions and exploitations of that right by publishers and others in an extended value-chain. A tension lies in the very etymology of the word. The “copyright” belonging to the creator of a work is not in fact the “right to copy” as may be expected from the lexical formation, but rather the “right to grant the right to copy”. The actual “right to copy” is that which is acquired from the creator by a licensee. The creator – usually an author – grants to the licensee – usually a publisher – a contractual “right to copy” in consideration of certain terms and conditions. The publisher then sells on to its own customers a value-enhanced version of the copyrighted material in consideration of payment by the customer of the price of the book. The chain might extend further. If the customer is a library, it will pass lending rights on to its members; if the customer is a wholesaler or other intermediary it will sell the book on to a retail outlet; if the customer is a bookshop it will sell the book to an individual reader.
In each step of this chain of value-exchange, the first party has a different interest in the copyright to the second. As the owner of the work, the author is concerned to maximise the value of the creation – be that a monetary measure or a distributional one or a combination of the two. The publisher acquiring the work will want to pay for it as little as is compatible with maintaining good relations with the author. But then in the next step of the chain the roles change as the publisher becomes concerned to protect and exploit the copyright in the same ways that the author has in the previous step. At each step, value is added to the commodity.
A tension between protection and exploitation has always lain at the heart of copyright. Most authors want to ensure that their creation is properly valued while at the same time ensuring their work’s best possible distribution. Publishing is about the practical management of that tension, and copyright has provided the regulatory framework in which it plays out. How to distribute a book as effectively as possible while maximising the return? Over the years, publishers have evolved sophisticated models for getting this right.
The tension is more pronounced than ever in a world where technology is increasingly ‘problematising’ traditional chains of value. It is easy for an author to make his own work available on the internet; likewise for a pirate to copy a work electronically and mass-distribute it in e-form. I deal daily with authors who want both to post their work on their own free-to-access website and to earn the highest possible royalties from sales of the same work; authors who argue for the widest possible dissemination of their book while deploring its theft by pirates who distribute it widely but in devalued forms. It is understandable that authors should find themselves on the horns of a dilemma when technology both promotes and threatens their interests to such an unprecedented degree.
Technology is re-shaping the sphere in which traditional regulatory controls have operated; but calls for the radical modification or even abolition of those controls deny the complexity of the origin and history of copyright, the balance of tensions which have made it a successful form of regulation for so long, and the fact that those tensions continue to exist – arguably in heightened form – in a world dominated by technology. We recall that aspect of copyright which has its origins in the French Enlightenment and in the common-law rights pre-dating Queen Anne, arising from the creative need of the individual to communicate his or her ideas and to be identified as their owner. Challenges to copyright strike at the heart not only of publishers’ business models but at the very notion of authorship, and there are long-entrenched senses of literary proprietorship at stake as well as publishers’ balance sheets.
Open Access and the Creative Commons movement are often cited as a threat to traditional publishing, yet it is notable that such models do not fundamentally undermine copyright. Publishers can and do work constructively with concepts such as self-archiving, and are evolving new cost models that respect the desire of academics to have ready access to their own content. An author’s right to be credited and to retain control over the effects of his creative expression are built into these models.
The creative industries account for a huge proportion of the GDP of developed countries, and a rapidly increasing slice of the economies of the developing world. The investment in traditional configurations of author and publisher is too great, the vested interests too large, for change to occur overnight. One thing we have learned is that there are no tipping-points. The inertia in the system is too considerable to allow for radical change. Change must occur, as the music industry has discovered; but that industry did not collapse. The models are evolving and the regulatory environment subtly shifting; but people still make music and profit from doing so.
The same will be true of books. Perhaps the biggest recent threat to traditional copyright has come from Google’s mass-digitisation project; but it is telling that this has not precipitated any immediate momentous change. It has resulted instead in a highly complex Settlement proposal which shows evidence of all the tensions between protection and exploitation that have characterised copyright over the years, and which as I write is generating more confusion than consensus with no sign of imminent resolution.
It is likely that the Google Settlement will come to be regarded as one of those thresholds in the evolution of copyright on a par with long-running historic legal cases like Donaldson v. Beckett (1770s) – in which key distinctions were established between common-law and statutory aspects of copyright – and Jeffreys v. Boosey (1850s) – in which cross-border copyright was first clarified. In whatever form the Settlement is agreed, and even if it is not, it will have served as a catalyst to re-order the legislative landscape around copyright. We have known for years that the digital environment would entail a review of exceptions such as ‘fair use’, but it takes a forcible challenge to generate new thinking. Google’s claim that its wholesale copying and snippet-display of in-copyright materials constitutes fair use will remain unresolved, even if the Settlement is approved, and that challenge will undoubtedly recur, if not from Google then from another giant technological re-shaper of cultural norms. One of the objections to the Settlement is that as a Class Action it should be addressing historical wrongs rather than attempting (as it does through the proposed Book Rights Registry) to prescribe future models – but such prescription does not emerge in a vacuum, and if the challenge has arisen on this scale then something must be in need of change.
Copyright will survive. How then must it evolve and adapt? One way will be through greater standardisation. The expansion of digital communication and the globalisation of trade both work against a copyright law determined by national jurisdiction, and cross-border issues now loom large. Harmonisation of the term to 70 years post-mortem auctoris in the EU and US was a step towards international consistency, but there remain issues for publishers attempting to protect their copyright in places like India where cultural and economic attitudes towards what might constitute ‘fair use’ are bound to be very different. The legal issues raised by the Google Settlement call out for global solutions and yet are awkwardly limited to the US. Complicated and sometimes unresolvable jurisdictional challenges are posed by the prevalence of internet infringement. And the viability of the system of transnational bilateral agreements which has thus far sustained the activity of collective licensing societies is increasingly called into question. All of this must tend in the future toward greater convergence if rights are to be manageable in the digital world.
The ‘exceptions’ allowed under copyright law (including fair use) are rightly receiving close attention, and this is another area where change will occur. More robust definitions suited to an age of global electronic distribution are required, and legislators are likely to conduct a fundamental re-examination of the intent behind the Berne Convention’s ‘three-step test’.
‘Orphan works’ must be freed up. The proposals in the Google Settlement for dealing with what are there called ‘Unclaimed Works’ will again serve to force the issue, and has already catalysed an EU response in the form of ARROW (Accessible Registries of Rights Information and Orphan Works). Collective licensing is evolving rapidly, with some fillips from legislation such as the UK’s Digital Economy Bill. Meanwhile piracy is rampant and unstoppable – but then it always was.
The dispute between Google and rightsholders is not the first clash of powerful vested interests over intellectual property (and in the current context it might be apt to recall the long-running battles between the Stationers’ Company and the University Presses, who for significant periods of the seventeenth and eighteenth centuries vied to assert their different interpretations of copyright). Nor will it be the last. Yet critics of traditional publisher-driven models must note that raw content (the author’s creative expression) is only one part of the picture, and that numerous other kinds of value are in play in this complex chain of protection and exploitation.
It is undeniable that the role of the publisher is mutating from ‘content distributor’ to ‘service provider’. As technology makes the traditional ‘distribution of content’ function easier, publishers are freed to focus more attention on other aspects of the value they add, and the best will regard this as an opportunity rather than a threat. In the digital age the qualities of content selection, validation, authority, editorial input, design, sales and marketing, bibliographic metadata, format standards, and brand/imprint are no less important – indeed are arguably more important – than in the print world. The reconfiguration of these qualities within a framework of technological innovation is what now drives the missions of many publishers.
The music industry eventually discovered that the best way to preserve legitimate trade in copyrighted materials was not by reactively tackling infringement but by providing viable legal alternatives for customers wanting to download music electronically. The same principle applies to books, which is why publishers are so actively developing and experimenting with electronic channels-to-market. There will always be copyright infringement, but the majority of consumers will prefer legitimate services if these are attractively packaged, readily available and reasonably priced. Our challenge is to ensure that there will be a legitimate commercial e-space for the effective dissemination of copyright-protected materials that serves the best interests of authors while fulfilling the publisher’s mission to make work available through a value-adding chain of publication – just as we have always done in the print world.
As visionary US author and internet guru Clay Shirky remarked in an article for Publishers Weekly:
“As all media goes digital, the only real calamity that could befall publishers would be for them to abandon those [traditional] values.”
Three hundred years after the Act of Queen Anne, copyright faces some fundamental changes. It will however continue to provide a form of regulation that will underpin the activities of both authors and publishers in the digital world.
Kevin Taylor is Director of Strategy and Intellectual Property at Cambridge University Press, where he has global responsibility for all IP matters including contracts, rights administration, permissions, copyright policy and copyright protection. Previously, as publishing director in the humanities & social sciences group, he ran a team responsible for seven academic subject areas.
Kevin graduated from the University of Cambridge with a first class honours degree in English in 1984 and joined the Press a few days later. His other roles in the company have included senior commissioning editor (literature), editorial manager of reference publishing, and manager of the electronic publishing unit. He is meetings secretary to the University Press Syndicate.
In the UK publishing industry Kevin has served as a board director of the Copyright Licensing Agency, the Publishers Licensing Society, and the Academic & Professional Division of the Publishers Association. He has also written a best-selling historical guidebook, Central Cambridge: A Guide to the University and Colleges (second edition 2008); edited a University exhibition catalogue, Foundations for the Future (1995); and is the author of numerous articles and talks about publishing.