By Najma Rajah, Senior Economic Adviser, Policy and Strategy, BBC
Abstract: This article looks at some of the key challenges to the current copyright framework posed by the transition to digital technologies. It considers the impact that technological change has had on the ways in which broadcasters deliver content and the ways in which the audience access content and how digital technologies have redefined what creative content is. It reflects on the challenges that these changes pose for copyright law and contracting rights – particularly in terms of their impact on piracy within the television industry. The article concludes with a discussion of some potential solutions to these problems based on modifications to the existing copyright framework. For example, measures to permit the regulated use of orphan works which at present cannot be used without infringing copyright, provisions to allow certain collecting societies to set up extended collective licensing schemes, and reforms to the current Satellite and Cable Directive.
Copyright in the Digital Environment: a broadcaster’s view
It is very timely that that the Stationers’ Company has put together a report to commemorate the 300th anniversary of the Statute of Anne. Until recently debate about copyright policy had mainly been viewed as being the preserve of lawyers. However, the subject has recently emerged from the shadows to sit at the forefront of public policy, culminating in the recent discussions around the Digital Economy Bill. One of the reasons for this is the importance that copyright plays in fostering creativity, helping to incentivise the creation of new works by ensuring that authors are rewarded for their efforts.
Creativity is also central to the BBC mission to inform, educate and entertain. In the absence of a robust and flexible copyright regime, the BBC would be less able to create, use and exploit the rights required to broadcast over 23,000 network hours of television and 78,000 network hours of radio per year. Nor would it be in a position to make available such a wide range of content on its website, bbc.co.uk, which last year on average reached 26.6 million unique users each week.
Copyright and rights payments are highly significant to the BBC. The BBC is a major contributor to the UK creative industries, spending approximately £2.4 billion per annum on original content and £1billion of that is spent on rights. The programmes that the BBC commission cover a broad range of talent, contributors and underlying rights that shape and define the BBC’s output. Some individual programming (e.g. a major drama or documentary) can involve several hundred contributors. In 2007/08 the BBC issued 305,000 contracts to contributors for in-house programming alone and each week some 250,000 items of music are reported to the Music Collecting Societies.
The present UK copyright framework has largely served broadcasters and those involved in the content creation chain well, rewarding and recognising creative endeavour, whilst at the same time encouraging creativity and innovation. However, the world has moved on. The introduction of digital technology has heralded a fundamental change in the way consumers watch content; for instance Video on Demand services, such as the BBC iPlayer, have transformed audiences’ ability to access content when they want. At the same time, technological change has made it easier and quicker for consumers to create and copy content in ways that were not previously possible, giving rise to phenomena such as peer-to-peer file sharing and online streaming of channels.
Government, both at a UK and European level, has acknowledged that the current regime will need to evolve. In November 2009 the UK Intellectual Property Office (IPO) published ©the way ahead: a strategy for copyright in the digital age and in October 2009 the European Union (EU) published a reflection paper entitled Creative Content in a Single European Market: Challenges for the Future.
Key challenges in a digital age
There are some common themes across both documents. Both recognise the importance of copyright and the value of the creative industries more generally. A key objective of the IPO strategy is to ensure that the copyright system supports creativity and promotes investment and jobs. Similarly the EU reflection paper states that copyright is one of the cornerstones of Europe’s cultural heritage and of a culturally diverse and economically vibrant creative content sector.
Likewise both papers agree that technological changes have altered the way that broadcasters deliver and the way that consumers access content. Traditionally, television was broadcast using analogue signals, digital signals (terrestrial, cable and satellite) were introduced in the late 1990s, and now we are currently enjoying the ‘third age’ of distribution via mobile platforms and the internet.
But changes in distribution platforms have had implications for copyright. For example, in the old analogue world, a programme would be reused if it were repeated. In the new digital world, re-using content may require it to be available over the internet. And there are other instances of where transition from a analogue to a digital world has required a reinterpretation of the terms used in the context of copyright.
As well as giving multiple means of access, digital technologies have redefined what creative content actually is. In the past, programme-making involved studios and expensive cameras. Now it is possible to create videos at home and share copyright works across the world in seconds with friends and family. There are now almost limitless opportunities for both the use as well as distribution of creative content.
These changes have created challenges for copyright law and contracting rights. The problem of piracy, in the past more associated with the film and the music industries, is growing increasingly more important in the television industry. The UK has been described as a world leader in TV piracy with 25% of all online piracy taking place here – partly because English is a global language. Television Against Piracy research put the total loss from piracy for the TV industry as £82 million in 2007.
Against this backdrop, it is perhaps not surprising that policy-makers have asked content creating industries to consider how the copyright framework could evolve to reflect these challenges.
Achieving a copyright framework for the digital age
The BBC believes that some of the proposals currently on policy-makers’ agenda represent useful steps in the right direction.
In particular, measures to allow for the introduction of extended licensing schemes will simplify rights clearance, particularly where broadcasters are seeking to make archive material available to the public on new platforms and services in the digital environment. These schemes will enable approved licensing bodies or ‘collecting societies’ to license works, not only where authorised by members of the collecting society but also where the copyright owners are not members (unless they have specifically vetoed the use of their works). This is the rationale behind statutory schemes which have been operating successfully in Denmark and other Nordic countries since the 1960’s and have facilitated the emergence of successful new catch-up, on-demand and archive services in Scandinavia.
In addition, proposed measures to permit the regulated use of orphan works – that is, those works for whom the rights holder cannot be found which, at present, cannot be used without infringing copyright – will allow a licensing body ‘or other person’ in future to license use of orphan works. If adopted, these changes will remove a significant barrier to public access to creative works. The BBC estimates that it has around 500,000 documents, 4 million photographs and approximately 1 million hours of broadcast footage in its archive. The BBC goes through a detailed process of trying to establish who owns the rights to all these items (including all the components that contribute to individual programmes), but inevitably that is not always possible to trace all authors. As a result, many cultural assets remain under lock and key because of the legal difficulties associated with using these works.
Taken together, these two proposals will greatly simplify rights clearance whilst at the same time ensuring that rights holders get a fair return for their creative endeavours. They will provide important benefits for broadcasters who, at the moment, need to clear individually for the archive most of the underlying rights included in their archive programmes for new services. In practice this involves the near impossible task of obtaining permission to use rights on a retrospective basis for scripts, performances, directors’ rights, music, film clips, sound recordings, photographs, fine art and other copyright works, all of which may have different owners for different types of use.
The European Union’s Reflection Paper also includes some helpful proposals – such as proposals to extend the Satellite and Cable Directive to other platforms. The 1993 Satellite and Cable (SATCAB) Directive has performed well, complementing the Television Without Frontiers Directive in delivering cross-border provision of television services insofar as this could be achieved under the technological and market conditions of the past 15 years. But its restricted focus on cable and satellite makes the SATCAB Directive outdated in the internet age. If the Directive and its underlying principles are to be future-proofed and deliver benefits to a post-2010 Europe, it must be modernised on the basis of technology- and platform-neutrality, and multi-territoriality. This will require two steps.
First, the regime established for cable retransmission could be extended to enable the simultaneous, unaltered and unabridged retransmission of broadcasts by third parties via any media platform. Therefore the non-cable platform operator, like the cable operator now, would need to clear the retransmission rights only with the originating broadcaster on the one hand and the collecting societies for the remaining rights on the other. This would significantly ease rights clearance for platforms such as mobile, satellite and IPTV, thereby creating a level playing field.
Second, the ‘country of origin of the transmission’ rule used for satellite could be extended to all audiovisual media communications on all platforms. For some time contractual arrangements would likely often continue to restrict content to individual member states on the basis of business needs and audience demand. But this modernisation of EU law would nonetheless encourage innovation in retransmission services and multi-territorial or EU-wide provision of content. As already highlighted, innovation is progressing very rapidly. Adapting the Cable and Satellite Directive would undoubtedly remove a disincentive to treating audiovisual distribution via the internet differently from traditional broadcasting, and encourage a multiplatform approach to distribution both globally and, by reflection, nationally.
Although the reforms listed above are based on changes to the existing copyright legislation, their impact on opening up access to licence fee funded content will be significant whilst at the same time ensuring that creators are rewarded. The BBC has an ambition to make more of its archive universally available over the internet over the next ten years, creating an engine for new public value – connecting audiences with the best of everything that the BBC has ever made. These reforms will be critical in enabling the BBC to achieve this ambition.
Najma Rajah, Senior Economic Adviser
Policy and Strategy, BBC
Najma has been working for the BBC since May 2007 as a Senior Economic Adviser in Policy and Strategy. During that time she has worked closely with colleagues responsible for negotiating with the talent unions, music collecting societies, photographic agencies, museums and galleries and organisations representing writers. Prior to working at the BBC, Najma worked as an economic consultant within the private sector and in the civil service.
 See Online piracy – downloading the facts, Mediatique (2009), http://www.mediatique.co.uk/reports/piracy.pdf