Fit for Change? Copyright for Publishers in the Digital Age – Dr. Aislinn O’Connell

The digital revolution was an almost unprecedented shift in the way humans communicate and interact, bringing with it ease of communication and sharing of copyright content. This thesis answers the question of whether copyright as it stands in the mid-2010s is still a valid bundle of rights to ensure that authors and creators maintain control over their creative works, while still allowing the sharing of creative works and ensuring the spread of knowledge. It approaches the question of copyright from several contexts – including the legal and enforcement mechanisms which have developed in response to the digital shift, and the rise of digital piracy, including graduated response, notice and takedown, and website blocking. A second approach is considering the economic and financial standpoint of the creative industries, particularly the publishing industries. It includes a survey into the economic contribution of the core copyright industries based on guidelines from the World Intellectual Property Organization, as well as assessing a variety of economic reports published in the early 2010s. From there, the thesis considers the case study of the UK text and data mining and private copying exceptions as examples of interventionist legislation which attempt to deal with the rise of digital. Finally, the thesis considers the implementation of shared, non-legislative initiatives which have attempted to approach copyright from different perspectives to the rigid approach of legislative intervention. The thesis concludes by suggesting that adaptation to new norms is possible without the need for extensive reform of copyright, provided that all parties involved are willing to take a flexible view of the change that digital has wrought upon the copyright landscape.

Tomorrow’s humanities: James Murdoch, News Corporation

It is a great honour for me to deliver the first annual lecture of the University College London Centre for Digital Humanities. I want to use this opportunity tonight, not only to celebrate the mission of the Centre, but also to reflect with you more widely on technology, culture and society.

I’d like tonight in particular to discuss the consequences for creativity of this digital world we now live and work in. To think about the implications of universal connectivity; of the instant distribution of content; and of an imbalance that exists between the humanities and technology.

The role of the creative industries in rebuilding the UK economy: Helen Alexander CBE, President CBI

As someone who has spent much of their career involved in publishing media, I believe strongly that publishing has a great future ahead of it, even if its appearance may be radically different as we adjust to the digital age.

I joined The Economist in 1985 as marketing manager, and spent a lot of time with the brand The Economist, internationally, in its consumer form, and with the EIU, the B2B arm, so I’ve been around since the emergence of digital delivery in our industry in the early 90s.

Publishing of all types constitute the largest of the creative industries, all of which have, I think, a considerable role to play in the rebuilding of our economy after the downturn. In this address I paint a picture of the shape different parts of the creative industries are in, and then ask what particular support or encouragement they might need to build on their position as one of the UK’s great internationally competitive success stories.

Copyright and the Information Explosion:  an Overview. Clive Bradley

The creative dilemma: Over the centuries, society has tried to find effective ways of rewarding its creative workers – writers, visual artists, composers, performers, film makers, broadcasters, designers, and the producers who develop creative works for the market – as deserving of proper return for the use of their talent, labour and investment, and to encourage them to make their output (‘works’) available to potential users for communal benefit.  In this way, one person’s creativity, knowledge, skill and investment foster new creativity, knowledge, skill and investment in creative works, the growth of human knowledge.  Copyright is the internationally accepted means of engineering this – a form of ‘intellectual property’, along with patents and trademarks.

The economic and social value of this output is immense, though insufficiently recognised.  It is estimated that, in the UK at the beginning of the 21st century, the creative industries, including publishing, broadcasting, music, film, design and software, contribute something of the order of £100bn to the UK economy annually – approaching 10% of total GDP.  They also offer the best prospect of any UK industry for future growth and have significant export markets – a world leader.

This enterprise has been thrown into sharp relief over the past 20 years by the emergence of sophisticated digital information technology and the Internet, creating vastly more powerful means of storing, accessing and copying creative works, enabling accurate and multiple copies of creative works to be made outside the control of their creators, providing substantial benefits in terms of access to information, but threatening both the ability of creators to obtain a fair return from their work and the viability of the systems which produce valuable creative works for the benefit of users.

Why copyright remains important: A perspective from a data publisher: Trevor Fenwick

Data publishing, where professional content is created, selected, collated and delivered as databases to professional and academic users has been a major adopter of digital technology.

Data publishers are now also business service providers and software applications designers. User agreements typically rely in the first instance on Copyright law to   protect that investment but increasingly contracts include user specific terms and conditions and licenses reflecting the bespoke nature of the relationship.  At the same time digitally enabled copying of music and audiovisual has led to pressure to recognise this through modifying existing copyright legislation.

Data publishers find themselves in a dilemma, on the one hand seeking additional protection for investment in database structures, content and delivery platforms yet on the other seeking to allow legitimate users access to and use of technical and professional information. New business models are emerging which reflect the dis-intermediating impact of digital technology on traditional intermediaries including publishers, bookseller and libraries.

Accentuate the positive aspects of copyright for the sake of future posterity. Andrew Yeates:

300 years after implementation of The Statute Anne, copyright is in the legislative spotlight at national, European Community and International levels with unprecedented intensity. Andrew Yeates argues the importance of accentuating the positive aspects of copyright within the debate, for the sake of future posterity.

Copyright exits for all. It is not exclusive. It is a simple premise to recognise the value of original creative work. Balancing the public interest in access to learning with the importance of innovation and progress will remain as important in the digital age as the early age of the printed word. Copyright is the key to this. It is a golden key that must not be melted down to the point where it is unable to unlock creativity for the future.

In 2010 is Copyright still able to protect and reward the creative heart of Europe? Angela Mills Wade, Executive Director, The European Publishers Council

She examines how the European Union has dealt with copyright over recent years and is now approaching the conflict between some who assume almost everything on the web should be available for free and those who create content and publish it without whom that content would not exist.

In what form should content now be communicated, how labelled and how protected from inappropriate exploitation? What business models can publishers adopt and how can the future of professional journalism be secured? When competition for readers online is so acute, how can publicly funded broadcasters and internet intermediaries be persuaded to compete fairly?

She offers some important principles on which future regulation and legislation may be based.

The Answer to the Machine. Bide/Wise

As we move further into the 21st Century, publishers should heed Charles Clark’s timely advice that “the answer to the machine is in the machine”.  It is not copyright as law that is the problem. Rather we need to embrace technology not only as a publishing medium but as the way to manage copyright on the internet.  There are a number of diverse projects pointing the way to this future but there is an urgent need to bring these together into a coherent rights management infrastructure to ensure the future of a vibrant and diverse copyright industry.

Other Men’s Flowers. David R Worlock

A sub-culture of illicit content re-use has always undermined legal protection of copyright . In the digital network that sub-culture becomes the dominant style of usage .Publishers need a new business model based on value added to content , and the network needs a framework of implied and actual licensing to allow users to behave as they are now empowered to behave .Ownership and the right to be named as the original source of content must be clear , but attempts to control re-use once content is introduced into the Open Web will simply bring the law further into disrepute

Collective Licensing: Responding to the challenges of the digital age. Kevin Fitzgerald

The future success of the UK economy is highly dependent on how intellectual property (IP) is managed both in the UK and globally.  The digitisation of content brings both great advantages in terms of access but also threats in terms of a sustainable economic model for creators and publishers.  In this article, Kevin Fitzgerald, the CEO of the UK’s Copyright Licensing Agency and Chairman of the European Union group for Reprographic Rights Organisations, explores how collective licensing has been responsive to market demands with the inclusion of digital-born, Smartboard , Virtual Learning Environment an website  content in its licences.  He also observes the importance of working closely with UK government to ensure a robust international legal framework for IP.  He works through the example of the UK education sector and concludes that collective licensing helps to balance the opportunities and threats of the digital age.

Do Libraries Dream of Electric Sheep? Lisbet Rausing

Imagine a New Alexandria. Imagine a library that contains the natural and social sciences of the West, peer-reviewed publications, archives, and collections.  It is electronic and in the public domain: stable, linked and searchable. New Alexandria demands an ethos of digital conservation, scholarship and public access.  It needs to be a long-term public good, hosted by reputable non-profit institutions, in stable jurisdictions. But it is technically possible. After all, Google Books aims for c. 16 million books, and the non-profit Internet Archive has c. 1 million volumes.

We live in the age of electronic reproduction. The technological future is certain, and it is created by scholars, entrepreneurs and amateurs, in a Schumpeterian process of creative destruction. Even our most traditional products of learning (monographs, academic articles, etc.) are dis-intermediating.  As marginal costs of replicas near zero, what constitutes an archive, a publisher, a bookseller, or a book, is all put in question. Things fly apart at the seams.

The question is not whether change is coming. It is who will be the change-makers.  This is not a challenge of technology or finances. It is not, even, a question of law, though copyright legislation is fiendishly destructive of the democratisation of scholarly knowledge. This challenges state-builders and gatekeepers: academics, librarians, foundation staff, politicians and civil servants. Can we build structures that will preserve and order, but also share and disseminate, the world’s learning and cultures? It is a challenge of will and imagination. Here, Lisbet Rausing discusses three such challenges: the cult of the artefact, the problem of abundance, and the question of the audience.

Copyright’s balancing act and the role of the library: Michael Heaney, Executive Secretary, the Bodleian Libraries of the University of Oxford

Michael Heaney, Executive Secretary, the Bodleian Libraries of the University of Oxford, argues that The copyright acts and legal deposit provisions have played a significant role in the development of the Bodleian since 1610. Over time libraries have taken on the task of being benevolent custodians of copyright works, and the library privilege provisions of the copyright acts recognise this. Queen Anne’s Statute dealt with both  the intellectual property and its material expression. From the invention of printing until the twentieth century the determining factor in the relation between the two has been the investment required in the means of production. The balance between them and the public good has been the subject of debate ever since. Starting with the invention of new media, travelling via the photocopier and continuing, but not ending, with digital media and the internet, the economic realities underpinning the means of production have changed. Where does the economic balance now lie, and where do libraries stand in the equation?

The Changing Role of Copyright: Roger Parry

Copyright Laws have evolved over time to reflect changes in technology and social attitudes. They were not needed before the widespread use of mechanical printing.  The legal power of copyright started in 1710 with the objective of “the encouragement of learning”. Before copyright the protection of authors was based in the high cost of making copies. Shakespeare never published the full text of his plays in his lifetime to protect his income.  When copyright has been ignored authors like Charles Dickens and Mark Twain were forced to rely on paid speaking tours to make money in countries where their works were printed without permission.  The extension of the protection of intellectual property to music, film and television has been slow and complex.  The development of digital media and the Web now needs a new legal regime without which there is a threat to the continued development of the creative arts.

When copyright does nor quite fit the bill new thinking is required: Laurence Kaye

The purpose of the EU Directive on the legal protection of databases of 11 March 1996 (the Database Directive), which has now been implemented by all member states, was to create a harmonised legal regime for the protection of databases in Europe.

It did this in two ways. First, by inventing a new right – the database right (also known as the ‘sui generis’ right) – to protect substantial investment made by database producers in obtaining, verifying and presenting database contents. Second, it harmonised the rules governing copyright in databases. Whereas the database right protects investment, database copyright only arises where the structure of the database, including the selection and arrangement of the database’s contents, meets a test of intellectual creativity on the part of the individuals who designed it. The database right has proven to be a useful tool in protecting valuable corporate data. But it has its critics too, who accuse it of potentially ‘locking up’ factual information. (In fact, it does not restrict the irregular use of insubstantial amounts). Furthermore, a number of decisions of the European Court of Justice have caste doubt over the true scope of the database right.

In my view, the database right has often been misunderstood.  Databases are ubiquitous in the digital world and the database right has an important role to play in protecting substantial investment in databases.

Enlightenment Now:  Is this the true age of enlightenment? Dominic  McGonigal, Director of Public Affairs, PPL

300 years ago, copyright was a radical concept. It generated disputes in the early days and has periodically inspired controversy ever since, culminating in the abolitionists of the dotcom boom. Ten years ago, the futurists were predicting the demise of copyright. But is copyright dead, or is this the coming of age for this concept, which still feels new after three centuries?

Certainly, the Digital Age has challenged the notion of ownership, when the entire music catalogue is now available, online, free and illegal. When consumers can circumvent normal rules and get everything free, what is the future for copyright? How can artists reap their just reward from their work?

The answer lies in the hidden business activities in the creative industries in the past few decades. Out of the limelight of the digital revolution, a range of licensing models have been developed to deal with the conflicting demands of ever increasing volumes coupled with simplicity and flexibility. The paradoxes are evident. Creative work is consumed more than ever, yet creators’ income is falling. Can licensing bridge this gap? Does copyright have a role in the Digital Age? Are we now living in the true Age of Enlightenment?

Copyright in the digital environment: a broadcaster’s Perspective: Najma Rajah, Senior Economic Adviser, Public Policy, BBC

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 Practice: The Publisher Perspective:  Kevin Taylor, Director of Strategy and Intellectual Property, Cambridge University Press

As we move further into the 21st Century, publishers should heed Charles Clark’s timely advice that “the answer to the machine is in the machine”.  It is not copyright as law that is the problem. Rather we need to embrace technology not only as a publishing medium but as the way to manage copyright on the internet.  There are a number of diverse projects pointing the way to this future but there is an urgent need to bring these together into a coherent rights management infrastructure to ensure the future of a vibrant and diverse copyright industry.

Can government meet the challenges of balancing effective copyright protection in the digital age against the needs of users?: Judith Sullivan

This paper draws on about 20 years, on and off, in copyright policy making for the UK Government, but I have tried to use that experience to look at the future rather than just dwell on the past.  Indeed, I am not at liberty to talk freely about the past, but I will mention a couple of things that are common knowledge to illustrate the type of frustrations that policy makers surely still face.

Happy Birthday to Copyright: Simon Juden, Chief Executive, Publishers Association

The UK’s economy used to be predicated on manufacturing.  Then it was predicated on services, in particular financial services.  Now and going forward, most commentators agree that the Knowledge Economy is of critical and central importance to the UK.  The publishing industry is the lifeblood of that Knowledge Economy, not only through the dissemination of knowledge but also indirectly through support of the academic infrastructure as well as driving social change and social mobility. All of that value – and indeed 8% of UK Plc – is predicated on copyright.

Technology is blurring boundaries between what have hitherto felt like very different businesses and sets of rights.  New business models are emerging and new players are bringing disruptive changes to the marketplace. Copyright has always evolved to meet changing realities and no-one can be in any doubt that further evolution to fit tomorrow’s markets will – indeed, must – follow.

At its heart, copyright gives creators ownership of their work and investors confidence in realising a return if what they risk money on works.  These two core principles must remain sacrosanct if the UK is to continue creating (and exporting) the high value content so valuable in social, scientific, cultural, educational and economic terms.

Copyright through the Looking-glass: Tom Rivers

Developments in computer and communications technology have put into the hands of ordinary people the means to join in a global interchange of information, ideas and forms of expression.The problem of piracy in the digital environment can be addressed to some extent by technological means. Governments in western Europe have also taken legislative initiatives to impose some obligations on access providers.

Enforcement is made problematic because piracy is multi-territorial and therefore needs multilateral solutions. Developing countries are pursuing a different agenda at WIPO which is more focussed on exceptions and limitations than on updating rights or enforcement.New business models squeeze the share going to rightsowners in the value chain.

The ideological issues relate to the control exercised by state and other authorities over the publication of dissenting material.  There is a tension, reflected in the US law, between free speech and the Copyright Clause.Large countries are likely to want to continue to provide protection for the intellectual productions of their own citizens.

Why Copyright is still important after 300 years: Professor Iain Stevenson, UCL

This article argues that copyright is even more important  today than it was 300 year ago.  The principles introduced by the statute of Anne of property rights in creative works being vested in the creator and those rights having an exclusive duration to protect their exploitation remain fundamental in the digital age.   As creativity is challenged by those who would replace an orderly and fair intellectual property regime with a free for all it is essential for copyright to be defended and strengthened.   Not everything about the current legislative framework is however essential and the article proposes some amendments and changes to duration and the treatment of orphan works.

Is Queen Anne’s Statute relevant to Twitter? By John Howkins, author of The Creative Economy

It’s odd to suggest a 300 year-old statute may be relevant today and doubly so in media markets where regulations change every few years. But imagine the next stage of Twitter where tweets can include sounds and pictures, and the next stage of the Internet where Google can search for objects as well as words.  We need some principles to make sense of this and provide a solid basis for laws and commercial contracts. Most policy-makers would admit, if only in private, that governments lack a ready framework for understanding what is happening, and lack also in-house expertise. Information and media industries do not have an equivalent body of professional expertise or research theory that informs other areas of public policy such as agriculture, education, construction, manufacturing, defence and trade.  One of the most exciting challenges of the future is how they will generate it.  Until then, the six principles of the 1710 Statute are a good place to start.

An act for the encouragement of … enforcement: Roderick Kirwan, Partner at Denton Wilde Sapte

The world’s first copyright law was passed in 1710 as “an act for the Encouragement of Learning”. The Digital Economy Act 2010[1] (DEA) became law on the final day of the 2009-10 parliamentary session, and is intended to update enforcement of copyright in an online world.

The DEA was steered through the Houses of Commons and Lords by Ben Bradshaw (Secretary of State for Culture, Media and Sport) and Lord Mandelson (Secretary of State for Business, Innovation & Skills) respectively. The DEA implements some of the policy aims set out in Lord Carters’ Digital Britain Report[2], including in new provisions designed to enhance copyright protection against illegal file-sharing and on-line piracy. This article explains the key anti-piracy provisions of the DEA and considers its impact for content owners, internet service providers and individual internet users.