Fit for Change? Copyright for Publishers in the Digital Age

Aislinn O’Connell

January 2016

Centre for Publishing Department of Information Studies University College London

A thesis submitted for the degree of Doctor of Philosophy in University College London

1  I, Aislinn O’Connell, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis.

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The digital revolution was an almost unprecedented shift in the way humans communicate and interact, bringing with it ease of communication an

d 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.

Thanks are due to so many, it is difficult to know where to start!

To my supervisory team, Professor Iain Stevenson and The Rt Hon Professor Sir Robin Jacob, who were by turns my supervisors, best encouragement, and strictest critics, offering advice, support, commentary, and reassurance when needed. I could not have done this without your generosity of both time and expertise.

To the Stationers Foundation, who generously sponsored my PhD project, and the agencies behind it, thanks are due also – the PLS, CLA, NLA, Pearson, and Euromonitor. The support was more than just financial, and I was lucky to be able to draw on the knowledge, experience and expert advice of Sarah Faulder, Kevin Fitzgerald, Simon Juden, Tori Eva, David Pugh, Ian Locks, and Trevor Fenwick at every opportunity. This project would not exist without your aid.

To my friends, who were the source of much advice, encouragement, and recommendations, often in the form of chocolate – Kellie, Darren, Kyle, Rob, Mark, Kristi, Amber, Inga, and June – your reassurance and empathy (and provision of sweets) was invaluable.

To Ronan, who bore the brunt of my complaints in the final stages, allowed me to cry on him, and was generally wonderful, calming, steady, supportive, and an Oxford comma – I cannot thank you enough.

And finally to my parents and siblings, who provided everything from encouragement to a roof over my head, from proofreading services, to patiently acknowledging my complaints when I struggled – I am beyond lucky to have such a wonderful, supportive, loving family and could not ask for better.

Thank you. I could not have done this without you.

Table of Contents

ABSTRACT – 3


ACKNOWLEDGEMENTS – 4


TABLE OF CONTENTS – 5


TABLE OF FIGURES – 10


INTRODUCTION – 11

LEGAL FRAMEWORK – 24
LICENSING – 27
UNITED KINGDOM – 27
IRELAND – 31
EUROPE – 32
DIRECTION OF THESIS -33

CHAPTER 1: LITERATURE REVIEW – 34

INTRODUCTION – 34
UNITED KINGDOM – 36
IRELAND – 42
EUROPEAN UNION 46
AUSTRALIA 50
UNITED STATES  53
CONCLUSION 55

CHAPTER 2: A HISTORICAL INVESTIGATION OF COPYRIGHT 58

INTRODUCTION – 58
PRE-STATUTORY COPYRIGHT – 58
THE STATUTE OF ANNE 1709 – 63
THE BATTLE OF THE BOOKSELLERS – 64
GLOBAL COPYRIGHT DEVELOPMENT – 68
FRANCE – 68
THE UNITED STATES – 70
THE INTERNATIONAL STANDARDISATION OF COPYRIGHT LAW – 73
THE BERNE CONVENTION 1886 – 74
TRIPS AGREEMENT 1994 – 78
WIPO COPYRIGHT TREATY – 79
EUROPEAN UNION DIRECTIVES – 81
CONCLUSION – 84

CHAPTER 3: A LEGAL INVESTIGATION OF COPYRIGHT: GRADUATED RESPONSE – 87

INTRODUCTION – 87
GRADUATED RESPONSE -88
FRANCE – 90
NEW ZEALAND – 95
CANADA – 98
UNITED STATES – 101
IRELAND – 104
AUSTRALIA – 109
UNITED KINGDOM – 110
ANALYSIS – 115

CHAPTER 4: A LEGAL INVESTIGATION OF COPYRIGHT: BLOCKING INITIATIVES – 119

INTRODUCTION – 119
NOTICE AND TAKEDOWN – 120
BLOCKING INJUNCTIONS – 125
UNITED KINGDOM – 125
IRELAND – 128
UNITED STATES – 132
AUSTRALIA – 133
ANALYSIS  - 135
CONCLUSION – 137

CHAPTER 5: CORE COPYRIGHT AND THE UK ECONOMY –  141

INTRODUCTION – 141
WIPO GUIDELINES – 142
COPYRIGHT INDUSTRIES CLASSIFICATIONS – 144
RECOMMENDED FRAMEWORK OF THE STUDY – 147
FRAMEWORK OF THESIS STUDY – 149
RESULTS – 151
COMPARISONS TO OTHER COUNTRIES –  154
OTHER RESEARCH – 156
HARGREAVES IMPACT ASSESSMENTS AND OXFORD ECONOMICS REPORT  - 156
PRICEWATERHOUSE COOPER REPORTS 2011 AND 2012 – 157
STATISTICAL, ECOSYSTEMS AND COMPETITIVENESS ANALYSIS OF THE MEDIA AND CONTENT INDUSTRIES – 159
THE BOOK PUBLISHING INDUSTRY – 160
THE NEWSPAPER INDUSTRY-  161 RÜDIGER WISCHENBART-  162
PA STATISTICS YEARBOOK – 165
DCMS INDUSTRY ESTIMATES – 166
INTELLECTUAL PROPERTY RIGHTS INTENSIVE INDUSTRIES: CONTRIBUTION TO ECONOMIC PERFORMANCE AND EMPLOYMENT IN THE EUROPEAN UNION – 174
CREATING GROWTH: MEASURING CULTURAL AND CREATIVE MARKETS IN THE EU – 178
CONCLUSION – 179
STRENGTHS – 179
WEAKNESSES – 180
OPPORTUNITIES  - 180
THREATS  - 181

INTRODUCTION – 182
RATIONALE FOR EXCEPTIONS – 182
PRIVATE COPYING – 184
DEFINITION OF TDM – 186
CALL FOR EXCEPTION IN UK – 189
IMPLEMENTATION – 193
EFFECT SINCE IMPLEMENTATION -195
CALLS FOR WIDER EXCEPTION IN EUROPE – 198
CONCLUSION – 198

CHAPTER 7: ALTERNATIVE APPROACHES TO COPYRIGHT 213

INTRODUCTION – 213
GOVERNMENTAL ATTITUDE TO COPYRIGHT – 214
EUROPEAN UNION – 214
UK GOVERNMENT-  219
OPEN ACCESS AND SCHOLARLY PUBLISHING – 224
ADVERTISING INITIATIVES FOR INFRINGING WEBSITES – 235
CONCLUSION – 240

CONCLUSION – 245

FUTURE RESEARCH – 255
FINAL REMARKS – 259

INDEX – 262

LIST OF ABBREVIATIONS – 265

TABLE OF CASES – 269

AUSTRALIA – 269
CANADA-  269
EUROPE – 269
IRELAND – 270
UK – 270
US – 271

TABLE OF LEGISLATION – 273

UK STATUTES – 273
UK STATUTORY INSTRUMENTS – 273
OTHER TERRITORIES – 274
EU DIRECTIVES – 275
TREATIES, CONVENTIONS, AND AGREEMENTS – 276

BIBLIOGRAPHY – 277

BOOKS – 277
CONFERENCE PAPERS AND SPEECHES – 279
CONTRIBUTIONS TO EDITED COLLECTIONS – 281
CONSULTATIONS, REPORTS, REVIEWS, AND WORKING PAPERS – 282
EUROPEAN UNION DOCUMENTS – 291
COMMISSION DOCUMENTS – 291
OTHER EU DOCUMENTS – 293
JOURNAL ARTICLES – 294
PRESS RELEASES – 299
UK GOVERNMENT DOCUMENTS 300
WEB ARTICLES – 303
WEB PAGES – 317
WEBSITES – 323
OTHER SOURCES – 324

APPENDIX I: MASTER LIST OF UK SIC 2007 CODES – 325

Table of Figures

FIGURE 1: PERCENTAGE CONTRIBUTION TO GDP ……………………………………………………………………….. 152
FIGURE 2 PERCENTAGE OF GDP BY INDUSTRIAL CODES 2010-2012……………………………………………….153
FIGURE 3: CONTRIBUTION OF CORE COPYRIGHT INDUSTRIES TO GDP BY COUNTRY ………………………….. 154
FIGURE 4: CORE COPYRIGHT CONTRIBUTION TO GDP …………………………………………………………………. 155
FIGURE 5: EMPLOYMENT IN THE CREATIVE ECONOMY …………………………………………………………………..169
FIGURE 6: CHANGES IN GVA INDEXED TO 2009…………………………………………………………………………..170
FIGURE 7: GVA OF THE CREATIVE INDUSTRIES …………………………………………………………………………… 171
FIGURE 8: CONTRIBUTION OF CORE COPYRIGHT INDUSTRIES TO GDP BY INDUSTRY (WIPO) ……………….172
FIGURE 9: CONTRIBUTIONS TO GDP BY INDUSTRY (DCMS) ………………………………………………………….. 173
FIGURE 10: GDP AND EMPLOYMENT SHARES IN COPYRIGHT-INTENSIVE INDUSTRIES BY MEMBER STATE, 2010 ..176
FIGURE 11: ECONOMIC CONTRIBUTION OF CORE COPYRIGHT-INTENSIVE INDUSTRIES …………………………177
FIGURE 12: CONTRIBUTION TO THE EU ECONOMY OF CORE AND NON-CORE COPYRIGHT-INTENSIVE INDUSTRIES ….. 178