Accentuate the positive aspects

of copyright

for the sake of future posterity

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By Andrew Yeates

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Accentuate the positive aspects of copyright for the sake of future posterity.

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On 10 April 1710, The Statute of Anne entered into force within Britain. The long title describes the legislation as “An Act for the Encouragement of Learning, by vesting the copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”. Encouragement and learning: good positive pillars upon which to build part of the legal system which has become an increasingly important and relevant part of the lives of everyone.

300 years on, it is a challenge for creators and for government to ensure that the public as a whole understand why copyright is important, and how it helps to enrich the lives of all. We must accentuate the positive aspects of copyright for all.

From 1710, the British system for recognition of copyright was adopted throughout the British dominions and provided the basis for British participation in debates which have subsequently led to the adoption of international copyright treaties in countries around the globe.

Copyright has now supported and helped to promote and protect creativity and innovation for the last three centuries. Creative industries have been identified and promoted by Government as an increasingly significant economic and cultural success story.

At international level this economic significance has been acknowledged by the conclusion of the TRIPS Agreement[1] within the framework of the World Trade Organisation.

Within the United Kingdom, technological developments touch on the lives of ordinary people in increasingly diverse ways. The creative industries are often at the forefront of technological change. They encourage people to “try out” new technologies which support the entertainment, education and information developed and distributed by creators, artists and performers. This is one of the many reasons why the creative industries are increasingly acknowledged by Government as a  vital part of the United Kingdom economy.

This recognition  is summed up well within the Executive Summary of the paper © the way ahead: A Copyright Strategy for the Digital Age 2009 published at the end of last year by the Intellectual Property Office and BIS (Department for Business Innovation and Skills). The paper states “The last 300 years have seen an unprecedented explosion in the cultural, scientific and historical material available to scholars, business people and private citizen. Financial and societal rewards to creators and investors have helped continue to fuel the engine of creativity. Copyright has been in the background of much of this activity.”

Yet, despite this economic and cultural success, technology is being used by some to challenge the validity of copyright. Technology (particularly new forms of digital electronic communication) now enables people to access copyright works more easily and quickly than ever before. The possibility of easy access is far too often used as a reason for seeking to reduce, or “do away with”, the exclusive rights of authors and creators in the name of “copyright reform”.

Instead of looking at the positive ways in which copyright works are being licensed and the benefits of the entertainment, education and dissemination of information resulting from the hard work and investment of creative people; recognition for the source of this value to society is being replaced by claims of “rights” to use the work of others without regard to entitlement to reward.

Recent debates over new systems to help address the damage caused to creators by unauthorised online file sharing of copies of works have thrown up claims that unauthorised users have somehow had their human rights abused if an owner of copyright takes steps to prevent unauthorised use of their work.

Those who profit from taking and using the works of others without consent shout that they are being “persecuted” if they receive notices explaining that their unauthorised use of films, sound recordings and other copyright work, is illegal.

As we start the fourth century after the Statute of Anne, steps must be taken to put such claims into genuinely creative perspective. There are many ways in which this can be done. Consider a few examples:-

To accentuate the positive aspects of copyright people must understand that copyright exists for all.

Recently it has been suggested that, simply because many individuals who write blogs, exchange photographs that they have taken, pass on copies of music that they have adapted, and otherwise distribute original works that they have created, are primarily  interested in communication to others, such “authors” do not need copyright.

Why not? Since when did every creative work proved to have value for others in the longer term realise such value at the moment of creation?

If a person chooses not to “assert” copyright in their work, what benefit results to creators as a whole if such work does not attract the rights that “professionally” developed work attracts?

Creating new barriers for a creator to establish “professional status” or “commercial intent” before being entitled to authorise use of rights in their work, based upon the principles of copyright, will not encourage creativity and innovation in the future.

Instead it will create a division within society that will ultimately make copyright more “exclusive” rather than copyright works being made more available through transparent licensing regimes.

User-created content may be playing a new role in the digital world. However it must be wrong to deprive the creators of such work with the freedom to choose whether or not to assign, waive or exercise the copyright that exists in new work.

Taking a positive approach, if all new work starts with the same rights, owners can make their own choices over how to deal with their rights.

The copyright framework must be able to distinguish the subsections of “the public” which might claim the benefits of copyright exceptions and limitations from “the public” who are potential “consumers” or licensed users of copyright works.

 

It is vital that copyright exceptions remain exception and do not become “the norm”. Limitations limit application of rights. They must not dictate their application.

It must be right that exceptions to rights should only apply in special cases:-

• which do not conflict with the normal exploitation of the work or the subject matter; and

• which do not unreasonably prejudice the legitimate interests of the right    holder.

The three step test established by The Berne Convention, and subsequently recognised in other international treaties, is an effective flexible base against which to test the practical effect of exceptions linked to the use of new technologies.

If we abandon this test, we may abandon a basis for international consensus which has served us well for many years.

 

It is a myth that the underlying framework of copyright law is too complex. 

 

Obtaining copyright protection under the existing copyright system is very cheap and simple, with no barriers for anyone with creative skills. It is applicable regardless of knowledge and financial standing. Copyright in terms of its application to individual works is not complex.  New original work attracts copyright. This is something which society as a whole should seek to protect.

It is true that complexity arises when composite works are developed and marketed. Complexity also exists in establishing a need for certainty and fairness when introducing legislative exceptions to copyright, to prevent disproportionate detriment to those having their property rights restricted.

However these complexities have been addressed, and accommodated over three centuries. New works have been recognised and embraced as sound recordings were developed, films were made, broadcasting hit the airwaves and digital electronic transmission systems became a reality.

Digital is not so different that you need to tear up the copyright rulebook.

The law of copyright has proved itself to be flexible in accommodating new technology. However, many now claim that digital “is different” in a way that demands a new copyright regime, without any real evidence of market failure.

In reality, copyright licensing can and does support myriad uses of copyright works. Broad changes to the current finely balanced copyright regime could lead to a two tier system, whereby the reduced protection de facto applicable to digital use makes it less attractive than analogue or more traditional print use.

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Cannot this be the right positive approach for a digital age?

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Suggesting copyright should require registration as a condition for recognition is not compatible with promoting the creative industries and knowledge economy.

Work is needed to improve the ways in which copyright can be administered practically, economically and transparently. However, the framework for recognition of copyright, and the original work of all creators provides choices that need to be preserved to support administrative developments.

If we act positively to promote respect and accessibility for the work of creators, there must be no doubt that copyright will continue to serve communities around the world well for the next century, and beyond.

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Andrew Yeates

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Andrew Yeates is a media lawyer and business affairs specialist whose career has included senior in-house roles within the television, film, music and publishing sectors since qualifying as a solicitor in 1981. Andrew served as Chairman of the DCMS led Creative Exports Group from 2003 to 2008 and is now a member of the UKTI Creative Industries Advisory Board.

He was appointed as a member of the DCMS Legal Deposit Advisory Panel in September 2005 and was reappointed for a second term of four years from 1 September 2008 to 31 August 2012 in August 2008.  Andrew helped to set up The Educational Recording Agency in 1989 and served as Chairman from 1995 to 2004. Since then Andrew has continued working with the company as its General Counsel.

He has been Intellectual Property Adviser to PPA (Periodical Publishers Association) since 2004. Since April 2006 he has also worked as a consultant to Sheridans solicitors, dealing particularly on rights related issues for clients involved in film, television and online distribution, and as a consultant for British Equity Collecting Society. Andrew was appointed a Director of the British Copyright Council in September 2008.

Following qualifying as a solicitor Andrew joined Thames Television as Contracts Manager for Thames and its subsidiaries Thames Television International and Euston Films in 1981.

He left Thames in 1987 becoming Company Lawyer for Phonographic Performance Limited and then joining Channel 4 in 1988. He worked with Channel 4 in a number of roles during the next 11 years including as Head of Acquisitions and Business Affairs and finally for 4 years as Corporation Secretary and Head of Rights.

In 1999 he joined the BPI (the record industry trade association) initially as Director of Legal and Business Affairs and then as Director General of the BPI and a Director of Brit Awards Limited from 2000 to 2004.

Since leaving the BPI he has continued as a Governor and Director of the BRIT School.

 

[1] Agreement on trade-related aspects of Intellectual Property Rights 1994