The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Conclusion
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This thesis has conducted an analysis of how copyright adapted to the digital shift, and considered whether it is fit for purpose in the face of the changes wrought by the shift to digital on the copyright framework, finally concluding that it is indeed generally fit for purpose in the digital age.
This analysis looked at copyright from a number of different perspectives. It considered firstly the Anglophonic grey literature which called for copyright reform in the UK, Ireland, the EU, Australia, and the US, and the different degrees of reform which were suggested. It pointed out the almost universal declaration that there was difficulty licensing copyright material,1 especially with regard to small, individualised licensing agreements, and the difficulty of copyright use for innovative, small new businesses. Visible in both the British Hargreaves Review2 and the Irish report Modernising Copyright,3 innovation is a vital part of the modern economy, and essential to helping with economic recovery in the wake of the global crash. Thus, the reports advocated for both legislative improvement of exceptions to copyright and an improved licensing framework via the use of a digital copyright exchange (DCE).4 From the literature review, the dissertation acknowledged that there was a prevailing negative attitude visible in the grey literature with regard to how copyright adapted to digital. Thus, from this position, the thesis question was formed – is copyright fit for purpose for the digital age? Or had copyright, as an institution which developed first over three hundred years ago, been outpaced by technological innovation, and thus was it no longer adequate to serve the needs of the millions of content creators and consumers who relied on copyright to govern their everyday transactions and lives? In 2013-15, was copyright in need of overhaul? Was the copyright regime failing to support creative and profitable businesses in the way it had done in the past?
In order to consider this question fully, of course, a consideration of the historical development of copyright was essential. An understanding of how copyright operated in the 21st century must be preceded by an understanding of how it had reached that point, from its beginnings as,
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1 See, for example, the UK and Irish reviews, which both suggested establishing a Digital Copyright Exchange. Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’ (2011); Copyright Review Committee, ‘Modernising Copyright: The Report of the Copyright Review Committee’ (2013).
2 Hargreaves (n 1).
3 Copyright Review Committee (n 1).
4 In the UK, this has been partially implemented in the form of the Copyright Hub. Copyright Hub <http://www.copyrighthub.co.uk/> accessed 19 December 2015.
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essentially, a monopoly for the Stationers Company to control printing in the 18th century.5 Thus, the thesis considered the historical development of copyright, from the pre-legislative judgements regarding the permissibility of copying books,6 through the monopoly of printing,7 to the first example of statutory copyright in the form of the Statute of Anne.8 Naturally, that original copyright monopoly is almost unrecognisable in the current framework of international treaties, Conventions, Directives, and other legislative developments which have formed copyright as it stood in 2015. Nonetheless, the same idea of copyright which is framed in the United States Constitution can be relied upon even now in the 21st century as a succinct and still relevant declaration of the original purpose of American copyright which, of course, was essentially imported directly from English copyright.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.9
This copyright clause is an interesting one to consider, as it frames the debate about copyright succinctly – is the aim of copyright to promote science and useful arts (as is the focus in the US), or is it to allow creative people to make a living from their works (as emphasised in Europe)? Should copyright aim to promote financial and economic growth, or should it aim to make the sciences and the arts available to all? The answer, as with most questions, is not simply black or white, but rather a balancing act in which copyright plays a mediator role between ensuring adequate access to scientific and artistic works, while also ensuring that those who create them are motivated to do so through the provision of adequate remuneration and recognition for their works.10 This balance has come up time and time again throughout the thesis, and is the tightrope which copyright walks with every implementation and development of the copyright framework. Additionally, with the development of international standards of copyright, the UK agreed to adhere to international obligations from a number of sources, including the Berne
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5 Copyright Act 1709 (8 Ann c 21 or 8 Ann c 19) (Statute of Anne).
6 HJ Lawlor, ECR Armstrong and WM Lindsay, ‘The Cathach of St Columba’ (1916/17) 33 Proceedings of the Royal Irish Academy. Section C: Archaeology, Celtic Studies, History, Linguistics, Literature 241.
7 Robert C Hauhart, ‘The Origin and Development of the British and American Patent and Copyright Laws’ (1983) 5 Whittier L Rev 539.
8 Statute of Anne (n 5).
9 United States Constitution, Art 1, s 8, cl 8.
10 Abraham Drassinower, ‘From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law’ (2008) 34 Journal of Corporation Law 991.
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Convention,11 the WIPO Copyright Treaty,12 and a variety of European Copyright Directives.13 Thus, the actual probability of a wholesale reform of copyright for the UK is quite small – unless it wished to engage in the lengthy process of detaching itself from the variety of international agreements to which it is now a signatory party.14 Thus, copyright reform must come from within certain strictly defined boundaries, and it is also is likely that it must happen in agreement with other related territories – for example, European copyright reform would be equally applicable to all 28 EU Member States. Of course, this is not always mandatory – as can be seen with the InfoSoc exceptions,15 not all countries elected to implement the exceptions at first instance. Indeed, the UK elected not to apply the exceptions until 13 years after the Directive came into force, only doing so in 2014.
After considering the historical development of copyright through its three hundred year history, the thesis then moved on to consider some of the methods which have been used to improve copyright enforcement, especially with regard to consumer piracy, in response to the shift to digital. It considered firstly graduated response systems, from the first system in France (Hadopi),16 through to the voluntary system envisaged in the UK in 2015,17 although still awaiting implementation at the end of the research period. It took into account the difference between legislative and voluntary systems, and considered also the punitive systems which gradually developed into more educational systems, as evidenced by the American voluntary CAS.18
Although relatively little information is available on the number of final sanctions which were issued by punitive GR systems such as Hadopi and the New Zealand copyright tribunal,19 the chapter does look at the removal of powers from the Hadopi agency as a poor sign for the effectiveness of the system. It considers also the very small number of successful prosecutions which were issued by the New Zealand copyright tribunal in 2014 and concludes that in terms of pure monetary deterrence, the GR systems discussed in the chapter do very little in terms of
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11 Berne Convention for the Protection of Literary and Artistic Works (as amended).
12 WIPO Copyright Treaty 1996.
13 Most frequently mentioned throughout the thesis was the 2001 InfoSoc Directive, but it is by no means the only Directive which applies. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 (InfoSoc Directive).
14 With the ‘Brexit’ referendum result and the UK’s ensuing detachment from the European Union, this could well be the ideal time for considering drastic copyright reform.
15 InfoSoc Directive (n 13) Art 3.
16 See Chapter 3: A Legal Investigation of Copyright: Graduated Response, France.
17 See Chapter 3: A Legal Investigation of Copyright: Graduated Response, United Kingdom.
18 See Chapter 3: A Legal Investigation of Copyright: Graduated Response, United States.
19 See Chapter 3: A Legal Investigation of Copyright: Graduated Response, New Zealand.
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providing financial compensation for copyright piracy. However, what becomes clear over the course of the chapter is that the educational aspect of GR systems is one which gained more traction through the development of different international systems. Thus, in the newer systems such as the voluntary American CAS and CCUK, there is not a focus on punitive measures such as fines or cutting off internet access for persistent offenders, but instead a more educational approach, which focuses on redirecting consumers to legitimate avenues of content consumption.20 As can be seen from the numbers of subscribers to streaming services – with Netflix boasting 62 million members in mid-2015,21 and Spotify 60 million at the end of 201422 – consumers are willing to pay for content. Every subscriber to Netflix is required to pay, and while Spotify operates on a dual-layer subscription basis, a quarter of its subscribers are paid, showing that there is still a substantial user base there and willing to pay for content. It is simply that the shift in paradigm has resulted in a shift in consumer attitudes also, and thus content providers need to adapt to this.
The second of two closely related chapters, Chapter 4 also looked at copyright enforcement methods which arose online, but not those that focus on the end-user. Rather, it looked at the notice and takedown systems which were implemented in the Digital Millennium Copyright Act in the US in 1998,23 and the E-Commerce Directive24 in Europe. These systems allow content owners to send notices to OSPs, requesting that they take down infringing content from their sites. It can be implemented using an automated system in both jurisdictions, which has led to some abuses,25 but is also an efficient and effective way of issuing notices to request the removal of illegitimate content.
The onus of monitoring being on the right holder in order to request removal of their content has meant that several systems have been developed which take care of the monitoring for rights
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20 See generally, Chapter 3: A Legal Investigation of Copyright: Graduated Response.
21 Netflix, ‘Netflix to Announce Second-Quarter 2015 Financial Results’, (Press Release, 12 June 2015).
22 Stuart Dredge, ‘Spotify financial results show struggle to make streaming music viable’ (The Guardian, 11 May 2015) <http://www.theguardian.com/technology/2015/may/11/spotify-financial-results- streaming-music-profitable> accessed 16 October 2015.
23 Digital Millennium Copyright Act 1998, Pub L 105-304, 112 Stat 2860 (US).
24 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1.
25 Michael Piatek, Tadayoshi Kohno and Arvind Krishnamurthy, ‘Challenges and Directions for Monitoring P2P File Sharing Networks – or – Why My Printer Received a DMCA Takedown Notice’ (HotSec Conference, San Jose, 29 July 2008) <http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf> accessed 23 September 2015.
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holders. Thus, private businesses such as MarkMonitor26 have developed monitoring systems which seek out illegitimately hosted versions of copyright content and send notices on behalf of rights holders. Although there are many examples of these private companies which monitor on behalf of content owners, it is difficult to gain access to them, due to their private commercial nature. The Publishers Association (PA), a trade organisation which represents book, magazine and journal publishers in the UK, developed a similar monitoring system, known as the Copyright Infringement Portal,27 to which the author was able to gain access. Thus, from this, it can be seen that the work involved in monitoring and sending take down notices is greatly reduced by virtue of the shared system which is provided by the PA. This, and other private commercial systems allow rights holders to take advantage of the notice and takedown systems in place in both Europe and the US, and achieve the speedy removal of their content from illegitimate websites as well as search engine results, such as on Google.
The added benefit of monitoring systems such as the PA Copyright Infringement Portal is that they can then inform further actions against those online service providers which do not comply with notice and takedown requests. The second half of Chapter 4 discussed those actions, which take the form of blocking injunctions. It considers the development of blocking injunctions in several different jurisdictions, considering firstly the UK. Blocking injunctions require ISPs to block access to specific sites28 and were first used in the UK in Newzbin2.29 The chapter then analysed the implementation of an almost identical provision in the Irish copyright system,30 which occurred following a judgement31 which noted a lacuna in the law, in contravention of the European Directive32 which created the power. Such injunctions have not always been well- received, however, as the attempt to implement a similar system in the US showed – the global anti-SOPA protests33 in response to the suggested US legislation were an indication of the general opposition to the possibility of blocking injunctions. However, SOPA was much more widely-drawn than the UK and Irish equivalent measures. Finally, the turnaround in terms of blocking injunctions, and indeed ISP liability, in Australia was discussed. In 2012, Australian
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26 MarkMonitor <https://www.markmonitor.com/> accessed 19 December 2015.
27 Copyright Infringement Portal <http://copyrightinfringementportal.com> accessed 19 December 2015. 28 Copyright, Designs and Patents Act 1988 s 97A.
29 Twentieth Century Fox and others v British Telecommunications PLC [2011] EWHC 1981 (Ch).
30 Copyright and Related Rights Act 2000 (As Amended) s 40(5A) (Ireland).
31 EMI Records (Ireland) Ltd and others v UPC Communications Ireland Ltd [2010] IEHC 377.
32 InfoSoc Directive (n 13) Art 8(3).
33 Jenna Wortham, ‘Public Outcry over Antipiracy Bills Began as Grass-Roots Grumbling’ (The New York Times, 19 January 2012) <http://www.nytimes.com/2012/01/20/technology/public-outcry-over- antipiracy-bills-began-as-grass-roots-grumbling.html?pagewanted=1&ref=technology&_r=0> accessed 10 August 2015.
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jurisprudence was somewhat different to the norm in that it declined to find liability for ISPs for infringing actions on their networks.34 However, only three short years later, a provision which allowed for blocking injunctions was implemented into Australian law, a complete 180° turnaround.35 The use of blocking injunctions has been roundly accepted by UK copyright organisations, with over a hundred sites blocked in the first few years of use.36 Although book and publishing organisations were slow to take up this weapon in the arsenal against copyright theft, it was not long until they did so, with their first injunction being granted in a case taken by the PA in 2015.37 Blocking injunctions may not be the golden gun that they first appear to be – indeed, they have many weaknesses, and can generally be circumvented with relative ease38 – but they are an important tool which may act as a further deterrent to the casual pirate. Combined with the educational aspects of newer copyright promotion and protection systems, they could prove to be an important factor in pointing consumers toward legitimate content consumption.
The thesis then moved on to consider the real economic contribution of the copyright industries to the UK economy. The dissertation conducted an analysis of the economic contribution of the core copyright industries in 2010-2012. It did this by using the WIPO framework which was published in 2003.39 This framework allows a study conducted following these guidelines to then be compared with other WIPO countries,40 making for easy conclusions to be drawn about the relative size of the core copyright industries of the UK. Of course, this system is not fool-proof, nor is it used by all WIPO countries. Thus, it is important to remember that the results obtained from the WIPO Guidelines are inexact, and comparison with other WIPO-compliant reports is incomplete, as it takes into account only those countries which have produced their own reports.
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34 Roadshow Films Pty Ltd and others v iiNet Ltd [2012] HCA 16.
35 Copyright Act 1968 s 115A (Australia).
36 Darren Meale, ‘500 and Counting: websites blocked by order of UK courts’ (The IPKat, 29 July 2015) <http://ipkitten.blogspot.co.uk/2015/07/500-and-counting-websites-blocked-by.html> accessed 19 December 2015.
37 Publishers Association, ‘Publishers Win High Court Support in Fight Against Infringement’ (Press Release, 26 May 2015).
38 Ofcom, ‘“Site Blocking” to reduce online copyright infringement’ (2010) <http://stakeholders.ofcom.org.uk/binaries/internet/site-blocking.pdf> accessed 19 December 2015.
39 WIPO, ‘Guide on Surveying the Economic Contribution of the Copyright Industries’ (2003).
40 WIPO, ‘WIPO Studies on the Economic Contribution of the Copyright Industries’ (2014) <http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/economic_contribution_analy sis_2014.pdf> accessed 17 December 2015.
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For this reason, the second half of the chapter considered some of the other research which was conducted on the topic of the economic status of the copyright industries. It collected together a variety of research conducted by and on behalf of government bodies,41 as well as private research, and specific research which split the copyright industries by content type.42 From an analysis of this collected research, together with the WIPO-compliant study conducted in the first half of the chapter, a conclusion can be drawn that the copyright industries are still immensely profitable, not just for the UK, but also globally. Although some industries have struggled to adapt to the shift to digital,43 and indeed large legacy publishers have struggled especially,44 given time, they are finding new ways to shape their businesses to take advantage of digital publishing and business models, and are finding new ways to thrive. As well as this, nimble new digital-only start-ups are finding ways to take advantage of their lack of cumbersome legacy business, and adapting to the digital age with remarkable innovation.45 Thus, although copyright may cause some difficulties, especially with regard to the simplification of licensing, it is not throttling the creative industries, nor are they dying the death which is sometimes portrayed by reports such as the Hargreaves Review.46 In fact, according to the WIPO-compliant study conducted in the first half of this chapter, the core copyright industries were growing and contributing more to the UK economy each year. This fact is reflected also by the IPO’s Creative Industries Economic Estimates.47 Thus, it is important to note when considering change to copyright, that the copyright framework as it stood was helping to contribute billions of pounds to the UK GDP each year,48 and trillions globally.49 Thus, it is important to consider the impact that changes to copyright legislation or administration would have on this part of the UK economy – at the third largest employment
41 EPO, OHIM, ‘Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union, Industry-Level Analysis Report’ (2013) <http://www.ipo.gov.tt/uploads/documents/Intellectual_property_rights_intensive_industries_contrib ution_to_the_economic_performance_and_employment_in_the%20European_Union.pdf> accessed 11 January 2016.
42 Andra Leurdijk and others, ‘Statistical, ecosystems and competitiveness analysis of the media and content industries’ (2012); Jean Paul Simon and Giuditta de Prato, ‘Statistical, Ecosystems and Competitiveness Analysis of the Media and Content Industries: The Book Publishing Industry’ (2012). 43 Notably the newspaper industries: Leurdijk and others (n 42).
44 ibid.
45 ibid.
46 Hargreaves Review (n 1).
47 Department for Culture, Media and Sport, ‘Creative Industries Economic Estimates January 2014 Statistical Release’ (2014) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271008/Creative_Ind ustries_Economic_Estimates_-_January_2014.pdf> accessed 8 January 2016.
48 ibid.
49 EPO, OHIM (n 41).
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sector in the EU,50 it would be foolish to plough ahead and make changes which benefit the consumer without taking into account the immense contribution of the creative industries to the UK economy, and the livelihoods of the millions of people employed in the creative economy. Once again, it is clear that copyright is a delicate balancing act between the interests of all related parties, and any change should be very carefully considered.
The thesis then continued to consider the implications of the implementation of two of the Hargreaves exceptions – specifically the private copying51 and TDM exceptions.52 It looked firstly at their process for recommendation, in terms of submissions to the Hargreaves Review53 and the logical need for them as an exception, before looking at the rationale for implementing a copyright exception, as described in the Green Book54 – that is to say, that an exception should be implemented in the case of a complete market failure. Although this is arguably the case in terms of private copying, the chapter goes on to show that this is most definitely not the case with regard to TDM. The implementation of the TDM exception was relatively straightforward, but the same cannot be said for the private copying exception, which was quashed by judicial review55 in the year following its implementation. Chapter 6 also considered the wider call for a TDM exception which was visible at a European level,56 but uses the British example of the quashing of the private copying exception and the relative non-use of the TDM exception to caution against hasty implementation of a mandatory pan-European TDM exception. This case study of two Hargreaves exceptions can serve as an example for the wider copyright framework, in which it can be seen that in certain cases industry can find its own solution, given sufficient time. This is visible in the example of TDM, where PLS-surveyed publishers, on the whole, reported that they were not receiving TDM requests, due to the success of industry-supported
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50 Ernst and Young, ‘Creating Growth: Measuring cultural and creative markets in the EU’ (2014) <http://www.ey.com/Publication/vwLUAssets/Measuring_cultural_and_creative_markets_in_the_EU/$ FILE/Creating-Growth.pdf> accessed 30 November 2015, 10.
51 Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 SI 2014/2361. 52 Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 SI 2014/1372
53 Hargreaves Review (n 1).
54 HM Treasury, The Green Book: Appraisal and Evaluation in Central Government (2011).
55 BASCA v SofS (BIS) [2015] EWHC 2041 (Admin).
56 The Expert Group, ‘Standardisation in the area of innovation and technological development, notably in the field of Text and Data Mining’ (2014); Jean-Paul Traille, Jérôme de Meeûs d’Argenteuil and Amélie de Francquen, ‘Study on the legal framework of text and data mining (TDM)’ (2014) <http://ec.europa.eu/internal_market/copyright/docs/studies/1403_study2_en.pdf> accessed 12 January 2016; Julian Boulanger and others, ‘Assessing the economic impacts of adapting certain limitations and exceptions to copyright and related rights in the EU: Analysis of specific policy options’ (2014) <http://ec.europa.eu/internal_market/copyright/docs/studies/140623-limitations-economic-impacts- study_en.pdf> accessed 12 January 2016.
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initiatives such as PLSclear’s TDM engine and CrossRef.57 In cases where an exception is supported, the private copying exception serves as an example of the vital importance of sufficient impact assessment – the quashing of an exception less than twelve months after its implementation is the opposite of what legislators would have hoped for. The combination of the close study of these two exceptions allows for a clear picture of what should be considered when implementing new exceptions to copyright which account for difficulties which may arise with the shift to digital – while exceptions may sometimes be necessary, they should be carefully and tightly drafted, and should also take into account the potential consequences for both rights holders and consumers of creative content. Thus, once more, it is clear that copyright is a balancing act between the interests of all related parties. The Hargreaves exceptions show, however, that rushing into poorly thought-out exceptions is never a good idea, and may result in superfluous or indeed unworkable exceptions.
The final approach which the research takes with regard to the analysis of copyright is to take a closer look at not only the attitude of UK and European government toward copyright reform in the future, but also some of the initiatives which have arisen, given sufficient time, through the cooperation of industry, enforcement, rights holders, and indeed content users. After an analysis of the attitude of governments toward copyright,58 the chapter moved on to discuss some of the initiatives that are simplifying and improving copyright, while staying within the (admittedly lenient) bounds of the current copyright framework. OA,59 and related open knowledge movements, is one such example – the opening up of academic research is something which has been made possible through the shift to digital, and the cooperation of researchers, funders, and publishers alike. While it has certainly had its own issues, not least with predatory publishers and accusations of lowered standards of academic research,60 the unprecedented and unparalleled accessibility of scientific and academic research has been made possible through the cooperation of the relevant parties, supported by government, through its endorsement of the Finch Report.61
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57 Publishers Licensing Society, ‘Survey shows text and data mining supported by licensing not copyright exceptions’ (PLS News and Events, August 2015) <http://www.pls.org.uk/news-events/n-tdm- august-15/> accessed 18 October 2015.
58 See Chapter 7: Alternative Approaches To Copyright, Governmental Attitude to Copyright.
59 See Chapter 7: Alternative Approaches To Copyright: Open Access and Scholarly Publishing.
60 John Bohannon, ‘Who’s Afraid of Peer Review?’ (2013) 342 Science 60.
61 Working Group on Expanding Access to Published Research Findings, ‘Accessibility, sustainability, excellence: how to expand access to research publications’ (2012).
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Also of interest in this chapter is the UK Copyright Hub,62 a work in progress aiming to become a DCE which will simplify the process of small, single-use licensing which makes up the long tail of copyright transactions. Although this initiative is government-supported, and a certain amount of funding has been provided by the IPO, it is a private enterprise, supported by industry bodies, and is an example of cooperation of copyright industries on an unparalleled scale. The fact that the Copyright Hub exists at all is an example of the incredible results that are possible through the cooperation of industry and government – to suggest to anyone twenty years ago that it might be possible to go to a single place to obtain the correct licensing information, and also obtain a licence would have been a notion far outside the bounds of possibility. And yet, with the development and cooperation which has become a reality in the 21st century, the Copyright Hub is well on its way to being a fully-functional DCE. The recommendation of such an initiative is not unique to the UK, either – the Irish report Modernising Copyright63 lauded the idea, suggesting that an Irish DCE would be a similarly advantageous creation.
Another example of industry and establishment cooperation is the UK initiative Operation Creative, which aims to combat copyright infringement through squeezing the companies which profit from copyright infringement, rather than the end consumer. This ‘follow the money’ approach has been suggested by multiple stakeholders as being the most effective way of combatting copyright infringement – after the removal of power from Hadopi, the French government stated that it would be shifting its focus to those who benefit commercially from piracy,64 rather than the individual downloader or teenager in his or her bedroom. The cooperation of the City of London police, advertising bodies, and copyright industries allows for an initiative which is tackling copyright infringers by hitting the link in the chain which will suffer the most – if there is no financial incentive in copyright infringement, then it is less likely that businesses will be able to support the large-scale websites which enable downloading. This cooperative approach which targets the most vulnerable part of the supply chain is an important shift in the dynamics of copyright protection. Combined with the educational advocacy discussed earlier in Chapter 3, it paints a new picture of copyright enforcement: one which aims not to scare off the consumer by threatening them with removal of their internet or fines, but
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62 The Copyright Hub (n 4).
63 Copyright Review Committee (n 1).
64 Ministry for Culture and Communication, ‘Publication du décret supprimant la peine complémentaire de la suspension d’accès à Internet’ (Press Release, 9 July 2013) (French) <http://www.culturecommunication.gouv.fr/Presse/Communiques-de-presse/Publication-du-decret- supprimant-la-peine-complementaire-de-la-suspension-d-acces-a-Internet> accessed 19 December 2015.
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instead educates them about the effects of copyright piracy, the vital role that copyright plays in providing creative content, and targets instead the companies which are profiting from the infringement of copyright.
Throughout the thesis as a whole, a number of ideas become clear – first, that the draconian enforcement of copyright as an absolute, while it may be the ideal for rights holders, is not a feasible reality in the digital age – scales of the internet, the ease of sharing content, and the number of alternatives for obtaining illegitimate content make the rigid enforcement of copyright a losing battle, even if it is one on which content holders may wish to make their name.
Similarly, the wholesale opening up of copyright, removal of copyright, or indeed the implementation of excessive numbers of exceptions to copyright is in no way feasible, not only because of the numerous international agreements which govern UK copyright, but also because of the delicate balancing act which exists in terms of allowing content creators to protect their interests and motivate them to keep creating, while also ensuring that scientific and artistic endeavours are given sufficient exposure and distribution, and consumers are able to access the creative works. Because of the symbiotic nature of creative content – creators cannot be remunerated if nobody is consuming their works, but consumers cannot pay if works are inaccessible, or wrongly priced – copyright reform is forced also to walk that knife-edge of finding the balance which allows all those involved in copyright to flourish.
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Future Research
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Any doctoral thesis can cover only a select portion of a topic, given the restrictions of a single doctoral researcher. However, in the course of this research project, many aspects of copyright research have arisen which would merit further study, and would contribute greatly to the academic knowledge around copyright and the content industries in the future. It would not be possible to list all of the permutations of research which could arise from this project, so this concluding chapter will mention only a few of the most relevant.
Firstly, it would be worth noting that similar analyses of copyright could be conducted with a focus on differing content types. Music is frequently the topic of copyright publications, as can be seen through the evidence base referenced throughout this thesis. However, it would be interesting to replicate the music-related research for other content types, such as film and television, software, and videogames. It is important to note the essential differences between content types, and how the shift to digital and digital developments have affected those creative
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industries. The IPO’s online Copyright Infringement Tracker,65 for example, shows that while content consumption online was high for music (35%) and TV programmes (34%), it was significantly lower for books, computer software, and video games, which each were at 12%. The difference of almost three times more consumption of music would explain the bias of research towards the music and TV industries, naturally, but it is crucial to study the differences in how different industries have reacted to and are affected by the digital shift, and how changes to copyright law are likely to affect each industry separately.
In keeping with the theme of a fuller understanding of different types of copyright industry, a full WIPO-compliant study which offered an estimation of the whole of the copyright industries, rather than just the core copyright industries as offered in this thesis, would be a valuable direction to take copyright research. A robust and economically sound study which allows for comparison with those other countries which are conforming to the same guidelines would be an important factor in assessing the position of the UK with regard to its copyright industries. While one may assert that the UK is a world leader in terms of publishing and music industries, and has great advantages due to the high export value of English-language goods, it is essential that these assertions can be backed up by robust, economically sound, independently verifiable research, and thus a full WIPO-compliant study would be the ideal medium to base these assertions upon. However, this should be conducted in accordance with the revised WIPO guidelines which were released in 2015,66 in order to ensure maximum accuracy.
Blocking injunctions are considered in Chapter 4, but there is more research which could be conducted in this area – while prevention measures are mentioned in Article 8(3) InfoSoc,67 there is no specificity as to what form the measures must take. 2015 was a year of great activity with regard to blocking injunctions, with measures being discussed in many European countries. In November 2015, the German Bundesgerichthof granted a request for a blocking order from German collecting society GEMA against ISP Deutsche Telekom,68 but in the same
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65 Kantar Media Monitoring, ‘OCI Tracker Benchmark Study ‘Deep Dive’ Analysis Report’ (2013) <http://stakeholders.ofcom.org.uk/binaries/research/telecoms-research/online-copyright/deep- dive.pdf> accessed 25 November 2015.
66 WIPO, ‘Guide on Surveying the Economic Contribution of the Copyright Industries: 2015 Revised Edition’ (2015).
67 InfoSoc Directive (n 13) Art 8(3).
68 Mark Schweizer, ‘BGH on blocking injunctions: first go after the source’ (The IPKat, 30 November 2015) <http://ipkitten.blogspot.co.uk/2015/11/bgh-on-blocking-injunctions-first-go.html> accessed 1 December 2015.
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week, the Stockholm District Court denied a similar order against ISP B2.69 The question of blocking injunctions will continue to be an interesting one into and beyond 2016.
As mentioned in Chapter 7, copyright reform is one of the pillars of the Digital Single Market strategy, and with a consultation,70 a proposal for a draft Regulation,71 and a Communication72 on copyright all published in December of 2015, there is no doubt that there will be much movement in the European copyright sphere into 2016 and beyond. Adequate consideration of these developments is a vital area for future research.
Other areas of international copyright development which would merit further research and investigation would be international treaties and agreements which make changes to copyright functionality as part of the agreement. The Trans-Pacific Partnership (TPP),73 an international agreement between twelve countries, including the USA, Canada and Japan, concluded negotiations in November 2015, and contains many important provisions for copyright and digital policy. Examples of these include the extension of both Canadian and New Zealand copyright terms and the agreement not to implement the Canadian-style notice and notice system in other TPP countries74. Although the UK is not party to the TPP, and neither is Europe, it is an important agreement to study by virtue of its negotiators. Another, similar, agreement which has yet to be made publicly available is the Transatlantic Trade and Investment Partnership (TTIP), a proposed Free Trade agreement between the United States and the European Union.75 The agreement is expected to conclude in 2016, and includes a chapter specifically on intellectual property rights. Such an agreement would have to find a resolution to issues which differ between US and European copyright rules, including public performance and broadcasting rights – for example, radio performances in Europe accrue financial
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69 Eleonora Rosati, ‘Blocking orders across Europe: personality disorder or are the Swedes right?’ (The IPKat, 1 December 2015) <http://ipkitten.blogspot.co.uk/2015/12/blocking-orders-across-europe.html> accessed 1 December 2015.
70 Commission, ‘Have your say on the enforcement of intellectual property rights’ (European Commission, 9 December 2015) <http://ec.europa.eu/growth/tools- databases/newsroom/cf/itemdetail.cfm?item_id=8580> accessed 13 January 2016.
71 Commission, ‘Ensuring the cross-border portability of online content services in the internal market’ (Proposal for a Regulation) COM (2015) 627 final.
72 Commission, ‘Towards a modern, more European copyright framework’ (Communication) COM (2015) 626 final.
73 Office of the US Trade Representative, ‘The Trans-Pacific Partnership’ <https://ustr.gov/tpp/> accessed 19 December 2015.
74 Michael Geist, ‘Why the TPP is a Canadian Digital Policy Failure’ (MichaelGeist.ca, 18 November 2015) <http://www.michaelgeist.ca/2015/11/why-the-tpp-is-a-canadian-digital-policy-failure/> accessed 23 November 2015.
75 Commission, ‘In Focus: The Trans-Atlantic Trade Investment Partnership’ (European Commission: Trade) <http://ec.europa.eu/trade/policy/in-focus/ttip/> accessed 19 December 2015.
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compensation for the performer, whereas in the US compensation only accrues to the composer. Although the negotiations of the TTIP have been mostly in secret, some details have been released, including some negotiating documents and short summaries of each chapter.76 The TTIP will have many effects on trade between the US and the EU, and thus is worthy of study, but a specific study of the impacts on copyright and intellectual property rights would be an important step in the progression of understanding of copyright and how it operates internationally.
Returning to the UK alone, there are many areas of research which have been briefly touched upon in the thesis which would be hugely interesting and beneficial to consider. The Copyright Hub is still in its infancy, and as it promises to be a game-changer in terms of simplifying licensing, it will be an area ripe with potential research projects, on the impact of the Hub, the number of licences obtained through the Hub, the increase or decrease in infringing content with the advent of easier licensing, to name but a few. Further research on the Copyright Hub would also be beneficial for other countries which may follow suit in implementing a DCE, as it would be a basis upon which new DCEs could be developed, in order to improve the future offerings to simplify digital licensing.
The impact of the UK Hargreaves Exceptions should be researched more fully, especially with the calls for a wider TDM exception visible at a European Level. Specifically with regard to TDM, it would be both interesting and beneficial to do more research into the possibility of using TDM and copyright frameworks for analysing data which is not standard publishing offerings – for example patient data from the NHS. This would be an area which melds copyright law with data protection and privacy laws, as so often happens, and would be both interesting and beneficial to the general public and health services if a solution was to be found.
Further analysis of the adaptation of the publishing industry to the digital shift should be conducted at periodic intervals. Although this research project was an undertaking which attempted to analyse the adaptation of publishers to the digital shift, like any other research project, and especially given the rapid development of copyright in the five years of 2010-2015, new analyses will need to be conducted periodically to ensure that the industry is continuing to
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76 Commission, ‘Intellectual Property Rights (IPR) and Geographical Indications (GIs) in TTIP’ (2015) <http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153020.7%20IPR,%20GIs%202.pdf> accessed 23 November 2015.
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adapt to digital and not stagnating, or getting caught in old business models and old ways of thinking.
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Final Remarks
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There is no doubt that the increased profitability and innovation of copyright industries is something which would be advantageous for all parties involved, and greater access to creative works is made possible by the advent of digital, and thus copyright restrictions should follow suit and adapt to the new paradigms which they have to deal with. But to say that copyright alone is strangling innovation and is the single biggest obstacle to innovation is to look at the situation far too simplistically. In some circumstances, such as with individual licences, it is not copyright itself that is inhibiting innovation, but the bureaucracy and red tape involved in obtaining those licences. However, with the cooperation of industry and government, solutions can be developed which will ease the burden of obtaining small licences, without negatively affecting the interests of any party. The answer to the machine, as Charles Clark said, is in the machine.77 Cooperation between related parties is necessary in order to obtain and maintain the knife-edge balance which copyright must keep.
Thus, changes and reforms to copyright should be very carefully considered. Although certain aspects of copyright may not be entirely fit for purpose the solution to these copyright problems is not wholesale reform but carefully coordinated adaptation. Although it may take some time, industry solutions are possible, as is evidenced by the examples of PLSclear and PLSclear TDM, the PA Copyright Infringement Portal, CrossRef, and the future Copyright Hub. None of these initiatives have required legislative change, although some have had the support of government. Similarly, in terms of improving access to content, Open Access arose without the need for legislation, but rather through the coordinated support of interested parties, and will, with time, become an ever more important part of access to knowledge and open research. Equally, Operation Creative is seeing success in reducing amounts of consumer piracy through a combination of following the money and educating consumers about where to obtain legitimate content. This positive and cooperative nature is indicative of the future which lies ahead for copyright.
In returning to consider the epigraph from the introduction:
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77 Charles Clark, “The Answer to the Machine is in the Machine”: And Other Collected Writings (Institutt for Rettsinformatikk 2005).
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Only one thing is impossible for God: to find any sense in any copyright law on the planet.78
We can consider this from a different angle. Although Mark Twain decried any copyright law on the planet, this thesis has instead shown that in many cases, copyright is succeeding in supporting hugely profitable, innovative, creative, and interesting industries. Thus, in order to improve the operation of the creative industries, legislative reform is often not the answer. Industry-supported, rights holder-led, and government-backed initiatives can show great success in paving the way forward to improve copyright materials for generations to come. Where legislative reform is necessary – as indeed it always will be – then such reform should be implemented only after lengthy consultation on a solid base of evidence – not lobbynomics79 but solid academic submissions, robust economic forecasts, and verifiable impact assessments.
This thesis posed the question: ‘Is copyright fit for purpose?’ Throughout the course of this research, the author has shown that, on the whole, it is indeed fit for purpose, even in response to the digital shift. Copyright is succeeding in supporting a variety of interesting, innovative, creative, artistic, literary and developing industries. It is undeniable that there are some areas of copyright which are fit for change, but where this is necessary, such change should be undertaken with the utmost care and robust planning and forecasting, due to the delicate balance at play between related parties to the copyright debate. The copyright framework is not a static structure, and has always been subject to constant tweaking, updating, changing, and improving. There is no doubt that this will continue in the future – nobody can predict what new technologies will wreak havoc in the lives of rights holders and content users next, and copyright will have to adapt to deal with that. This thesis has shown, however, that all related parties in the copyright framework are capable of adapting to change, given sufficient time and incentive – it is in nobody’s interest to let the content industries die, and indeed such a thing is almost unthinkable. It is simply worth noting that the copyright framework is large, complex, and multi-faceted, and thus when change comes, it is never as speedy as the changes to technology which necessitate copyright’s adaptation.
Nonetheless, as this thesis has shown, copyright is largely fit for purpose, and will continue to be so in the future. Cooperation and balance are the key words which have cropped up again
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78 Mark Twain, ‘Mark Twain’s notebook’, 1902-1903.
79 Benjamin H Mitra-Kahn, ‘Copyright, Evidence and Lobbynomics: The World After the UK’s Hargreaves Review’ (2011) 8(2) Review of Economic Research on Copyright Issues 65.
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and again throughout this thesis, as the cornerstones of a thriving content creation economy, in the UK, Europe, and indeed around the world.