The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Chapter 7: Alternative Approaches to Copyright
Beyond legislative solutions to copyright enforcement and simplifying copyright use, it is important to note the attitudes of content creators, content users, related parties in copyright, and also of government towards copyright. It is also worth pointing out the inherent flexibility of copyright, and its adaptability to new situations. Thus, this chapter looks firstly at some of the governmental attitudes towards copyright in late 2013-15 and considers the future regarding copyright reform. Following that, it considers some initiatives which show the inherent flexibility and possibility of the copyright framework, as well as discussing the cooperative initiative between industry and the City of London Police IP Crimes unit (PIPCU), known as Operation Creative.
By drawing on these diverse aspects of copyright enforcement and use, this chapter focuses on some of the possibilities which are achievable within the current copyright framework, without the need for extensive legislative reform. It shows the results that can be achieved when industry and enforcement are allowed to work together, and given sufficient time to adapt to new frameworks. It also highlights the creativity and adaptability of copyright creators, especially where existing frameworks are blocking access to, for example, scientific research.
Thus, what this chapter shows is both the policy attitudes which are visible at both a national and international level, and the possibilities and opportunities which are available through copyright as it currently stands. It concludes by offering a positive outlook as regards the future of copyright, that with some small tweaks, it can remain the effective, profitable, innovative and unique framework which has helped to guide, support, and remunerate content creators, content consumers, and other related interest groups for hundreds of years.
The digital shift changed how copyright works, especially published works, are accessed, distributed, and viewed, by researchers, consumers, businesses, and rights holders. The advent of digital was so rapid and all-encompassing that existing copyright and licensing structures were often unable to deal with it – prior distribution and licensing models were no longer appropriate to deal with the amounts of information created and exchanged through the internet every day.1 This difficulty, combined with a change in attitude regarding the value of
1 The amount of data available online is almost unimaginably huge. Each minute, 300 hours of footage are uploaded to YouTube, and less than 0.5% of all data is analysed. The potential is huge, and largely untapped. Bernard Marr, ‘Big Data: 20 Mind-Boggling Facts Everyone Must Read’ (Forbes, 30 September 2015) <http://www.forbes.com/sites/bernardmarr/2015/09/30/big-data-20-mind-boggling-facts- everyone-must-read/> accessed 18 December 2015.
content, led to complexities in the functioning of the digital copyright market in the early 21st century. The lack of free online availability of certain works, or the difficulty of legitimately obtaining them, led to a reluctance to engage with copyright works legally.2
This issue has been dealt with in many ways – the introduction of new legislation and enforcement mechanisms, as discussed in chapters three and four, as well as exceptions to copyright, as discussed in chapter six. This chapter considers some of the initiatives which have attempted to deal with the shift to digital in ways other than through blunt legislative instruments.
Governmental Attitude To Copyright
In order to understand the willingness or reluctance of governments to legislate (or otherwise) for new copyright provisions, it is important to consider both the actions and the declarations which are available to assess. We will consider first the attitude of the European Union bodies, the European Commission, the European Parliament, and the Court of Justice of the European Union (CJEU). It is only by considering these three arms of European governance that we can properly understand the development of copyright policy. This is followed by an assessment of the UK government’s attitudes toward copyright in the 2010-2015 Conservative/Liberal Democrat coalition, and then comparing this to the early days of the following government.
The European Commission of course played a part in the shaping of copyright law in the UK and in the EU. The movement towards harmonisation across the 28 European Member States had an impact on UK copyright law, leading to the implementation of, inter alia, different copyright terms,3 copyright exceptions,4 and database rights,5 through the application of several European Directives on copyright and related rights. As such, it is vitally important to understand the attitudes of the EU with regard to copyright. Thankfully, the Commission made
2 For a light-hearted look at this, try Matthew Inman, ‘I tried to watch Game of Thrones and this is what happened’ (webcomic) (The Oatmeal) <http://theoatmeal.com/comics/game_of_thrones> accessed 18 December 2015.
3 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights  OJ L372/12.
4 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  OJ L167/10 (InfoSoc Directive).
5 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases  OJ L77/20.
this abundantly clear in 2014-15, by making copyright a key part of its Digital Single Market Strategy (DSM Strategy).
In late 2013, the Commission launched a consultation on copyright, indicating its willingness to listen to suggestions from stakeholders.6 The consultation lasted four months, from December 2013 until March 2014, and received almost 10,000 submissions.7 In this time, an Impact Assessment (IA) was leaked, detailing four possible options for reforming the European copyright framework.8 The IA did not state which option was preferred, and was marked for updating with the responses to the consultation. After the consultation had closed, but before the Commission released its report detailing the content of the responses,9 a draft White Paper on copyright was leaked.10 This paper set out the ambitions of the Commission with regard to copyright, concentrating largely on cross-border portability, and clarifying areas which remain unclear, such as hyperlinking, education and research (including TDM), disability provisions, and user-generated content. It was described as not being particularly ambitious,11 and by the middle of July had been delayed until after the summer break.12 This was then further hampered by the 2014 European Parliament elections – a complete change of leadership resulted in difficulty maintaining any kind of momentum after the consultation. Thus, after the summer break, the White Paper did not reappear, and was eventually abandoned. This consultation and
6 Commission, ‘Copyright – Commission launches public consultation’ (Press Release, 5 December 2013) <http://europa.eu/rapid/press-release_IP-13-1213_en.htm?locale=en> accessed 18 December 2015.
7 Commission, ‘Public Consultation on the review of the EU copyright rules’ (2013) <http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm> accessed 13 January 2016.
8 Commission, ‘Draft Impact Assessment on the modernisation of the EU copyright acquis’ (2014) <http://statewatch.org/news/2014/may/eu-draft-impact-assessment-copyright-acquis.pdf> accessed 13 January 2016.
9 Commission, ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules’ (2014) <http://ec.europa.eu/internal_market/consultations/2013/copyright- rules/docs/contributions/consultation-report_en.pdf> accessed 21 December 2015.
10 Commission, ‘A Copyright Policy for Creativity and Innovation in the European Union’ (2014) (Draft) (White Paper) <https://dropbox.com/s/0xcflgrav01tqlb/White%20Paper%20%28internal%20draft%29%20%281%29.P DF> accessed 13 January 2016.
11 Eleonora Rosati, ‘SUPER KAT-EXCLUSIVE: here’s Commission’s draft White Paper on EU copyright’ (The IPKat, 23 June 2014) <http://ipkitten.blogspot.co.uk/2014/06/super-kat-exclusive-heres- commissions.html> accessed 11 January 2016; LIBER, ‘European Commission Thinks Again on Copyright White Paper’ (LIBER, 23 July 2014) <http://libereurope.eu/blog/2014/07/23/european-commission- thinks-again-on-copyright-white-paper> accessed 11 January 2016; Nicholas Hirst, ‘Barnier forced to delay copyright roadmap’ (European Voice, 16 July 2014) <http://www.politico.eu/article/barnier-forced- to-delay-copyright-roadmap/> accessed 11 January 2016.
12 Eleonora Rosati, ‘BREAKING: Do not expect to read the EU copyright White Paper while on your summer holiday’ (The IPKat, 17 July 2014) <http://ipkitten.blogspot.it/2014/07/breaking-do-not-expect- to-read-eu.html> accessed 11 January 2016.
leaked documents were also discussed in the literature review. However, in September of 2014, a working group was set up on Intellectual Property Rights and Copyright Reform,13 designed to reflect on IPR issues, and pave the way for upcoming copyright reform.
In April 2015, a leaked Digital Strategy document indicated that copyright was one of the main concerns for the Commission in its future plans.14 This was confirmed by the release of the DSM strategy on May 6 2015.15 This announcement, taking the form of a Communication,16 set out the plans of the Commission in creating a digital single market during its term.17 This rested on three key pillars, under which were 16 key initiatives. Copyright reform was one of those sixteen initiatives, under the first pillar of ‘Better access for consumers and businesses to digital goods and services across Europe’. The Communication proposed a modern, more European copyright law, in the form of legislative proposals before the end of 2015. These proposals, it stated, would improve people’s access to cultural content online – thereby nurturing cultural diversity – while opening new opportunities for creators and the content industry. In particular, the Commission wants to ensure that users who buy films, music or articles at home can also enjoy them while travelling across Europe. The Commission will also look at the role of online intermediaries in relation to copyright-protected work. It will step up enforcement against commercial-scale infringements of intellectual property rights.18
From this, we can see that the Commission was certainly vocal about wishing to change and update European copyright. However, it was not the sweeping reform which was lobbied for; the actual change which was envisaged in the DSM strategy, and even that which was mentioned in the White Paper, was far less radical. It did not envisage a new copyright Directive, and
13 Working Group on Intellectual Property Rights and Copyright Reform, ‘Subject files’ (European Parliament Committees, 12 January 2016) <http://www.europarl.europa.eu/committees/en/juri/subject- files.html?id=20150128CDT00182> accessed 13 January 2016.
14 Commission, ‘A Digital Single Market Strategy for Europe’ (Draft) (Communication) <http://g8fip1kplyr33r3krz5b97d1.wpengine.netdna-cdn.com/wp-content/uploads/2015/04/Digital- Single-Market-Strategy.pdf> accessed 11 January 2016.
15 Commission, ‘A Digital Single Market for Europe: Commission sets out 16 initiatives to make it happen’ (Press Release, 6 May 2015) <http://europa.eu/rapid/press-release_IP-15-4919_en.htm> accessed 13 January 2016.
16 Commission, ‘A Digital Single Market Strategy for Europe’ (Communication) COM (2015) 192 final.
17 Commission, ‘Digital Single Market’ (European Commission, 2015) <http://ec.europa.eu/priorities/digital-single-market/> accessed 13 January 2016.
18 Commission, ‘A Digital Single Market for Europe: Commission sets out 16 initiatives to make it happen’ (n 15).
focused on a select few issues. In December 2015, the Commission launched another public consultation, this time on the evaluation and modernisation of the framework for the enforcement of intellectual property rights,19 together with a Communication20 and a proposal for a Regulation21 on cross-border portability.
On the part of the European Parliament, then there was also development on copyright issues. In January of 2015, Pirate Party MEP Julia Reda, acting as special rapporteur for the Committee on Legal Affairs, published a draft of her report on the implementation of the InfoSoc Directive.22 Although nominally an assessment of the impact of the InfoSoc Directive, in reality the report was a sweeping call for copyright reform, enumerating the need for greater harmonisation of the copyright term, copyright exceptions, safeguarding the public domain, implementing a TDM exception, and many other recommendations for change. After publication of the draft, it was subject to debate and amendments.23 The final vote on this report occurred in July of 2015. Essentially, the paper’s core finding was that ‘[t]he provisions of 2001’s InfoSoc directive have not been able to keep step with the increase of cross-border cultural exchange facilitated by the Internet. The current copyright regime hinders the exchange of knowledge and culture across borders. Current challenges require a legislative update and further harmonization.’24 However, although Reda’s report made several statements about the unsuitability of current copyright legislation, by the time it had passed through all the layers of
19 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.
20 Commission, ‘Towards a modern, more European copyright framework’ (Communication) COM (2015) 626 final.
21 Commission, ‘Ensuring the cross-border portability of online content services in the internal market’ (Proposal for a Regulation) COM (2015) 627 final.
22 Julia Reda, ‘Draft Report on the implementation of Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society’ (2015) European Parliament Committee on Legal Affairs <https://pub.juliareda.eu/copyright_evaluation_report.pdf> accessed 18 December 2015.
23 Amendments: Julia Reda, ‘Amendments 1-280 Draft Report – On the implementation of Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society’ (5 March 2015) <http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&refere nce=PE549.435> accessed 13 January 2016; Julia Reda, ‘Amendments 281-556 Draft Report – On the implementation of Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society’ (5 March 2015) <http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&refere nce=PE549.469> accessed 13 January 2016.
24 Julia Reda, ‘Reda Report Explained’ (2015) (JuliaReda) <https://pub.juliareda.eu/copyright_evaluation_report-explained.pdf> accessed 13 January 2016.
amendments, it had lost some of its edge. It was certainly not the sweeping change which may have been envisaged by the Pirate Party MEP when first drafting. In its amended form, it was accepted by the European Parliament on 9 July 2015. Although the Parliament adopted a resolution25 that day, it was non-binding, which meant that the power for change effectively stayed with the Commission.26
In another analysis of the Copyright Directive, the UN Special Rapporteur in the field of cultural rights, Farida Shaheed, gave a presentation in May 2015 to the Legal Committee of the European Parliament, as part of its review process.27 This presentation summarised the 2015 report from the Special Rapporteur, ‘Copyright Policy and the Right to Science and Culture’,28 which framed tight copyright regimes as having the potential to violate the right of access to science and participation in cultural life, and urged that potential copyright instruments be carefully analysed to ensure that they do not place limitations on access to science and culture, unless pursuing a legitimate aim.29 Reda, in comments for online news service IP Watch, was of the opinion that Shaheed’s conclusions were a challenge to existing copyright law in the EU.30 The UN Report was met with some divisive opinions, similar to Reda’s report – the line between sufficient protection for content creators and owners on the one hand, and allowing sufficient access to science and culture on the other hand, is a difficult one to walk, and finding a balance between the two is, as ever, a crucial component of copyright.
A third prong of development on copyright in the EU, then, is of course that of the CJEU. While the Commission and the Parliament had been leaking and subsequently abandoning papers, publishing reports, and making promises, the Court’s track record showed considerably more action. In the first half of the 2010s, a substantial number of copyright and IP judgements were issued. The jurisprudence of the CJEU was particularly active on copyright and other intellectual
25 European Parliament, ‘Text Adopted’ P8_TA-PROV (2015)0273 <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2015- 0273+0+DOC+PDF+V0//EN> accessed 13 January 2016.
26 Eleonora Rosati, ‘EU Parliament rejects restrictions on freedom of panorama and ancillary right over news content’ (The IPKat, 9 July 2015) <http://ipkitten.blogspot.co.uk/2015/07/eu-parliament-rejects- restrictions-on.html> accessed 18 December 2015.
27 European Parliament Committee on Legal Affairs, ‘Draft Agenda: Meeting Wednesday 6 May 2015’ JURI (2015)0506_1 <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//NONSGML+COMPARL+JURI-OJ-20150506-1+01+DOC+PDF+V0//EN> accessed 13 January 2016. 28 Farida Shaheed, ‘Report of the Special Rapporteur in the field of cultural rights: Copyright policy and the right to science and culture’ (2015).
29 ibid 20.
30 Monika Ermert, ‘EU Copyright Review Divisive; French MEP Says UN Expert Lacks Balance’ (Intellectual Property Watch, 7 May 2015) <http://www.ip-watch.org/2015/05/07/eu-copyright-review- divisive-french-mep-calls-un-expert-too-unbalanced/> accessed 13 January 2016.
property rights in the period 2013-2015, with marked growth of the number of IP cases being heard,31 and a specific judge being assigned to all copyright cases.32 However, the priorities of the CJEU and the Commission were markedly different. While the policies of the DSM strategy included tackling geoblocking, ISP controls, and exceptions and limitations (notably TDM), the CJEU’s jurisprudence was more concerned with exclusive rights and a variety of exceptions and limitations. Spanning such diverse areas as private copying levies33 and e-lending,34 distribution rights35 and linking,36 the CJEU did not shy away from the technical and topical copyright issues going through national courts. While these decisions were not always well-received (Svensson,37 for example, regarding linking, resulted in the European Copyright Society38 and ALAI39 issuing differing opinions on the matter), they showed the willingness of the European judiciary to consider the very real issues that the digital shift has thrown up with regard to copyright, and to look for solutions within the framework of the European copyright system.
From looking at the three prongs of the European Union, it is clear that there is no conception of copyright as static or unchanging, but rather a willingness to adapt and enhance the copyright framework as and when it is required. As the DSM strategy and December 2015 announcements show, copyright change is still in the air, and will likely continue to be into 2016 and beyond, but the European authorities are slow to implement sweeping reform – the amendments to the Reda Report and lack of a new Copyright Directive are indicative of this.
From early in the mandate of the 2010-15 Conservative/Liberal Democrat government, IPRs became a hot-button issue, with Prime Minister David Cameron requesting that Professor Ian
31 43 IP cases in the CJEU in 2013, with an increase to 69 in 2014.
32 Marcella Favale, Martin Kretschmer and Paul LC Torremans, ‘Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice’ CREATe Working Paper 2015/07.
33 Copydan Båndkopi (Case C-463/12), Hewlett Packard Belgium (Case C-572/13), Egeda and others (Case C-470/14), Nokia Italia and others (Case C-110/15).
34 Vereniging van Openbare Bibliotheken v Stichting Leenrecht (Case C-174/15).
35 Labianca (Case C-516/13).
36 C More Entertainment (Case C-279/13), GS Media (Case C-160/15).
37 Svensson and others (Case C-466/12).
38 European Copyright Society, ‘Opinion on the Reference to the CJEU in Case C-466/12 Svensson’ (2013) <https://sites.google.com/site/ipkatreaders/articles/ECS%20Svensson%20opinion%20final.pdf> accessed 13 January 2016.
39 ALAI, ‘Opinion Proposed to the Executive Committee and adopted at its meeting, 17 September 2014 on the criterion “New Public”, developed by the Court of Justice of the European Union (CJEU), put in the context of making available and communication to the public’ (2014) <http://www.alai.org/en/assets/files/resolutions/2014-opinion-new-public.pdf> accessed 13 January 2016.
Hargreaves conduct his Digital Opportunity review in 2011.40 In his speech announcing the review, Cameron relied on Google’s founders’ statements that they would not have been able to establish themselves in the UK, due to its more restrictive intellectual property laws, which provide more limited exceptions than the US’s broadly formed ‘fair use’ provisions.41 That review was quickly accepted by the government42 and its recommendations, especially on copyright, were implemented, albeit after a delay of several years.43 This was indicative that the government generally agreed with the attitude offered by Hargreaves, that the UK’s IP regime was deterring economic growth, and thus needed certain amendments in order to be fit for purpose. The acceptance of the Hargreaves Review recommendations dictated the attitude of the government for the next three years, as the implementation of the exceptions came to its eventual fruition in 2014, even though one was quashed only six months later.44 This attitude was mirrored, to a degree, in the Digital Copyright Exchange’s Feasibility Study, carried out by Richard Hooper, with the aid of Dr Ros Lynch of the IPO.45 This study concluded that copyright licensing in the UK was unwieldy and unnecessarily complicated, leading to lost revenues in scenarios where obtaining a licence was too time-consuming, or difficult.46
Thus, the creation of a copyright ‘one-stop-shop’ would avoid those complications, and increase the number of licences being lawfully obtained to make use of copyright works. It is important to note, however, that the Copyright Hub was developed in response to that need and which embodied these values required no changes to current copyright legislation, merely creating a framework which simplified the system of obtaining licences as they currently existed. It was instead a technical and infrastructural investment. The support of the government for this initiative was more than clear – from seconding Dr Lynch of the IPO, who subsequently became Copyright and Enforcement Director there,47 to the project at its inception, to the financial
40 Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’ (2011).
41 ‘The founders of Google have said they could never have started their company in Britain’, David Cameron, (East End Tech City Speech, 4 November 2010) <http://webarchive.nationalarchives.gov.uk/20130109092234/http://number10.gov.uk/news/east-end- tech-city-speech/> accessed 19 November 2015.
42 HM Government, ‘The Government Response to the Hargreaves Review of Intellectual Property and Growth’ (2011).
43 On which see Chapter 6.
44 The private copying exception, which is discussed in Chapter 6.
45 Richard Hooper, ‘Rights and Wrongs: Is Copyright Licensing Fit For Purpose in the Digital Age?’ (2012) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/dce-report- phase1.pdf> accessed 14 December 2015.
46 ibid 40.
47 – –, Copyright and Enforcement Director, IPO (gov.uk) <https://www.gov.uk/government/people/ros-lynch> accessed 18 December 2015.
support offered by the government in 2013,48 even to the continued vocal support of the Intellectual Property Office49 through to 2015. This support can be viewed as an important indicator of the ways in which copyright and copyright industries can be encouraged to flourish and encourage growth without legislative intervention.
Given that the Hargreaves Review’s conclusions focused on the simplification of copyright for economic growth, it is clear from the then-government’s acceptance of those recommendations that the commitment to growth of business in the UK was important. However, that is not to say that this was a commitment to legislation where it is unnecessary. In 2015, at the start of the new Conservative government, the Intellectual Property Office published a new five-year plan, IPO 2020.50 From this, there was a visible commitment to development of non-legislative initiatives where feasible, amply demonstrated by the vigorous support of the Copyright Hub.51 Given the passage of several years and consultations processes between Hargreaves’ suggestion of new copyright exceptions and their eventual implementation, as well as the government’s extensive use of public consultations on copyright topics – there were nine consultations on copyright and designs in the 2010-2015 government period, on topics as diverse as reducing the duration of copyright in unpublished (2039) works52 and regulation of collecting societies53 – it is not unreasonable to say that the government was open to the idea of non-legislative initiatives, and the attitudes towards copyright were very much aimed at improving both usability and profitability of copyright materials.
Furthermore, as the conclusions to the consultation on reducing the duration of copyright in unpublished works may show, the government was further committed not to implementing unnecessary legislation or changes to copyright. Although the ERR Act 2013 created the power to reduce the copyright duration of certain unpublished works, following the conclusion, the
48 Department for Business, Innovation and Skills, ‘Government gives £150,000 funding to kick-start copyright hub’ (Press Release, 25 March 2013).
49 Ros Lynch, ‘Digital disruption or simply meddling: what next for copyright and enforcement?’ (PLS Open Meeting Speech, 1 July 2015). <https://www.youtube.com/watch?v=4dLw4-Hzh-A> accessed 12 November 2015.
50 IPO, ‘IPO 2020: For Discussion: The IPO five year strategy’ (2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/414941/IPO_5_year_s trategy_discussion_document.pdf> accessed 18 December 2015.
52 IPO, ‘Consultation on Reducing the Duration of Copyright in Certain Unpublished Works’ (2014) <https://www.gov.uk/government/consultations/reducing-the-duration-of-copyright-in-certain- unpublished-works> accessed 13 January 2016.
53 IPO, ‘Consultation on draft secondary legislation to regulate collecting societies’ (2013) <https://www.gov.uk/government/consultations/draft-secondary-legislation-to-regulate-collecting- societies> accessed 13 January 2016.
government elected not to utilise that power without further research, as it would have negatively affected the business model of certain rights holders.54
From the 2010 coalition into the 2015 Conservative majority government, then, there was a visible continuation of the same attitudes. The launching of two open consultations on copyright in July of 2015,55 in the first three months of the new government, was a solid indication of their commitment to improving copyright in the UK. Considering then the economic importance of the creative industries, it is unsurprising that the government was committed to improving their profitability, and its system of open consultation was a step toward obtaining the views of all interested parties.
Not only was the IPO committed to a clearer and more usable copyright structure, but its five- year plan was also open for discussion and comments. Published in March of 2015, it was open to public comment for two months,56 and the final version was publishing in January 2016.57 This open and transparent approach to the regulation and development of IPRs, not just copyright, in the following five years, and the opportunity to contribute to the direction which the IPO would take, was an encouraging sight for all interested stakeholders. Further, the IPO’s continuity was assured not only through its five year plan, but also its Ministerial oversight – appointed in 2014, Baroness Neville-Rolfe acted as (inter alia) Minister for Intellectual Property until the cessation of the coalition government, and was reappointed to the same position for the 2015 Conservative government, ensuring a degree of continuity in the governmental position toward intellectual property through the change of government.
In conclusion, although the IPO (and, in turn, the British Government) was committed to legislative change where necessary, as seen through the implementation of the Hargreaves- recommended copyright exceptions, it was also vehemently supportive of non-legislative
54 IPO, ‘Government response to the consultation on reducing the duration of copyright in certain unpublished works’ (2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/399171/973_- _Governement_Response_-_copyright_in_certain_unpublished_works.pdf> accessed 18 December 2015. 55 IPO, ‘Consultation on changes to penalties for online copyright infringement’ (2015) <https://www.gov.uk/government/consultations/changes-to-penalties-for-online-copyright- infringement> accessed 13 January 2016; IPO, ‘Consultation on Section 72 Copyright, Designs and Patents Act 1988 (CDPA)’ <https://www.gov.uk/government/consultations/section-72-copyright- designs-and-patents-act-1988-cdpa> accessed 13 January 2016.
56 IPO, IPO 2020 (n 50).
57 IPO, ‘Making life better by supporting UK creativity and innovation: The Intellectual Property Office’s Five Year Strategy’ (2016) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/493893/Corporate_5_ year_strategy.pdf> accessed 28 January 2016.
initiatives which simplify and ease the transactional difficulties which are associated with the use of creative and copyright works in the 21st century. This balance between legislative and policy developments is difficult to keep, but the IPO’s support of initiatives including the aforementioned Copyright Hub and Operation Creative (as discussed later in the chapter) showed its commitment to this balance.
Outside of the Copyright Hub, then, there were also other initiatives in place which simplify the process of licensing published works. Copyright collecting societies and professional associations moved with the times in creating initiatives which eased the licensing difficulties popping up in response to the digital shift. The Copyright Licensing Agency (CLA) developed new licensing initiatives in tandem with the British Library to supply documents along with blanket CLA licence permissions, easing the process of first obtaining documents, and then permissions to reuse them.58 The Publishers Licensing Society (PLS) developed PLSclear,59 an automated licensing system which allows users to seek reuse permissions beyond normal PLS licences the use of an online questionnaire which sends licensing requests to the correct rights holder. This system works in tandem with the already-mentioned PLSclear TDM engine,60 which allows users to specifically request permission to data mine works.
On the flip side of initiatives which make it easier to obtain traditional licences for copyright material are those movements which change the culture around the sharing of information, and the way in which we license creative works. Changing the licensing structure of creative works from having to seek a specific licence from a rights holder that forbids all actions except certain specific designations to one which grants a licence to all who wish to use a creative work, with sweeping permissions attached has changed the landscape of many aspects of creative works. The sector which this section focuses on is that of scholarly publishing, as it is the most relevant, but opening up licensing is visible in many different areas, from Wikipedia, the online encyclopaedia,61 to card game Cards Against Humanity,62 sweeping past photo sharing sites such as Yahoo!’s Flickr,63 and even fiction publishing such as Cory Doctorow, co-editor of technology website BoingBoing.64
58 CLA, ‘Licence Plus Explained’ (2015) <http://www.cla.co.uk/data/pdfs/licence_plus/licence-plus.pdf> accessed 18 December 2015.
59 PLSclear <http://www.plsclear.com/> accessed 18 December 2015.
60 See Chapter 6.
61 All text on Wikipedia is available under a Creative Commons ShareAlike Licence (CC BY-SA Modified), which is specifically modified for Wikipedia alone. Wikipedia, ‘Copyright’ (Wikipedia) <https://en.wikipedia.org/wiki/Wikipedia:Copyrights> accessed 11 November 2015.
62 Cards Against Humanity is available online for free, under a CC-BY-NC-SA 2.0 licence. See Cards Against Humanity <https://cardsagainsthumanity.com/> accessed 11 November 2015.
Open Access and Scholarly Publishing
The advent of digital led to an unprecedented increase in information-sharing around the world. With the ease of access to information, copyright may come to be seen as a barrier to knowledge, stopping the progress of development around the world, as the default is that rights are restricted, stopping creative works which could be so easily shared. The freedom to distribute and modify creative works and software can be difficult to achieve under current copyright frameworks, or perceived as such. The typical copyright declaration of ‘all rights reserved’ allows only the rights holder to modify, distribute, or display the work, and consumers can do nothing without a specific licence. This attitude, however, has been tackled by the establishment of two parallel movements which increase accessibility of information through a variety of means. The Free Software Movement65 and Free Culture Movement66 created new avenues for sharing and greatly increased the amount of information available online, free of charge, for reuse or adaptation, in an entirely legal and licensed way. The basic philosophy behind these movements is that creative works should be available for free reuse, through standard licensing terms which make it simple to make work available online, with permissions on re-use and adaptation embedded into standard licence clauses. The open accessibility of information will then, in theory, lead to greater development, more sharing, and more interaction. Thus, knowledge- sharing has manifold benefits, and few disadvantages.
The distinction between free software and free culture is relatively self-explanatory – the free software movement applies to software, and the free culture movement to other cultural media.
63 Flickr allows users to select which licence they wish to make their work available under. These photos are then collected and are available (together with information on Creative Commons licences) on the Creative Commons page of the Flickr website: Flickr, ‘Creative Commons’ (Flickr) <https://www.flickr.com/creativecommons/> accessed 11 November 2015.
64 Cory Doctorow is a British-Canadian blogger and science fiction author. He made his earlier books available under a CC-BY-NC-SA licence, but later changed to use a NoDerivs licence. His books are all available in a variety of ebook formats on his website, Craphound <http://craphound.com/> accessed 11 November 2015. BoingBoing.net is a technology blog first established as a zine [a self-published magazine or fanzine] in 1988 and was established as a website in 1995. BoingBoing <www.boingboing.net> accessed 16 November 2015.
65 Richard Stallman, Free Software, Free Society: Selected Essays of Richard M Stallman (Free Software Foundation, Inc 2006); Margaret S Elliott and Walt Scacchi, ‘Mobilization of software developers: the free software movement’ (2008) 21(1) Information Technology & People 4; Peter Wayner, Free For All – How Linux and the Free Software Movement Undercut the High Tech Titans (Harper Business 2000).
66 Lawrence Lessig, Free culture: How big media uses technology and the law to lock down culture and control creativity (Penguin 2004).
There are, inside of and related to these twin movements, many other interlocking movements and ideals, including Open Access (OA), Access to Knowledge (A2K),67 Copyleft,68 Open Source learning,69 the Free Software Foundation,70 and numerous others. There are debates about the differences between these social movements and the distinctions between free and open.71 The movement discussed in more detail here is OA, but it is important to note the variety of other movements which are interconnected – the freedom to choose how and when and why to open up creative content is one of the fundamental strengths of copyright – the choice of how to manipulate their creative works and how to license it is left to the rights holder.
Although OA shares some commonalities with the Free Knowledge ethos, it has slightly differing ideals – rather than concentrating on the free, open and adaptable use of any information, it focuses specifically on academic and scholarly research. OA is defined as ‘the practice of providing unrestricted online access to scholarly research.’72
67 Access to Knowledge as a movement rests on the ideal that access to knowledge should be linked to basic human ideals of justice, freedom, and economic development. Lea Shaver, ‘The Right to Science and Culture’ (2010) 1 Wisconsin Law Review 121.
68 Copyleft is a general method of making a program (generally, although other works are also applicable) free, and requiring that subsequent modifications and extended versions of that program to be free also. Copyleft is a generalised concept which is given effect in the GNU General Public Licence. For more, see – –, ‘What is Copyleft?’ (GNU Operating System website) <https://www.gnu.org/copyleft/> accessed 12 November 2015; – –, ‘GNU General Public Licence’ (GNU Operating System website) <https://www.gnu.org/copyleft/gpl.html> accessed 12 November 2015.
69 David Preston, ‘Open Source Learning’ (TED Talk, TEDxUCLA, 27 October 2012) <http://tedxucla.org/2014/09/25/david-preston/> accessed 12 November 2015.
70 The Free Software Foundation is a company which supports free software initiatives. It is a sponsor of the GNU Operating System, which in turn is the source of the Copyleft licence idea, and FSF also publishes the GNU General Public Licence, as well as other Free and Open licences – thus we can see here the interlinking nature of Free and Open movements. – –, ‘About’ (Free Software Foundation) <http://www.fsf.org/about> accessed 12 November 2015.
71 An example of this debate can be seen in Richard Stallman, ‘Why Open Source misses the point of Free Software’ (GNU Operating System website) <http://www.gnu.org/philosophy/open-source-misses- the-point.html> accessed 13 January 2016. Richard Stallman is the founder of the GNU movement and president of the Free Software Foundation.
72 Although there are sometimes stated to be two separate degrees of Open Access – gratis OA, which provides access rights [ie reading/downloading the paper] and libre OA, which provides additional usage rights [ie usage/distribution/modification rights], in practice, this distinction is irrelevant – for the purposes of this discussion, we will assume that we are discussing libre open access. Peter Suber, ‘Gratis and libre Open Access’ (Sparc, 2008) <http://sparcopen.org/our-work/gratis-and-libre-open- access/> accessed 18 January 2016.
Although OA was originally intended solely for academic journals, it expanded its boundaries to include also theses, book chapters, and even monographs.73 Open Access is a philosophy, and requires a framework underneath it to support the provision of OA rights.74
This is achieved, for the most part, through Creative Commons licences. The Creative Commons organisation, founded by Lawrence Lessig, Hal Abelson and Eric Eldred, published a range of standard licences for use by rights holders.75
[Creative Commons licences] provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of ‘all rights reserved’ to ‘some rights reserved.’76
Creative Commons licences fall into several categories, with the content owner being able to make decisions about the degree to which they would like their work to be made available. These range from the CC-0 licence, where the rights holder waives all rights to their work entirely, dedicating their work to the public domain, all the way up to CC-BY-NC-ND, which allows others to download and share work, provided that the work is credited, but prohibits any changes to the work or commercial uses. The flexibility of CC lies not only in the multiple options available to authors, but also in that the use of standard licences eliminates the need for each individual user to obtain a licence contract, and greatly reduces both the time and effort required to enable distribution and reuse of works.
CC licences offer six different options (besides the CC-0, which is a relinquishing of all rights) which combine different constituent parts to allow the rights holder to choose a licence tailored to their needs. The four specific parts are as follows:
BY – attribution. The licensor must credit the original creator of the work. NC – non-commercial. The licensor must not use the work for commercial purposes.
SA – sharealike. The licensor must licence subsequent or derivative works under the same terms as the original.
73 Mikael Laakso and others, ‘The Development of Open Access Journal Publishing from 1993 to 2009’ (2011) 6(6) PLoS ONE e20961.
74 For an interesting and alternative explanation of Open Access, see Jorge Cham, ‘What is Open Access?’ (PhD Comics, 24 October 2010) <http://www.phdcomics.com/comics.php?f=1533> accessed 13 January 2016.
75 Creative Commons <http://creativecommons.org> accessed 18 December 2015.
76 – –, ‘About’ (Creative Commons) <http://creativecommons.org/about> accessed 18 December 2015.
ND – no derivatives. The licensor must not change or edit the work, but may redistribute it.
These terms can then be combined to create six different licences which allow for users to specify the uses they are permitting of their works; for example, a CC-BY-NC-SA licence allows non-commercial remixing, tweaking or editing of a work, provided the creator is acknowledged, and derivative works are licensed under the same terms. Thus, rights holders can use licences which give specific guidance as to what is and is not permissible, but still license their works on a large scale which does not require individual negotiation for each person who wishes to use the creative work. Creative Commons licences are used in many innovative ways. Flickr, the image-sharing site, encourages users to use CC licences for photo sharing, and has specific directories which allow other users to browse CC images;77 Wikipedia, the online encyclopaedia, uses a Creative Commons Attribution Share-Alike Licence which allows its content to be reused freely, provided that derivative works are shared under the same licence terms;78 sci-fi author and BoingBoing editor Cory Doctorow uses CC licences to make his work available online under a CC-Non-Commercial-Share-Alike licence (BY-NC-SA) or Non-Commercial-No-Derivatives (BY-NC-ND), and monetises his content for commercial and printed purposes.79 The purposes for which CC licences can be used are incredibly varied, which is a part of their appeal.
Thus, in as short an explanation as possible, OA is the philosophy of allowing free access to works, and CC is (one of) the licensing framework(s) which allows that to happen.
For academic research specifically, OA is a goal which seems, at first glance, to be easily obtainable – the majority of academic authors receive no monetary compensation for their work, and thus making their work freely available online will not harm their income streams. Furthermore, as academics, they are likely to be the same people who are both publishing and consuming literature in their own field, and thus the OA movement would also have benefits for them as users.
While this may negatively affect publishers’ business models – products which are also freely available online are not likely to make as much profit – and costs such as editing, typesetting
77 Flickr (n 63).
78 Wikipedia (n 61).
79 See, for example, Cory Doctorow, ‘Download Little Brother for free’ (Craphound) <http://craphound.com/littlebrother/download/> accessed 18 December 2015; Cory Doctorow, ‘About Little Brother’ <http://craphound.com/littlebrother/about/#freedownload/> accessed 18 December 2015.
and printing must still be met, a balance has been struck through the development of two different models of OA. This allows publishers to sustain their business and ensure the rigorous academic standards expected of UK research are maintained. The two parallel models of OA publishing are known as Green and Gold OA.
Green OA allows authors to publish their papers and articles with journals, free of charge, and then make them publicly available after an embargo period has passed. The length of this period depends on the particular journal, but is generally three to six months, with scientific journals having shorter embargo periods as a rule. The articles may be deposited in a repository at the time of publication, but must not be made available until the embargo period has passed.80
Gold OA is publishing in specifically OA journals. These journals make their content available free of charge, through a variety of business models.81 Authors may be required to pay an article processing charge (APC) to the publisher in order to publish with an OA journal.82 There are also hybrid journals, which publish some articles OA, and some closed access. Many grant providers include funding to cover the payment of these APCs.83 Although Gold OA is often thought of as requiring the payment of an APC, this is not necessarily the case. In 2012, Solomon and Björk found that only 26% of journals listed on the Directory of Open Access Journals (DOAJ) were self-reporting as charging APCs.84
Open Access (or the idea behind it) was suggested as early as 1994, in Stevan Harnad’s Subversive Proposal85 that esoteric (ie research) authors archive their papers online in an FTP archive. This developed over the intervening years, until the coining of the phrase Open Access and agreement of a definition at the Budapest Open Access Institute (BOAI) in 2002.86 In order to achieve widespread free online access to academic research, the BOAI recommended both that authors be allowed to self-archive (also in institutional repositories) and that journals move toward becoming OA, through the launch of new journals which were OA from inception, and
80 See, for example, UCL, ‘Green Open Access’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/green> accessed 18 December 2015.
81 See – –, ‘OA journal business models’ (Open Access Directory) <http://oad.simmons.edu/oadwiki/OA_journal_business_models> accessed 18 December 2015.
82 David J Solomon and Bo-Christer Björk, ‘A Study of Open Access Journals Using Article Processing Charges’ (2012) 63(8) Journal of the American Society for Information Science and Technology 1485. 83 ibid.
84 ibid 1485.
85 Stevan Harnad, ‘Subversive Proposal’ (bit.listserv.vpiej-l, 28 June 1994) <https://groups.google.com/forum/?hl=en#!topic/bit.listserv.vpiej-l/BoKENhK0_00> accessed 13 January 2016.
86 Budapest Open Access Initiative (2002) <http://www.budapestopenaccessinitiative.org/read> accessed 13 January 2016.
aiding the transition of existing journals to OA models. The BOAI definition of OA gave a concrete form to an idea which had been around for years previously, one which remains as a standard even more than a decade after it was first stated.
By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.87
Under this definition, not all CC licences meet the standards of Open Access. Specifically, those which place restrictions on the works, other than attribution (the CC-BY licence) fail to meet the standards outlined in the BOAI declaration.
In the UK, OA was pushed to the forefront of discussion in 2011. The Finch Report, which was aimed at improving access to published research findings, cemented OA as the gold standard for publishing.88 The Finch Report was published by the Working Group on Expanding Access to Published Research Findings, which was set up in 2012 by the then-Minister for Universities and Science. Its mission was stated as follows:
we were charged with recommending how to develop a model, which would be both effective and sustainable over time, for expanding access to the published findings of research.89
This report made several recommendations on improving access to research publications, including that UK policy support OA publishing as a policy, particularly where research is publicly funded. The Finch Report’s recommendations were accepted by the UK government in July of 2012.90
88 Working Group on Expanding Access to Published Research Findings, ‘Accessibility, sustainability, excellence: how to expand access to research publications’ (2012) (Finch Report).
89 Finch Report (n 88) 2.
90 Department for BIS, ‘Government to open up publicly funded research’ (Announcement, 16 July 2012) <https://www.gov.uk/government/news/government-to-open-up-publicly-funded-research> accessed
At the same time the UK Research Council (RCUK) published its OA policy,91 which indicated Green OA, rather than Gold, as a more cost-effective method of making research available OA. The use of embargo periods removed the need for research institutions to pay APCs, meaning that publishing OA placed less of a burden on researchers in making their research freely available.92 The following day, the European Commission issued a Communication that recommended basing their policy concerning providing better access to scientific research on the RCUK policies. 93 These three documents (RCUK guidelines, governmental acceptance and EC Communication) were all published within two days of each other, leading to some conflicting directives on how OA should best be achieved – the Green or Gold routes. Nonetheless, all three advocated for OA as an industry standard.
In the years following these three big movements towards OA, its prominence in academia has only increased. The last Research Excellence Framework (REF) – the metric by which higher education research centres are assessed – concluded in 2014. The REF published a policy in March 2014 stating that all journal articles and conference proceedings published after April 1 2016 must be Open Access in order to be eligible for submission to the post-2014 REF.94 Given that the REF is used to inform the funding allocation of the four higher education funding bodies,95 the importance of research outputs being eligible for submission to the REF cannot be overstated. However, it is worth noting that the REF’s requirement for OA only states that papers must be available to read and download – therefore a CC-BY-ND licence would be acceptable to meet REF standards, a less stringent requirement than that put forward by the BOAI definition of OA.96
13 January 2016. The government rejected one proposal on lowering VAT rates applicable to e-journals, but this is not relevant to the topic at hand.
91 RCUK, ‘RCUK Policy on Open Access and Supporting Guidance’ (2012) <http://www.rcuk.ac.uk/RCUK-prod/assets/documents/documents/RCUKOpenAccessPolicy.pdf> accessed 13 January 2016.
93 Commission, ‘Towards better access to scientific information: Boosting the benefits of public investments in research’ (Communication) COM (2012) 401 final.
94 HEFCE, ‘Policy for open access in the post-2014 Research Excellence Framework’ (2014) <http://www.hefce.ac.uk/media/hefce/content/pubs/2014/201407/HEFCE2014_07.pdf> accessed 13 January 2016.
95 – –, ‘About the REF’ (REF.ac.uk) <http://www.ref.ac.uk/about/>accessed 11 June 2015.
96 HEFCE (n 94). Although the policy was updated in July 2015, this requirement remained unchanged. HEFCE, ‘Policy for open access in the post-2014 Research Excellence Framework Updated July 2015’ (2015) <http://www.hefce.ac.uk/media/HEFCE,2014/Content/Pubs/2014/201407/HEFCE2014_07_updated%20J uly%202015.pdf> accessed 13 January 2016.
The growth of OA in the first half of the 2010s was rapid – the DOAJ97 listed more than ten and a half thousand OA journals in 2015,98 a tenfold increase in ten years.99 However, with the growth of OA, it has brought a new set of problems for authors to face. Shifting the financial burden from subscriptions to APCs has brought its own range of issues, including increasing costs for universities and other research-producing institutions. This was acknowledged in the Finch Report.100 However, this assumes that all OA journals will charge APCs. In 2011, Solomon and Björk conducted a study of OA journals and found that just over 26% of those listed on the DOAJ at the time charged APCs.101 Thus, although the Finch Report did not acknowledge that Gold OA does not always require the payment of APCs,102 this is manifestly the case. Some three- quarters of OA journals in 2011 were using alternative methods of funding their journals. This was backed up by a further study in 2013, which set the number of journals using APCs at 28%.103 This varied greatly depending on discipline, though, with medicine the highest users of APCs at 47%.104 It was further found that those OA journals which charged APCs consistently had higher citation numbers than those which did not.105 This then creates an issue for those authors who might be less well-funded, and therefore face economic barriers to the payment of APCs.106 While there are some waiver programs in place, the effect of OA in certain scenarios is simply to shift the access problem from the reader to the author of a particular article, in cases where the author’s institution or funding is unable to cover the cost of an APC.107 APCs can vary in both amount and format – some journals charge per page, while others charge a single article fee. They can range from $8 to $3,900108 depending on the journal, the length of the article, and the subject area. Björk and Solomon found that by far the greatest expenditure on APCs was in
97 Directory of Open Access Journals <http://doaj.org/> accessed 13 January 2016.
98 As of June 2015.
99 Stevan Harnad and others, ‘The Access/Impact Problem and the Green and Gold Roads to Open Access’ (2004) 30(4) Serials Review 310.
100 Finch Report (n 88) 73-76.
101 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 81).
102 Finch Report (n 88) 72.
103 Marcin Kozak and James Hartley, ‘Publication Fees for Open Access Journals: Different Disciplines— Different Methods’ (2013) 64(12) Journal of the American Society for Information Science and Technology 2591.
105 Bo-Christer Björk and David Solomon, ‘Open access versus subscription journals: a comparison of scientific impact’ (2012) 10(73) BMC Medicine.
106 Richard Poynder, ‘The Finch Report and its implications for the developing world’ (Open and Shut?, 18 July 2012) <http://poynder.blogspot.co.uk/2012/07/the-finch-report-and-its-implications.html> accessed 13 January 2016.
107 Townsend Peterson and others, ‘Open Access and the Author-Pays Problem’ (2013) 1(3) Journal of Librarianship and Scholarly Communication 1.
108 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 82).
the area of biomedicine, which spent over seven hundred times the amount spent by Arts and Humanities in 2010.109
When considering how and where to publish, academics need to take into account a number of factors. The source of funding and, from 2016, REF eligibility of the article will determine whether OA publishing is required, as well as the institution’s policy. On top of this, once it has been decided that the article will be published OA, the choice between Green and Gold must be made. Where Gold OA is chosen, the selection of journal will then determine whether or not an APC must be paid. If this is the case, then the source of funding for the APC will also have to be clarified, and the amount of the APC will have to be considered, especially for those authors funding their own APCs.110 Some funding bodies provide for APC charges in their grants, and several institutions (UCL included)111 have central APC funds which can be used to meet the charges. As well as this, authors need to consider other factors such as journal impact,112 number of citations, journal fit and turnaround time.113
There are, of course, difficulties which come with the increase in OA. Much like the great innovation of email was accompanied by the development of email spam, OA is open to abuses on several planes. The rise of so-called ‘predatory publishers’ running counterfeit OA journals provides a worrying new trend for authors to avoid. The system is relatively simple – these ‘predatory’ journals charge authors in the form of APCs, but do not provide the usual editorial and publishing services which come with traditional journal publishing, whether OA or not. They then publish low quality, non-peer reviewed, and inferior research. The issues with this are two-fold. Not only are authors required to pay APCs which far outweigh the costs of publication, but even those genuine, scientifically sound papers which are published with the counterfeit journals are then tainted by the association with low-quality scholarly outputs and poor practice. Jeffrey Beall, of the University of Colorado Denver, highlighted this problem in 2012 in Nature,114 and Learned Publishing.115 Beall is also the curator of ‘Beall’s List: Potential,
109 ibid 1490.
110 David J Solomon and Bo-Christer Björk, ‘Publication Fees in Open Access Publishing: Sources of Funding and Factors Influencing Choice of Journal’ (2012) 63(1) Journal of the American Society for Information Science and Technology 98.
111 UCL, ‘Gold Statistics’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/statistics> accessed 18 December 2012.
112 Björk and Solomon, Open access versus subscription journals: a comparison of scientific impact (n 105)
113 Solomon and Björk, A Study of Open Access Journals Using Article Processing Charges (n 82).
114 Jeffrey Beall, ‘Predatory publishers are corrupting open access’ (2012) 489 Nature 179.
115 Jeffrey Beall, ‘Predatory publishing is just one of the consequences of gold open access’ (2013) 26(2) Learned Publishing 79.
possible, or probable predatory scholarly open-access publishers’.116 This list, which is updated regularly, names journals that engage, or may engage, in such predatory schemes, taking advantage of young or inexperienced authors and damaging the open ethos which is advancing scientific journalism and making it open for all in the 21st century. The criteria for inclusion in the list are available online117 and subject to regular revision: it was updated in 2015.118 Further, publishers may appeal their inclusion on the list, ensuring a degree of accountability, fairness, and transparency in the maintenance and curation of the list. Beall also curates a list of standalone journals (as opposed to publishers) which engage in predatory behaviour.119
Predatory behaviour from publishers and standalone journals is an issue especially for new, young, or inexperienced academics, especially those who may be research students or early career academics – their lack of experience in publishing academically may lead to them being more vulnerable to predatory publishing models. Universities may give guidance on this through their publishing and open access teams.120
In 2013, John Bohannon published an article in Science magazine, entitled ‘Who’s Afraid of Peer Review?’,121 a critique of Open Access journals’ review and acceptance policies. It described the submission of a bogus paper to 304 OA journals, with 255 responses, and a 60% acceptance rate. This, Bohannon stated, showed that peer review as a system had lost its integrity when connected to OA journals, and the acceptance of a scientifically unsound paper to such a high proportion of journals showed the unworkability of such a system.122
However, there were a number of flaws with his declarations. Firstly, of course, was the fact that the hoax was conducted without scientific research basis, and thus cannot be considered more
116 Jeffrey Beall, ‘Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers’ (Scholarly Open Access) <http://scholarlyoa.com/publishers/> accessed 18 December 2015.
117 Jeffrey Beall, ‘Criteria for Determining Predatory Open-Access Publishers (2nd edition)’ (Scholarly Open Access, 1 December 2012) <http://scholarlyoa.com/2012/11/30/criteria-for-determining-predatory- open-access-publishers-2nd-edition/> accessed 18 December 2015.
118 Jeffrey Beall, ‘Criteria for Determining Predatory Open-Access Publishers (3rd edition)’ (Scholarly Open Access, 1 January 2015) <https://scholarlyoa.files.wordpress.com/2015/01/criteria-2015.pdf> accessed 13 January 2016.
119 Jeffrey Beall, ‘List of Standalone Journals’ (Scholarly Open Access) <http://scholarlyoa.com/individual- journals/> accessed 13 January 2016.
120 See, for example, UCL, ‘Open access: frequently asked questions’ (UCL Library Services) <https://www.ucl.ac.uk/library/open-access/faqs> accessed 13 January 2016 (How can I be sure that an open access publisher is genuine/ethical/not a ‘predatory publisher’?); University of Manchester, ‘Advice on predatory journals and publishers’ (Open Access at Manchester) <http://www.openaccess.manchester.ac.uk/checkjournal/predatoryjournals/> accessed 13 January 2016. 121 John Bohannon, ‘Who’s Afraid of Peer Review?’ (2013) 342 Science 60.
than anecdotal. Secondly, the list of journals to which the paper was submitted made no distinction between ‘predatory’ journals, as already discussed, and more ‘respectable’ OA journals. The journals to which the papers were sent were taken from Beall’s list,123 DOAJ124 or both.125 Taking journals from Beall’s list would, naturally, lead to unsatisfactory outcomes and poor practice. The paper was only submitted to those journals which used an APC system, although in the article these are incorrectly referred to as Gold OA journals, meaning that the hoax did not engage with the full spectrum of Gold OA, and certainly not Green OA. Finally, the article was not submitted to any closed access journals, meaning that it is impossible to draw links between the article acceptance rate and the journal model, as there is nothing against which to compare it. These flaws were pointed out by several critics very shortly after publication, including PubChase,126 the Martinez-Arias Lab,127 scientific OA-publishing project PLoS co-founder Michael Eisen,128 and Ian Dworkin.129 Many of these (especially Dworkin) also linked to other commentaries on the article, with a shared conviction that the issue highlighted in the article was not OA, but rather the difficulties of peer review and the predatory OA journal model. Overall, while Bohannon’s article could well have highlighted fatal flaws in OA journal models, equally it could have highlighted an issue with the peer review system – something common to both OA and closed access journal publishers.130 Alternatively, it could be interpreted as highlighting the issue of predatory OA publishers, as discussed above – this was indeed the view taken by Beall himself.131 Thus, without a more research-oriented approach to conducting a truly scientific study of the acceptance rates of OA journals as against traditionally published journals, the merits of Bohannon’s article are sadly far less than they could have been.
123 Beall’s List (n 116).
124 Directory of Open Access Journals (n 97).
125 Bohannon (n 121) 61-2.
126 Lenny Teytelman, ‘What Hurts Science – rejection of good or acceptance of bad?’ (PubChase, 4 October 2013) <http://blog.pubchase.com/what-hurts-science-rejection-of-good-or-acceptance-of- bad/> accessed 13 January 2016.
127 Martinez-Arias Lab, ‘On prepub servers and DORA, a glimpse of a future that is upon us’ (Martinez- Ariaz Lab Department of Genetics, 7 October 2013) <http://amapress.gen.cam.ac.uk/?p=1239> accessed 13 January 2016.
128 Michael Eisen, ‘I confess, I wrote the Arsenic DNA paper to expose flaws in peer-review at subscription based journals’ (it is NOT junk, 3 October 2013) <http://www.michaeleisen.org/blog/?p=1439> accessed 13 January 2016.
129 Ian Dworkin, ‘Fallout from John Bohannon’s “Who’s afraid of peer review”’ (Genes Gone Wild, 14 October 2013) <http://genesgonewild.blogspot.co.uk/2013/10/fallout-from-john-bohannons-whos- afraid.html> accessed 13 January 2016.
130 Curt Rice, ‘Open access publishing hoax: what Science magazine got wrong’ (The Guardian, 4 October 2013) <http://www.theguardian.com/higher-education-network/blog/2013/oct/04/science- hoax-peer-review-open-access> accessed 13 January 2016.
131 Jeffrey Beall, ‘Science Magazine Conducts Sting Operation on OA Publishers’ (Scholarly Open Access, 3 October 2013) <http://scholarlyoa.com/2013/10/03/science/> accessed 13 January 2013.
Although the article headline stated that there was a worrying correlation between OA journals and a lack of rigorous peer review – even some of those journals which flagged the paper’s potential issues at review accepted it, and some journals published even after the author withdrew132 – the actual content of the Science article was as scientifically unsound as the bogus paper it based its investigation on, and its conclusions were incorrect in highlighting an issue with OA in general. In actuality, there have been more rigorously scientifically sound studies conducted on the retraction of articles, comparing OA and traditional publishing133 and the scientific impact of OA journals as against subscription models,134 both of which provided evidence as to the benefits of OA as against their subscription counterparts.135
Although OA does have some serious flaws – in the form of APCs creating barriers for less well- funded research institutions,136 the proliferation of predatory publishers and journals,137 and the increased financial burden on libraries and research institutions which are forced to both pay subscriptions to traditional publishers and APCs for OA publication – it is nonetheless a laudable and interesting subversion of the culture of publication. As well as this, it makes use of new types of copyright licensing – often, though not always, in the form of a CC licence – in order to allow greater circulation of papers without the need for individual licensing negotiations between researchers, publishers, institutions, or authors.
Advertising Initiatives for Infringing Websites
Chapters 3 and 4 discussed some of the legal and voluntary frameworks which were put in place in order to attempt to curb the growth of copyright piracy which arose in parallel with the rise of digital. The US CAS, as mentioned, is a voluntary system implemented with the cooperation of ISPs.138 It aims, in the first two strikes, to educate consumers about the ways to avoid online piracy, and directs users to lawful content sites. This educational method is less dictatorial than
132 Bohannon (n 121) 64.
133 Gabriel M Peterson, ‘Characteristics of Retracted Open Access Biomedical Literature: A Bibliographic Analysis’ (2013) 64(12) Journal of the American Society for Information Science and Technology 2428.
134 Björk and Solomon, Open access versus subscription journals: a comparison of scientific impact (n 104).
135 Claire Redhead, ‘OASPA’s response to the recent article in Science entitled “Who’s Afraid of Peer Review?”’ (OASPA, 4 October 2013) <http://oaspa.org/response-to-the-recent-article-in-science/> accessed 13 January 2016.
136 Peterson and others (n 107).
137 Beall’s List (n 115).
138 Center for Copyright Information, ‘The Copyright Alert System’ (Center for Copyright Information) <http://www.copyrightinformation.org/the-copyright-alert-system/> accessed 18 December 2015.
other methods of enforcement. The same mindset has been employed by British authorities and copyright organisations in trying to combat piracy through the CCUK.
In the City of London, the establishment of the Police Intellectual Property Crime Unit (PIPCU) created a dedicated task force to deal with the whole spectrum of IP infringements – from counterfeit physical goods to the online and digital content infringed every year. PIPCU was established in 2013, with £2.54m of funding from the IPO.139 Its original run of funding lasted until June 2015, but it was announced before then that more funding had been awarded to continue the unit until at least 2017.140 It falls under the remit of the Economic Crime Directorate, and consists of 20 staff members: detectives, analysts, and researchers. It is dedicated to protecting the UK industries that produce legitimate, high quality, physical goods and online and digital content from intellectual property crime.141
In an innovative approach to tackling online piracy, PIPCU combined with the UK advertising industry (represented by the Internet Advertising Bureau UK, the Incorporated Society of British Advertisers and the Institute of Practitioners in Advertising) and rights holders (represented by the Federation Against Copyright Theft (FACT), the British Phonographic Industry, International Federation of the Phonographic Industry, PRS for Music, the Publishers Association and the UK Interactive Entertainment Association) to create a joint task force.142 This combined task force is then responsible for ‘Operation Creative’, which is designed to disrupt and prevent websites from providing infringing content online. By July of 2015, more than six thousand websites had been disrupted.143
It works on the basis of a ‘follow the money’ approach – very few people will provide piracy services from pure altruism, and thus there must be opportunity for financial gain behind it. As
139 Josh Halliday, ‘Intellectual property crime unit to be set up by City police’ (The Guardian, 17 December 2012) <http://www.theguardian.com/technology/2012/dec/17/intellectual-property-crime- unit> accessed 18 December 2015.
140 PIPCU, ‘PIPCU funding confirmed until 2017 – Commander Head “This is fantastic news for the City of London Police”’ (City of London Police, 18 November 2014) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/pipcu- news/Pages/pipcu-funding-confirmed-until-2017.aspx> accessed 13 January 2016.
141 PIPCU, ‘About PIPCU’ (City of London Police) <https://www.cityoflondon.police.uk/advice-and- support/fraud-and-economic-crime/pipcu/Pages/About-PIPCU.aspx> accessed 13 January 2016.
142 PIPCU, ‘Operation Creative and IWL’ (City of London Police) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic- crime/pipcu/Pages/Operation-creative.aspx> accessed 13 January 2016.
143 City Police PIPCU (@citypolicePIPCU) (Tweet, 28 July 2015) ‘#DidYouKnow? Since #PIPCU launched, the team has disrupted more than 6,000 illegal sites selling #fake goods! Great stat for #TechTuesday!’ <https://twitter.com/citypolicepipcu/status/625999038316474368> accessed 13 January 2016.
part of Operation Creative, rights holders identify and report websites which infringe creative content. The operation then targets the money behind these infringing websites by placing them on an infringing websites list (IWL). This list is provided to the advertisers, agencies and intermediaries involved in Operation Creative, who may then voluntarily choose to withdraw their advertising from those sites.144 This disruption of advertising revenue – which is largely what funds infringing websites (an estimated $277 million in 2013145) in turn seriously harms the business model of the infringer, without the need for obtaining any injunctions, blocking orders, or other legislative interventions.
The notion of an initiative which squeezes copyright pirates through financial disincentives is not new. In 2012, Google combined with PRS for Music to commission a report on the business models of copyright infringement.146 This quantitative report provided data on a sampling of the sites thought by rights holders to be facilitating major copyright infringement, providing information on their functional methods, funding, hosting, and user bases.147 The report identified six major business models – and for each of those segments it then identified the major economic drivers.148 The report was clear that squeezing the finances of infringing websites was a viable method of impeding their growth and continued existence.149 For three of the six segments, advertising revenue was the significant economic driver, meaning that an initiative tackling advertising revenues on those sites was likely to have a measurable impact.150
This method was tested in 2013 through a three-month pilot scheme, overseen by FACT.151 This successful pilot was then translated into a large-scale system which launched in 2014, with the backing of the already-mentioned list of creative industry figures, including CMOs, content owners, advertisers and (implicitly) the government, through its financial backing of PIPCU, via the IPO. Such a diverse collection of supporters is not only essential to the successful operation
144 PIPCU, Operation Creative and IWL (n 142).
145 Digital Citizens Alliance, ‘Good Money Gone Bad. Digital Thieves and the Hijacking of the Online Ad Business: A Report on the Profitability of Ad-Supported Content Theft’ (2014) <http://media.digitalcitizensactionalliance.org/314A5A5A9ABBBBC5E3BD824CF47C46EF4B9D3A76/4af 7db7f-03e7-49cb-aeb8-ad0671a4e1c7.pdf> accessed 14 January 2016.
146 Google, PRS for Music, ‘The six business models for copyright infringement: A data-driven study of websites considered to be infringing copyright’ (2012) <https://docs.google.com/file/d/0Bw8Krj_Q8UaENDhEOG1LVFRhVkU/view> accessed 14 January 2016. 147 ibid.
151 Stuart Dredge, ‘Forget suing filesharers: in 2014, anti-piracy efforts follow the money’ (The Guardian, 2 April 2014) <http://www.theguardian.com/technology/2014/apr/02/infringing-websites-list-anti-piracy> accessed 14 January 2016.
of the scheme, but also a very encouraging sign of the willingness of different players to cooperate in tackling infringing websites via methods other than simply requesting takedown of the site.
At roughly the same time in 2014, Mike Weatherley MP, IP Adviser to the Prime Minister, published his Discussion Paper ‘“Follow The Money”: Financial Options To Assist In The Battle Against Online IP Piracy’,152 adding to the discussion of the approach as a valid method of tackling online piracy. Its publication was welcomed by PIPCU, with Commander Head commenting on his belief that the only way to make significant progress in tackling such crime was through concentrated cooperation between PIPCU and the industry.153
One of the most encouraging things about the ‘follow the money’ approach is that it is supported by organisations in such diverse positions – as Commander Head of PIPCU’s comments show, cooperation between different facets of the industry is necessary to really have an impact on deterring pirates, and this is visible in all facets of Operation Creative.154 From the report jointly commissioned by Google and a CMO to the police and rights holder cooperation required to place websites on the IWL, the widespread and enthusiastic support and embracing of effective enforcement methods without the need for judicial intervention is an encouraging sign that this could well be an extremely effective weapon in the arsenal fighting copyright infringement and piracy. This is equally supported by the figures which stated a 73% drop in advertising on illegal sites – what remains now is to see whether a drop in advertising is accompanied by a drop in piracy.155
As Minister for the Creative Industries, Ed Vaizey, stated:
The creative industries are a real UK success story. They are now worth £71.4 billion a year to the UK economy and grew faster than all other sectors of UK
152 Mike Weatherly, ‘“Follow the Money”: Financial Options To Assist In The Battle Against Online IP Piracy’ (Discussion Paper) (2014) <http://www.olswang.com/media/48204227/follow_the_money_financial_options_to_assist_in_the_bat tle_against_online_ip_piracy.pdf> accessed 14 January 2016.
153 PIPCU, ‘Commander Head welcomes Mike Weatherley’s MP latest report on tackling advertising revenue from illegal websites’ (City of London Police, 18 November 2014) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/pipcu- news/Pages/tackling-advertising-revenue-.aspx> accessed 14 January 2016.
154 PIPCU, Funding Confirmed until 2017 (n 141).
155 PIPCU, ‘Operation Creative sees 73 per cent drop in top UK advertising on illegal sites’ (City of London Police, 12 August 2015) <https://www.cityoflondon.police.uk/advice-and-support/fraud-and- economic-crime/pipcu/pipcu-news/Pages/Operation-Creative-sees-73-per-cent-drop-in-top-UK- advertising-on-illegal-sites.aspx> accessed 14 January 2016.
industry in 2012. It is essential we protect our creative industries from people ripping off their content online. Disrupting the money unlawful websites make from advertising could make a real difference to the fight against copyright infringement. It is an excellent example of what can be achieved through industry, Government and law enforcement working together.156
There are, of course, issues with the IWL, as with any other system – Stuart Dredge of The Guardian pointed out that the IWL is not available to websites which may be placed on it.157 Further, there was no publicly available appeals procedure which would allow websites to challenge their placement on the list.158 The Pirate Party UK criticised the process, with Andrew Norton pointing out that that
[e]xactly who verifies sites as being illegal and by which jurisdiction; how to work out if you are on this list, which will not be made public; and more importantly how to be removed from the list if inaccurately put on it is not yet clear. If the process is anything like the current censorship of pirate sites it will involve uncontested court rulings where the supposedly offending site isn’t present to defend their legitimacy. 159
Norton then went on to recommend that civil suits would be more suitable to deal with the infringements, rather than a large-scale coordinated effort.160 He strongly criticised the government’s involvement, going as far as to describe the measures as ‘yet another example of the government loaning itself out to favoured groups to act as free private leg-breakers.’ The effectiveness of the scheme was also called into question, with the Pirate Party representative pointing out that the reduction in advertising from household brands was only 12%.161
However, there are some safeguards in place. The stated standard of evidence for inclusion on the IWL is high, with content owners being required to provide a ‘detailed package of evidence’162 that a website is infringing copyright. This is then evaluated by PIPCU officers, giving an additional safeguard against websites being wrongly included on the list. Furthermore,
156 Tom Pakinkis, ‘Police IP Crime Unit launches Infringing Website List for advertisers’ (Music Week, 31 March 2014) <http://www.musicweek.com/news/read/police-ip-crime-unit-launches-infringing- website-list/058069> accessed 14 December 2016.
157 Dredge (n 151).
159 Pirate Party UK, ‘Impartiality Concerns Over London City Police’ (Press Release, 31 March 2014). 160 ibid.
162 PIPCU, Operation Creative and IWL (n 142).
the voluntary nature of participation in the boycott of websites on the IWL adds an extra layer of protection to those websites which may find themselves in the (unlikely) position of being wrongly included on the list. As PIPCU also confirmed to the Guardian, website owners will be contacted at the time of their first inclusion on the list, and given a chance to provide feedback and, if necessary, prove that they have changed their ways.163
Thus, while the transparency of the PIPCU process may be somewhat suspect, on the whole, it is a valid and encouraging action for the protection of copyright, based on a solid research backing, and a pilot scheme which did show measurable improvement, albeit perhaps not as much as might have been hoped for.164 The awarding of additional funding to continue the PIPCU,165 however, is indicative that the IPO, at least, is satisfied with their success in the first two years of operation.
In conclusion, although three very different things are discussed in this chapter, it is valid to say that they all share a common thread in that they concern oblique approaches to copyright. Given that this thesis situates itself in the study of publishing as a discipline, and not solely copyright law as related to publishing, it is important to consider both the non-legal and legal initiatives which are available and have developed over the course of the digital shift. Thus, while the development of new licensing initiatives is not directly related to the policy objectives of, say, the European Parliament, the publishing industry is directly affected by both of these things. Similarly, the reduction of traffic to pirate websites and redirection to genuine sites is vitally important. Copyright laws which work for publishers and consumers need to be combined with initiatives which will allow users to access the content they want and need legitimately in order to continue to support the creative industries and the publishing industries. While the European Parliament and Commission are capable of issuing Directives which will affect copyright law across the EU, there are also a variety of ways in which the EU can encourage better adaptation to digital copyright without the need for mandatory, pan- European Directives. The conducting of consultation processes166 means that the EU is taking into account the views of citizens, while we can also see that it is exploring alternative views of copyright through the Reda report and associated processes, as well as the Licences for Europe pledges. There is a commitment to change within the Commission, as the DSM Strategy has
163 Dredge (n 150).
164 PIPCU, Operation Creative sees 73 per cent drop (n 155).
165 PIPCU, Funding Confirmed until 2017 (n 140).
166 Commission, ‘Have your say on the enforcement of intellectual property rights’ (n 19).
stated, but there is certainly also a degree of restraint in considering carefully the merits of legislative change across the EU with regard to copyright. It is not opposed to approaching copyright from a different perspective – where the situation mandates it, legislation will be implemented, but there is also a willingness to find new ways to adapt to the digital shift.
Similarly, the UK government has shown a real commitment to change where necessary, through the implementation of the Hargreaves exceptions167 and the ERR Act 2013,168 but it is also capable of showing restraint where necessary, and not acting where it is not justified. Even after the implementation of the 2014 Hargreaves exceptions, the issue for copyright in the UK in 2015 was still making it easier for people to obtain legal access to creative works, and preventing copyright infringement, especially in an online context. The support of the government for this is clear, through the financial support offered to the PIPCU in the City of London police,169 and the financial and personnel contributions offered to the Copyright Hub project in the last number of years.170 Furthermore, the IPO is committed to obtaining public opinion on issues which require reform, not just ploughing on without proper consultation and research of the issues at hand. While some may feel that this is not enough – although consultations produce a variety of personal responses, the adage that ‘the plural of anecdote is not data’171 rings true here, and the IPO is committed to solid evidence for policy-making – there is still little doubt that the IPO and, in turn, the wider government, is committed to ensuring that copyright remains both profitable and accessible for creators and consumers alike in the UK in the coming years, and ensuring that evidence submitted to consultations is of a sufficient standard.172 The line between allowing innovation to continue and stifling creativity and profitability is a fine one. The IPO is not walking it blindly – while not all may agree with its decisions, there is no disputing that it is taking into account the views of all who respond to its
167 Hargreaves (n 40).
168 Enterprise and Regulatory Reform Act 2013.
169 PIPCU, Funding Confirmed until 2017 (n 140).
170 For example the secondment of Ros Lynch (n 47).
171 Rebecca Tortell, ‘The Plural of Anecdote’ (The Plural of Anecdote) <http://www.pluralofanecdote.com/about.php> accessed 14 January 2016.
172 Both through IPO policy, which published a document laying out standards for evidence (IPO, ‘Guide to Evidence for Policy’ (2013) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388238/consult-2011- copyright-evidence.pdf> accessed 14 January 2016) and through the work of individuals attached to the IPO: 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.
consultations – one need only look to the response and results of the 2039 works consultation173 to see this.
Outside of governmental policies, of course, there are also ways in which copyright – or navigating the copyright sphere – plays a role in the wider societal fabric. The changing attitudes of society which have accompanied the shift to digital can be seen in both positive and negative lights, framed in the context of new social movements which have created a generation of internet consumers who view copyright material in a way which is totally different to that of their forebears.
The culture of reuse, remixing, and user-generated content is one that has resulted in the need for shifts in paradigms and attitudes toward copyright and copyright works, and in certain areas, the law is struggling to catch up. However, in the arena of scientific research, users have themselves created a system which makes research more accessible to all, without the need for legislative intervention. Although the Finch Report,174 the government’s subsequent acceptance of its recommendations,175 and the REF 2020 policy176 have made OA essentially mandatory for UK researchers and journal publishers, the development of OA was unprompted, and it is an excellent example of an ideology which arose spontaneously and developed its own supportive infrastructure. The proliferation and adoption of OA has not always been smooth, and is faced with its own issues, including those of access to and the integrity of publishing in OA journals, as well as the financial implications of a new publishing model which shifts cost burdens to those on the publishing side, rather than the readers. Nonetheless, the development and widespread adoption of OA without the need for legislative intervention is an interesting study of the ways in which the shift to digital has resulted in something wholly unimaginable even thirty years ago.
Lastly, the chapter considered a final non-legal approach to enforcing copyright. Operation Creative, although administered by PIPCU, a division of the British police force, does not threaten legal action for websites which are infringing copyright. Operation Creative is an example of a policy enforcing copyright not by going after the end-user, who is creating or downloading copies of protected works, nor through traditional litigation enforcement mechanisms, but rather works within a framework not actually related to copyright works.
173 IPO, Government response to the consultation on reducing the duration of copyright in certain unpublished works (n 54).
174 Finch Report (n 88).
175 Department for BIS, Government to open up publicly funded research (n 90).
176 HEFCE, Policy for open access in the post-2014 Research Excellence Framework (n 94).
Rather than look for court cases litigating for the infringement of copyright works,177 it instead strangles the financial motivations of copyright infringers by securing agreement from advertising companies, in order to reduce the financial incentives for websites which facilitate copyright infringement. This off-beat approach to protecting copyright – by cutting off the source of finances which encourage the websites to continue, as well as removing the reputable advertising which may encourage consumers to believe that they are obtaining legitimate copies of protected material – is a good example of an oblique policy which engages with the challenges of digital without the need for cumbersome legal processes. The same type of approach can be seen in the American CAS, which encourages consumers to obtain content through legal channels, without threatening drastic measures such as removing internet access, lawsuits,178 or damages.179
This investigation of the policies and differing developments which have come together with the advent of digital is a snapshot of the possibilities which have followed the shift in publishing and distribution paradigms inherent in the digital revolution. Combined with the ever- developing nature of the digital revolution, this chapter has outlined some segments of the developments possible through and with the digital world. While the shift to digital has thrown up new issues for rights holders and content users alike, through issues of access, restrictive and technology-specific legislation, online piracy, and other issues, the current freedom of contract and licensing which is associated with copyright also allows for interpretation and the ability to set one’s own boundaries on the distribution, reproduction, and adaptation of one’s work. OA is just one example of how effective copyright can be – the freedoms which are given to authors to control their works are part of what has allowed OA as a movement to flourish. This is just one example of how the Free Culture and Free Software movements have shifted boundaries
177 Although this is substantially easier now than several years ago, with the development of the small claims track of the Intellectual Property Enterprise Court: Appleyard Lees ‘The Intellectual Property Enterprise Court – Quick and cost effective IP Litigation in the UK’ (Appleyardlees.com) <http://www.appleyardlees.com/the-intellectual-property-enterprise-court-quick-and-cost-effective-ip- litigation-in-the-uk/> accessed 18 December 2015.
178 Electronic Frontier Foundation, ‘RIAA v The People: Five Years Later’ (2008) <https://www.eff.org/files/eff-riaa-whitepaper.pdf> accessed 14 January 2016.
179 Capitol Records, Inc and others v Thomas-Rasset No 11-2820 (8th Cir 2012); Ed Oswald, ‘Is a $675,000 fine for sharing 31 pirated songs too much?’ (ExtremeTech, 24 August 2012) <http://www.extremetech.com/internet/134992-is-a-675000-fine-for-sharing-31-pirated-songs-too- much> accessed 14 January 2016; Mike Masnick, ‘District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable’ (TechDirt, 24 August 2012) <https://www.techdirt.com/articles/20120823/16473120140/district-court-675000-non-commercially- sharing-30-songs-is-perfectly-reasonable.shtml> accessed 14 January 2016; John Borland, ‘RIAA settles with 12-year-old girl’ (CNet.com, 10 September 2003) <http://www.cnet.com/uk/news/riaa-settles-with- 12-year-old-girl/> accessed 14 January 2016.
and created new paradigms. The shift to digital was monumental, and created multiple issues for legislators, content creators, publishers, and users alike. This chapter, however, has shown a small sampling of how policies have embraced digital and utilised its unique properties to create new paradigms and benefit from flexible approaches to copyright and copyright works. The need for legislation is not always clear, and this chapter has shown just some of the ways which the current copyright framework is fit for purpose in that it offers the flexibility and freedom of contract and licensing to create infrastructures and systems which allow creativity to grow.