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Is Queen Anne’s Statute relevant to Twitter?

By John Howkins, author of The Creative Economy


Is Queen Anne’s Statute relevant to Twitter?

Does a 300 year old law which few people have read matter at all? Most laws over 50 years are a bit dusty.  Media regulations need to be changed every few years.  Maybe the Queen Anne statute is irrelevant.

The most important ideas about copyright in recent years did not come from any rights-holder.  They did not originate in any publication, think-tank, national government or WIPO but in a California-based company, in between the Pacific mountains and the southern reaches of San Francisco Bay, which wants to make books more easily available online. The smart guys at Google want to make it easier for us to find and read books. They think it would bring more traffic to their site, cut readers’ costs and is an all-round neat idea.

The US Department of Justice listened to rights-holders and was unconvinced.  Several European governments, including France and Germany, protested. Virtually all politicians, and many authors, publishers and book-sellers, are confused. Some authors echo the feelings of Jack Valenti, President of Hollywood’s MPAA, when he attacked the video recorder, ‘I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.’

Why did this happen?  Why is publishing being re-invented by a company that has never published a book in its life and has little sympathy with the ink-and-paper business?

Rights-holders fear Google will undercut their copyright-based business model of maximising revenues by restricting the sale of rights.  It’s a good model and still works well for business-to-business deals, although cracks in the foundation are beginning to show.  For hundreds of years it has enabled media investors to cover the costs of financing expensive books, albums, films and TV programmes, as well as enabling manufacturers to develop ever more sophisticated copying technologies (like the VCR and DVD). As a result of this long boom, market demand for media entertainment is higher than ever. Hollywood reported a 8% increase in box office revenues in 2009, and the UK, dependent on US films, also did well.  The numbers of British book titles reached new records in 2009. According to the IFPI, UK music sales increased in 2009 although global sales were down by 7%.

Media owners are also discovering the importance of differential pricing. Someone wanting an out-of-copyright ‘Jane Eyre’ and a new bestseller from Martin Amis or Stieg Larsson, or choosing between a ticket to a £500,000 budget movie and £450 million Hollywood movie, has traditionally been asked to pay about the same price. That‘s now changed.  A ticket to see ‘Avatar’ in 3D costs about 30-40% more than the 2D version (most people who have seen both versions say the premium is worth it).  The film distributors who sell rights to 2D screens, 3D screens, IMAX, pay-TV, Video-on-Demand and DVD are seeing retail prices vary from £2-3 to a top of £30. The digital systems that make this possible started in America and Europe but are having a dramatic effect in Africa and Asia, including China.

Copyright has played a small role in these changes by facilitating business-to-business deals.  But the chief causes have been new technology and new regulations.  New technology, both analog and digital, has allowed more companies to provide competitive services.  In turn, governments have abolished monopolies and allowed outsiders to compete on equal terms and to offer more consumer choice.  Book publishers who were immune from commercial pressures for a long time (helped by the net book agreement) suddenly found themselves having to fight for attention.

Even without the Internet, media companies, backed by governments, have enabled consumers to enjoy a breath-taking expansion of media experiences, from a hundred CD versions of classic compositions to Sky’s 600+ channels to 3D movies.

With the Internet, the expansion is virtually infinite. The Internet is the world’s most wonderful device for accessing and sharing and facilitates an explosion of copying.  People who say the Internet is as big as Gutenberg’s development of printing miss the point.  It is as if Gutenberg invented printing, film, TV, photocopying, computers and optical disc recording one giddy morning and then drew back the curtains on globalisation after lunch.

With such a bonanza, it is not surprising that the old division between experiencing, ownership, borrowing and outright theft have become a trifle fuzzy.  Most copying is legal because the rights-holder wants the stuff to be copied.  But some is illegal, because the rights-holder wants income.

Boundaries get fuzzier every year

The boundaries get fuzzier every year. Google Books is the first of a new wave of initiatives.  Tim Berners-Lee is pursuing the vision of a ‘semantic web’ which allows computers to comprehend the meaning of software and to search and sort for semantic relationships (it’s fair to say quite a few people are sceptical). The Internet of Things has many more supporters including major US, German and Chinese companies, strongly backed by their governments.  This links the power of search machines and the Radio Frequency Identification (RFID) electronic tags that manufacturers are increasingly embedding in manufactured objects, notably clothing and  household goods as well as packaged food, to allow them to track its movements from the factory to the shop (and why stop there?). So while at present we use a search machine to find web pages with the words we are looking for, the semantic web will allow us to find a web page with the meanings we want, and the Internet of Things will allow us to find the object we want.  Type in ‘socks, red, lost’, and Google or Baidu or whatever your favoured machine is will flash up, “right behind you, just where you thought they were.”

Meanwhile software companies are working out how to extend Twitter’s 140-letter capacity and how it can send sounds and pictures.  Twitter’s 140 character limit is surely part of its charm but the urge to expand is irresistible.  After all, as Adam Singer, Chairman of the British Screen Advisory Council says, the only difference between text and music and pictures is bandwidth.

Who owns the copyright in a tweet or a video tweet?

We can only make sense of this creative ecology by re-thinking the fundamentals of copyright, and, indeed, of all the rules and regulations that affect how we share and get access to media content and information. It’s not just copyright.  The debate on information access, which is what we are really talking about, involves confidentiality, privacy, personal data rights, competition policy and, in some countries, human rights legislation.  At one extreme, it involves plagiarism; at another free speech.

Governments’ piecemeal approach

The piecemeal approach favoured by most governments, such as keeping the definition of qualifying works but fiddling with copyright exemptions, or changing term durations but not changing market access rules, will soon be overtaken by technology and may lose consumer credibility.  This may seem a tall order, but let’s remember the Queen Anne statute really started life as a competition policy initiative.

We can see the emergence of three kinds of licensing: (1) fully commercial, restricted licensing which is necessary to enable investors and producers to make commercial, large-scale media productions; (2) non-commercial but still restricted licences for people who want to share their work but want to retain some rights such as moral rights and commercial derivative uses (typically, Creative Commons) and (3) non-commercial and non-restrictive licences for people who want their work to have as wide usage as possible and don’t want to retain any control over it (such as user-generated, social media).

Trying to maintain the same laws and licences over a £100 million movie, a book edition costing £50,000 and a YouTube video is doomed to failure. If the English MPs of 1709 had been faced with a similar range of activities, I doubt they would have been so ambitious or so foolhardy.

The 1709 Statute on Copyright revealed its extraordinary quality in its headline: “An Act for the Encouragement of Learning.” In my work on the creative ecology it has become clear that learning is the most common and probably the most critical characteristic of creative people, from the genius to the journeyman. Creative people may differ in everything else but they are all persistent learners.

Parliament was reflecting the mood of the times. Isaac Newton who had been a Member of Parliament a few years earlier (it is absurd to imagine such a world-ranking scientist being a member of Britain’s parliament today) said that he had managed to develop the concept of gravity “by standing on the shoulders of giants,” a phrase he himself had borrowed from earlier writers. The purpose of the 1709 Statute was to enable the giants to stay standing while making it possible for others to look even further ahead.

Statute covers most of today’s issues

The statute covers most of today’s issues – including ethics, free speech, ownership, fair competition, money, theft and the public domain. It established six principles:

1.  The purpose of the ‘encouragement of learning’ (repeated verbatim in the 1790 USA Copyright Act).

2.  The right of authors to own their output.

3.  The right of the public to access what is written.

4.  The principle that both these rights are conditional.

5.  The principle that both rights should be mutually balanced.

6.  The principle that the terms of trade between authors and printers/publishers should be fair.

Given today’s cornucopia, rather than assert private ownership and then allow a few exemptions, perhaps we need to assert public use and then allow a few commercial exemptions.

No one would argue that Mickey Mouse should never be in copyright (if so, Walt Disney could not have paid his rent). However, nobody would argue that the person who invented Mickey should have total control over his name (otherwise I could not quote him in this article).

Where, though, should we draw the line? What is the right way to regulate the ownership of ideas in the twenty-first century? There is the belief that we have a basic, permanent right to our ideas and that we have a right to charge others compensation if they want to use our ideas. In such a world, incentives and rewards take priority and always trump access. There is a second purpose which some people find counter-intuitive. The laws also enable people to have access to what has been created. This puts access above incentives and rewards.

Which is the best way forward? I want to suggest an answer based on the creative ecology and the individual’s freedom to make their ideas central to their lives; to use their ideas to build up their own personality, identity and status; to use their ideas to build up their earning power; and to turn these assets into their own creative capital.

There are three concentric spheres of creativity. First, there is the commercial world which requires substantial, long-term investments and a robust revenue stream. The author’s creative processes have not changed much in 300 years but the potential for exploitation has exploded. Even so, commercial authors are a small minority.  A larger number of people are willing for others to use their work for non-commercial purposes.  And countless people are exploring ideas, sounds, and images, and are creating work with no thought of its commercial value or, to be more precise, of claiming any exclusive rights over it.

Today, creativity is not the exclusive  preserve of a few exceptional people but the result of millions of people, often working freely and collaboratively. The pursuit of learning, as indeed the pursuit of happiness, often depends upon one’s freedom to pursue one’s own ideas. This dynamic operates differently in various cultures. I spend several months in China every year where I am acutely aware of the differences between the eighteenth-century Enlightenment traditions that are dominant in Europe and America and the older Asian traditions of social harmony that are prevalent in China. Each exemplifies a different way of using ideas and knowledge.

It is clear to me that a country’s “encouragement of learning” is just as important, if not more so, as its encouragement of trade in commodities, manufactures and financial services. Actually, of course, they are mutually interdependent.

I take away three or four points from these anniversary discussions. Copyright is only one of a whole matrix of regulatory mechanisms.  It started as a device to encourage learning by means of ensuring fair competition and fair terms of trade between two groups of people and it abandons that role at its peril. We need to rethink where copyright is essential and where it is a hindrance.  Queen Anne’s six principles are not a bad place to start.

John Howkins

John Howkins is a leading figure in the global development of cultural and creative industries. John is Chairman of London-based BOP Consulting and a Board Director of HandMade plc,which produced the 2009 animation, ‘Planet 51’,  and of HotBed Media Ltd. He is a Director of Screen East, the UK regional screen agency.

Howkins & Associates has a joint venture with Info-Space in Beijing, is an investor in the Shanghai Creative Industries Investment Company which owns ‘1933’ in Hongkou and is Chief Advisor to the Old Canal Development Zone, Wuxi.

John has advised numerous multinational companies, businesses, government organisations and cultural agencies and has worked in over 30 countries including Australia, Canada, China, France, Greece, India, Italy, Japan, Mexico, Poland, Singapore, UK and USA.

He is the Founder and Director of the Adelphi Charter on Creativity, Innovation and Intellectual Property, and devised the London Intellectual Property Advisory Service (‘Own It’).  In 2010 he is co-organising and chairing British Council copyright forums in London and Shanghai.

He was associated with Time Warner Inc from 1982 to1996 with responsibilities for TV businesses in Europe. He is Deputy Chairman of the British Screen Advisory Council (BSAC).  He is a Member of the United Nations Advisory Committee on the Creative Economy and a Council Member of the UK government’s Arts and Humanities Research Council (AHRC).  He is a former Chairman of the London Film School, Vice Chairman of the Association of Independent Producers and Executive Director of the International Institute of Communications (IIC).

He is the author of ‘Communications in China’, ‘Four Global Scenarios for Information’, ‘The Creative Economy’, ‘CODE’, ‘Dutty’s Dare’ (with Zhao Li), ‘Creative Ecologies’ and other books.

[1] In 1709 the Statute of Anne, “An Act for the Encouragement of Learning by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”.

Abstract: It’s odd to suggest a 300 year old statute may be relevant today and doubly so in media markets where regulations change every few years. But imagine the next stage of Twitter where tweets can include sounds and pictures, and the next stage of the Internet where Google can search for objects as well as words.  We need some principles to make sense of this and provide a solid basis for laws and commercial contracts. Most policy-makers would admit, if only in private, that governments lack a ready framework for understanding what is happening, and lack also in-house expertise. Information and media industries do not have an equivalent body of professional expertise or research theory that informs other areas of public policy such as agriculture, education, construction, manufacturing, defence and trade.  One of the most exciting challenges of the future is how to generate such basic resources.  Until then, the six principles of the 1709[1] Statute are a good place to start.

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