The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Chief Executive, Publishers Association
Abstract: The UK’s economy used to be predicated on manufacturing. Then it was predicated on services, in particular financial services. Now and going forward, most commentators agree that the Knowledge Economy is of critical and central importance to the UK. The publishing industry is the lifeblood of that Knowledge Economy, not only through the dissemination of knowledge but also indirectly through support of the academic infrastructure as well as driving social change and social mobility. All of that value – and indeed 8% of UK Plc – is predicated on copyright.
Technology is blurring boundaries between what have hitherto felt like very different businesses and sets of rights. New business models are emerging and new players are bringing disruptive changes to the marketplace. Copyright has always evolved to meet changing realities and no-one can be in any doubt that further evolution to fit tomorrow’s markets will – indeed, must – follow.
At its heart, copyright gives creators ownership of their work and investors confidence that they will realise a return if what they risk money on works well. These two core principles must remain sacrosanct if the UK is to continue creating (and exporting) the high value content so valuable in social, scientific, cultural, educational and economic terms.
Happy Birthday to Copyright
Copyright is the essential legal protection for authors, publishers and other creators in the world of literary and related works in the United Kingdom (where it was given statutory form for the first time 300 years ago, in the 1709 Statute of Anne). It has grown from this beginning to form the main legal basis for the worldwide publishing industry, which contributes so much to literature, learning and culture not only in the UK but in every country and every language in the world. The most recent government figures estimated that the UK creative industries alone comprise 8% of the UK’s economy, the largest part of which comes from publishing. This does not include the additional income created by original works based on books, such as films, radio and TV programmes, which must contribute even more, even in the UK, and it does not begin to estimate the benefits which have accrued globally, and which copyright protects.
The Knowledge Economy is of critical importance to the country’s future. Publishing is front and centre in delivering the opportunities it affords, both directly through the dissemination of knowledge and indirectly through support of the academic infrastructure, as well as driving social change and social mobility through literacy.That contribution is predicated in a fundamental way on copyright, and in particular the ability to make a return on creative and financial investment.
Copyright, of course, does not protect everything, but provides vital legal safeguards for original works that have been developed into a permanent form by the investment of time, skill, and money by the creator, be that an author or a publisher. The literature which results is a culturally significant product of inestimable value. Society rightly expects reasonable access to the work, both after the term of copyright has expired, and during it, by means of agreed exceptions such as that for research and private study. So the creator’s, or creators’, exclusive rights of copyright are balanced by a limited term of years and by copyright exceptions for users such as libraries and educational establishments wishing to have access in the public interest. The resulting formula, even after 300 years, is a balanced system which works not only for authors and publishers, but is in the public interest too. So – many happy returns to UK copyright.
Being 300 doesn’t mean being obsolete or outdated
The story of copyright since 1710 has been one of almost constant revision to accommodate new formats, works and technologies, such as sound recordings, films, TV programmes, computers and now the internet. This process of continual development is in all our interests, both as rightsholders, users and society as a whole, and ensures that the framework keeps pace with the accelerating changes in technology, while maintaining the vital balance of interest outlined above. Amongst recent examples we can number the World Intellectual Property Office (WIPO) Copyright Treaty of 1996, giving specific protection to Technical Protection Measures, and Digital Rights Management metadata, together with a new “making available” right, balanced with continuing discussions about exceptions for users with special needs, such as visually impaired people. The 1996 Treaty was implemented throughout the EU following the 2001 Copyright Directive, which was implemented in the UK via 2003 Regulations. So a great deal of our copyright law is only 7 years old, and all of it is subject to regular reassessment to gauge its relevance and usefulness. Compared with some legal systems, therefore, copyright is comparatively young, and in a state of constant renewal as new technologies and business models come to the fore.
Copyright is fundamentally fit for purpose in the 21st century
Even the comparatively recent developments outlined above were comprehensively reviewed by the government’s Gowers Review, which reported in its 2006 Final Report that intellectual property law in the UK was as fit for purpose in the 21st century as it had ever been, although capable of further improvement through a number of specific revisions on detailed points. The Gowers recommendations are still being discussed in 2010 by the UK’s IP Office, and it is likely that revised exceptions will be introduced soon for distance learning and format shifting for preservation and archiving – all proof that the framework can be readily adapted in the best interests of the digital economy without undermining the fundamental securities it provides.
Copyright and the Internet are not enemies
The internet is of course a major challenge to copyright, as it is to all territorially – based laws. Many feel the natural democracy and freedom of the internet should mean all content should be freely available to all around the world. However, this assumes an endless supply of new, original, authentic and reliable scientific and cultural content can be produced at no cost to anyone, a charming but naive proposition. Someone has to pay for original content, and free content is no more realistic than free beer. Apart from user-generated content like blogs and Wikipedia, most authentic, peer-reviewed content of any value needs significant investment, and that investment – of skill and expertise as much as money – needs protection; in the borderless era of the internet, that protection must be global. But there is no reason to suggest this means copyright and the internet should be enemies. On the contrary, the 300 year history of copyright shows that it can adapt to technology, and be strengthened by it, just as has been the case for every other breakthrough in the dissemination of works and ideas.
Rightsholders are users, too
Many of the challenges to copyright in the digital age are equally challenging for rightsholders; a useful counterbalance to fears of rightsholder “monopoly”. A key difficulty for would-be users in obtaining permission to reproduce copyright works is what to do when you encounter an “orphan work”, whose rightsholder cannot be located, even after a diligent search. This is a hurdle for rightsholders as well, as many publishers need to reproduce substantial portions of text or illustrations in the creation of anthologies or encyclopedias, and in doing so needs permission from other publishers, or picture galleries. Potential solutions have been discussed at UK, EU and international level amongst rightsholders, libraries and other users. This dialogue has been constructive, and both rightsholders and users are optimistic about the prospects of developing a universally agreeable solution, such as the creation of orphan works licences to be offered by rightsholder bodies. One likely solution may come from the current EU-sponsored ARROW project, which is in the process of building common rights and permissions systems based on interoperable metadata across all 27 member states of the EU – a project which will facilitate the digitisation and “unlocking” of our cultural heritage on a vast and unprecedented scale.
Copyright is about creativity as well as enforcement
No publishing industry can grow if creativity is not protected and encouraged, and enforcement is in the interests of all those who create and enjoy creative content. Despite national, international and digital piracy being a real problem for copyright owners, publishers’ primary motivation is to publish as widely as possible, at a price which their readers can afford. In developing countries this may mean sponsoring a reduced price local edition, which represents considerable investment and risk for the UK and local publisher or agent, particularly if pirates get hold of the material, and local enforcement measures via the police or courts become necessary to protect the author’s and publisher’s work.
In the UK, publishers go to great lengths to avoid suing their own readers, despite the rise in digital piracy. In preference to pursuing legal action, the Publishers Association has recently launched a Copyright Infringement Portal, which has achieved great success in delivering simple, automated Notice and Takedown requests to people offering unauthorised or illegal downloads of copyright material. Recent surveys suggest success rates around 80%, since most people are not pirates or criminals, and would prefer instead to be legitimate users of our authors’ work.
Copyright – The Future?
Technology is blurring boundaries between what have hitherto felt like very different businesses and sets of rights. New business models are emerging and new players are bringing disruptive changes to the marketplace. Copyright has always evolved to meet changing realities and no-one can be in any doubt that further evolution to fit tomorrow’s markets will follow. Indeed there are a number of such changes that we believe to be essential.
Copyright, if you strip it down, has at its core two principles. If you created it, it’s yours. And if you invest in something that makes a return, that return belongs to you. Weakening either of those two core principles puts at risk not only the 8% of the economy currently predicated on copyright, as well as millions of attendant jobs; but also the often intangible value in social, scientific, educational and cultural terms that the creative industries deliver to the UK.
Copyright is the essential enabler for the digital economy. If proper standards and tools are implemented, consumers shouldn’t need to understand copyright in order to use and enjoy content; and creators should be protected from the abuse of technology. Copyright represents a balance between the needs of everyone in the value chain: creators, businesses which invest at risk to bring content to audiences, and consumers. As we move ever further into the digital epoch, it is critical that that balance is preserved.
The internet today is a morass of mediocrity, punctuated by high value content. Some of that high-value content is “user-generated”; but much of it is not and never can be. No-one is going to take months or years crafting a work, or invest money in the continued creation of content, if the ability to make a return is compromised. Proper econometrics and a credible, rigorous evidence-base – which should not take too long to build – must underpin policy-making in this critical area.
The UK’s future depends fundamentally on the further development of the Knowledge Economy. It surely follows that copyright must always work in ways which give authors and publishers the confidence both to take time creating high value works and to make them available. As business models and copyright continue to evolve, this is the principle to which we must hold fast.
 The 1709 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”, took effect on 10 April 1710.
Simon Juden was born and brought up in Norfolk and read Pure Mathematics at Emmanuel College, Cambridge, going on to complete a PhD at the University of Bath. He taught at Eötvös Loránd University in Budapest before working with satellites as a scientist and computer programmer. He went freelance in 1997, first as an IT expert and later as a management consultant, working on a variety of programmes within the high technology sector for companies like Vodafone, Data General, Proquest and Manugistics. He joined the board of the Professional Contractors Group (a trade body for freelance workers) in 2001, becoming its full-time chairman in 2004. He left to join the Publishers Association as CEO in May 2007. The production and consumption of digital product is a particular interest of his, and he speaks and writes on publishing in a digital age in a variety of fora within the UK and Europe