The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
Other Men’s Flowers
By David R Worlock
Other Men’s Flowers
Of the making of anthologies there is no end. While few have the eminence of General Lord Wavell’s effort, whose title stands at the head of this page, the seven that I saw through the press for their schoolmaster compilers as a junior editor in an educational publishing house between 1967 and 1970 no doubt fulfilled their historic role of filling lesson space, providing homework learning-by-heart, boring the already terminally bored, and, once or twice, striking a note of intellectual excitement or amusement that turned a young mind on to something different. My editorial mentors were skilled at the copyright clearance game. “ No George Orwell, mind, that Sonia Brownell won’t allow discounts for school books”, “ Plenty of Out of Copyright “ (when did George Gissing die?), and “ try to quote where you can within the meaning of the Act” (how much of a poem makes a breach ?).
My most successful effort, in 1969, was a low budget production called Conflict 1, selling for £1.25, with a budget for copyright fees of £95.00. I got inside the budget (there is a great deal of children’s own verse in it), the brilliant compilers at Eltham Green School hit paydirt (or as much as you can on 2.5% of net sales after discounts!) as an examination set book, and the fees charged by agents for Conflict 2 and 3 when they appeared skyrocketed.
However, the samizdat manuscripts of pirated content that the compilers had been copying for use in class or circulation via advisors to other schools went legitimate for the first time. We did not have the internet but we did have community and, with it, the sharing of content within communities in defiance of legal restraint.
In fact, our great complaint then was that we publishers were using the law as the law was intended to be used but no one else was. We produced posters to put on the wall alongside school photocopiers drawing the attention of teachers to the fair use provisions of the Act, but whenever I spoke to teachers they were unrepentant about copying what they needed “ in the interests of education”.
And so, in a sense, was I, who had also entered educational publishing to help to make a difference, whether that was in SE London, or Lagos or Nairobi. In the two latter places they did not then have photocopiers so they were within the law, but suffered from a grave lack of books. In London they also needed more books, but they could take action and defy the law to meet their needs and get within their budgets. We all knew that we were on a slippery anarchistic slope, and some of us presumed, sometimes with a frisson of excitement, that the slope would end up at a cliff edge, and we would go right over. Others simply assumed that law would be self-reforming: no society can live permanently with laws that much or even most of society disregard in ordinary life, and that inevitably, but after the fact, legal provision would re-align with the way in which citizens want to live.
Between 1970 and the mid-nineties yawns a gulf of enforcement inactivity and publisher complaints about the erosion of their control/margins. By 1979 I was a digital publisher, licensing legal information into searchable databases (and learning that much of the law is outdated and unenforceable), and by the mid-nineties I was running a consultancy business to advise publishers on going to the network. As with CD-ROM, we rushed at the technology and promptly reproduced within it all of the material which we had harboured in print, then sold it more cheaply and in a more easily reproducible form. And we as publishers stuck rigidly to our formats, product definitions and product pricing.
Some cheered when DotCom boom turned to Bust
Some of my clients secretly cheered when the DotCom boom turned to Bust, and anticipated a return to the apparent security and pretence of control offered by print, conveniently forgetting their earlier complaints that they were losing control of that. They were particularly dismayed when Bust turned to Boom again, but this time with a real twist. This time the patients had taken over the asylum. This time the network began to mean co-operation and collaboration.
Despite the silly name, Web 2.0 really is a turning point. My schoolteacher friends, were they still at Eltham Green, would be anthologizing on the Web, sending and discussing the results with pupils, adding and editing all the while, and not addressing the legitimate concerns of Miss Sonia Brownell and A M Heath at any point. They would not even know, or perhaps care, that the law has changed many times in the meanwhile, that educational fair use is far better defined, or that the library lobby has won ground against the publishers. The only salient fact is this : they can do it, so they will do it.
It is conventional to talk about print copyright by using as examples the music and video industries, and point to the disasters and recoveries attendant upon their encounters with the digital world. I would contend that the progression outlined here indicates that we only need to look within the print world to see where we are going, and that the future landscape for copyright now appears before us with awful clarity. The publisher in the network has been sidelined as the controller of content formatting. He will continue to exist in the developing role of ringmaster, but in a context where the active element of web presence – working in a business process, participating as a learner in a virtual classroom, booking a holiday – require content support to complete their functionality.
And so the traditional publisher morphs into an entrepreneurial repackager of content needed for work, or study or entertainment in situations where, using software or the anthologer’s science of selection and licensing, he is able to bring additional value into the game which people will pay for and which will create a margin. But you do not have to be a former print publisher to fulfil these roles : internet service companies, enterprise software companies, schools and teachers, private individuals et al can fulfil them. And we cannot even look to the ancilliary revenue streams created by advertising as a way of retaining a publishing position in a traditional sense, since it is now becoming clear that advertising too is changing its nature and its dominance in the collaborative network where community endorsement may be more valuable to the advertiser than the ability to shower us all in unwanted and intrusive messaging.
Rights attached to content ownership get bent and buckled
In this networked world the nature and rights attached to content ownership get bent and buckled too. To the secret joy of competition lawyers, who have always hated monopoly rights, copyright will be denuded into simple statements of origination, the right to be named as the originator, and the right not to release content into network use.Recognition and ownership are unlikely to outlive authors.But there is certainly a place for Creative Commons style provisions here. Once content is released to the Open Web it will be difficult to claim re-use fees of any type. Some content will always be Dark Web ( indeed there are currently signs that this is growing) but Open Web content will increasingly be held in common without effective barriers to re-use. This will take a long time in some instances ( in science publishing, for example, it is likely that the nature of scholarly communication itself and within it a change in the place of the research article, will be more important than the current advocacy for Open Access and the removal of ownership controls on journal content). And the Web will become a place of real or implied licences, with standardized payments via collection agency toll-based systems becoming the normal – or only – way of securing any form of second use recompense.
Society and the Web mirror each other exactly. There is no accident in the rise of global and local digitally-networked community access. Our former magazine and book publishing customers seek the like–minded on the Web and express the need to communicate with them in the network. In order to do that they need content, but the content harboured by real world publishers and sold at a price will become commoditized,or be “emulated”, if we insist on using legal provisions derived from a pre-networked world to protect it.The problem of the network and its communities will not be too little content, with publishers refusing to allow it outside of the Dark Web : it will be too much content, with users making their own, emulating protected material, or “outing” copyright material so widely that it becomes as commonplace as a Pamela Anderson movie on the Web in the late 1990s. And those who “re-use” without permission will claim the justification of Art : historically copyright content will become a part of someone’s collage, integrated into web anthologies which are themselves creative works, re-used so widely that no one any longer can guess the source. One of the greatest problems of the world, where each and every one of us is a publisher, may be in providing authenticity and giving authentication. This may be a major part of the future history of libraries in the network.
Meanwhile, the true concentration of erstwhile publishers should not be ownership or protection of content, but added value and service provision. As content becomes more and more commoditized ( Google is now a major publisher of primary legal information) so we move up the value chain. There will be problems about protecting ownership in that field as well. Better we concentrate on those, and on effective licensing schemas, than waste more time on law reform in the copyright area. That horse has bolted, and even the stable door has begun to rust away from long disuse.
David Worlock is a Cambridge History graduate who joined Thomson Reuters as a trainee in 1967, and subsequently worked in educational and academic publishing before managing Thomson’s school-based publishing as Group Executive Publisher in the late 1970s. Between 1980-85 he was CEO of the pioneer development of EUROLEX, the UK’s first online service for lawyers, subsequently acquired by Reed Elsevier in 1985. In that year he founded Electronic Publishing Services Ltd, a research and consultancy company based in London and New York which has worked alongside the digital content industry in developing strategies for products and markets in consumer and business sectors. Content environments have ranged from text to audio-visual, from online to wireless, from narrowband to broadband. Major projects included the development of Fish4 of which he was non-executive chairman for five years. Public consultancy work includes advisory services and projects for the European Commission, the Department of Trade and Industry, the British Library, QCA and the Soros Foundation.
Abstract: A sub-culture of illicit content re-use has always undermined legal protection of copyright . In the digital network that sub-culture becomes the dominant style of usage. Publishers need a new business model based on value added to content , and the network needs a framework of implied and actual licensing to allow users to behave as they are now empowered to behave. Ownership and the right to be named as the original source of content must be clear but attempts to control re-use once content is introduced into the Open Web will simply bring the law further into disrepute