The European Union:

In 2010 is Copyright still able

to protect and reward

the creative heart of Europe?

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By Angela Mills Wade

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Executive Director, The European Publishers Council

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THE EUROPEAN UNION: In 2010 is Copyright still able to protect and reward the creative heart of Europe?

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Imagine you are reading this page back in 1990. This morning you pored over your favourite newspaper, folded it and put it down to finish later.

Or in 2000? That same title seemed a bit slimmer today. And was it a touch brasher? You had looked on its website yesterday and wondered for a moment how you would feel if that relatively succinct set of electronic pages which you browsed somewhat awkwardly (not really used to the online game) became the norm. Surely paper papers were immortal?

Now in 2010, you have just read your famous broadsheet which you know has a rapidly falling readership and wondered whether its online doppelganger really will supersede paper – perhaps via a handheld device? A different physical and intellectual experience. You know that worldwide some great newspaper titles are on the brink, facing tumbling advertising revenues and increased competition – from free dailies, internet intermediaries, multiple TV and radio sources, some of which continue to be state funded!  And in print at least a steadily declining readership, especially among young people who often skim news from bookmarked blogs or search engines which throw up headlines, brief descriptions, un-confirmed sources, facts and fictions.

Jump to 2020, in each major EU market two or three of the major titles have folded for ever. One or two have retained a pale memory of their vivid parentage. Most news is online now that TV and press have effectively migrated and merged. The great majority of folk get their video news clips from websites or what used to be TV Channels. Whatever happened to analysis and investigative journalism?

What went wrong? How did we let it happen? Who was to blame? Much more important what action are we taking right now to try and avoid that alarming future?

Back to 2010 when let’s face it, our total audience has never been greater thanks to all the outlets now available.. Audience is not our problem. Getting paid for our content is.  Without proper protection for our intellectual property, and innovative ways to licence and manage our content, any future investment in news media through trusted brands appears unsustainable.

So the question facing us today is how do we safeguard copyright on the planet of the internet to help preserve not only newspapers and professional journalism but creative production across all the media? How do we stop – some say – the loggers cutting down the rainforests of creative content that once were home to news, comment and artistic expression…in music, in video, in print and on the airwaves?  But that of course is the global problem. What about our own more temperate landscape of Europe?

Within the Single Market framework, the European Union has been harmonising copyright legislation for over two decades. In April 2001 an EU Directive for online copyright was adopted to adapt copyright law to reflect the latest technological developments. This was part of the effort to encourage the development of an Information Society for the already ubiquitous internet.

In 2005 the idea of a European Digital Library was born and the Commission published a new Communication which included legal challenges to established copyright legislation. The launch of this digital “Europeana” led to several further Green Papers, Communications and Consultations about what to do about “creative content online”, and was followed in 2009 by the Communication on copyright in the Knowledge Economy. The Commission aimed to tackle the challenges of mass-scale digitisation and the dissemination of copyrighted content by asking us to consider certain new exceptions to copyright especially when it is hard to identify who owns copyright works (so-called Orphan works). While many observers would acknowledge the role played by exceptions and limitations in maintaining the balance inherent in copyright law, a real danger loomed that sweeping or unbalanced exceptions would inhibit the rapidly growing market for creative content online. The incentive for creators and producers to develop new services would have been removed. Lively concern was expressed by many media voices.

The European Commission then issued a Reflection Document[1]towards the end of 2009 on the expanding digital universe and its effects on the media and creative businesses in Europe. They dealt with three key areas:-

• Consumer access

• Commercial user access

• Protection of Rights Holders

In doing so they concentrated on the musical and film industries which have suffered profoundly from piracy over the last decade. Only once, in the opening paragraph, did the Document mention newspapers and magazines despite the crucial fact that any mandatory Law would have significant impact on the whole publishing industry. In dealing with Rights they made one startling omission: there was no discussion of Automated Rights Management which means adapting copyright to the technology and geography of the internet.

The Reflection Document raised vital questions for us to consider in 2010. The first must be: What policies should we pursue to develop a management system for copyright that is fit for the 21st century?  Copyright is central to the answer but it must be founded upon a dynamic rights management infrastructure which enables everyone to have access to the European treasury of creative content.

Infrastructure here means the technical standards, the software, the databases and the services that make it easy for the user to find, access and use publishers’ content across a range of devices from mobiles to TVs. But to do so in a way which respects the rights of the copyright holder and clearly accommodates any exceptions and limitations. This is absolutely essential to the future of not only a free press but a viable and profitable publishing industry as a whole.

So let us look more closely at what the Commission’s Reflection Document proposed. It sought “an ambitious European Digital Agenda which should include targeted legislative action” with the aim of creating “a modern, pro-competitive, and consumer-friendly legal framework for a genuine Single Market for Creative Content Online”, in particular by:

• “creating a favourable environment in the digital world for creators and rightholders, by ensuring appropriate remuneration for their creative works, as well as for a culturally diverse European market;”

• “encouraging the provision of attractive legal offers to consumers with transparent pricing and terms of use, thereby facilitating users’ access to a wide range of content through digital networks anywhere and at any time;”

• “promoting a level playing field for new business models and innovative solutions for the distribution of creative content.”

These may be laudable hopes for the Commission, for business and for consumers but not all such aims are necessarily compatible. To help address these objectives but also any intrinsic conflicts, the European Publishers Council has invited the Commission and all concerned to address six Principles and act to:

• Principle 1: cherish the fundamental role of copyright in providing the incentive to invest in the commercial production and dissemination of creative content.

• Principle 2: respect the entitlement of copyright holders to choose how their content is made available, accessed and used.

• Principle 3: promote freedom of choice in licensing solutions.

• Principle 4: make sure that the system of rights management carefully balances rights, exceptions and limitations.

• Principle 5: take a balanced approach to the challenge of digitising Europe’s analogue print legacy.

• Principle 6: uphold the publishing industries’ unique economic, cultural and social contributions to the changing digital Europe.

And how can the Commission, industry and consumers work together to achieve such essential aims which are critical to the prosperity of all the media and the very continued existence of some? And to do so not for a static market but for a world in which the one thing we can guarantee is continuing technological change!

Here is a Plan to consider:

1. Fair Competition: Recognise and promote investment by Europe’s publishers by ensuring that, as rights holders, they are in no less favourable a position – online than other producers and distributors of digital content.

2. Fight Piracy: combat all forms of piracy of copyright content and ensure full implementation of the EU Enforcement Directive.

3. Freedom of Choice: preserve publishers’ freedom to choose licensing solutions. These must be designed to give business users and consumers access to products and services across digital platforms and devices while respecting the principle of authorised use.

4. Technical Solutions: encourage the development of technological solutions for rights management that are effective in law; recognise that technology is an enabler of rights management, not a replacement for copyright.

5. Digitising collections: Work with rights holders to meet the challenge of digitisation of existing collections in libraries and archives in a balanced way and in accordance with establishedcopyright principles of prior consent by right holders.

6. Orphan Works: develop a harmonised approach to Orphan Works, based on the need for a ‘diligent search’ proposed by the High Level Expert Group. Find collective management and technical solutions recognising that Orphan Works will thus become a diminishing issue.

7. Exceptional Solutions: resist the extension of mandatory exceptions to copyright unless there is a proven case that the existence of different national exceptions constitutes a real barrier. The Commission should encourage broad collaboration to ensure that existing exceptions and limitations are accommodated within licensing solutions and encourage the development of automated methods of facilitating exceptions.

8. Adaptive Innovation:  apply a test of ‘adaptive innovation’ to the development of the copyright framework. Adapt existing solutions for copyright because they have a long-proven track record of economic and cultural success. Avoid the introduction of inappropriate or untested measures which could damage well-established creative businesses.

In the last decade, new technological developments have made the enforcement of copyright more necessary than ever. Peoples’ perceptions have changed. It is now a common misconception that the “free and open Internet” is the place to go for a free lunch. This has led to unprecedented levels of piracy, even on a business to business level where some companies profit from content that somebody else has struggled to create. The “free flow of information” does not mean products and content available for free. It means access to a vast universe of information and, may be, knowledge but not necessarily at no cost.

But how could one cut down on piracy and reduce the unauthorised taking or theft of content? One Adaptive Innovation has been the project to establish a mechanism to help manage those endangered rainforests of content. It goes under the acronym of A.C.A.P. meaning Automated Content Access Protocol[2]. ACAP aims to stop illegal logging. It cannot stop entry to the forest nor indeed, if the entrant is determined to ignore the law, the taking of logs. But it can and does put up warning © notices at every entry point, notices that are legible not only to human loggers but to the robots and crawling mechanisms that scan, index and copy great chunks of the web in less than the twinkling of a human eye. Those notices (with equal velocity!) say “This is my land and yes the timber may be for sale but please do not steal it, please ask permission before you enter and help yourself to my logs”.

More than 1900 websites in over 57 countries have already installed and use this protocol of serving prior © notice on uninvited visitors or commercial predators. However the major Search Engines have so far chosen not to teach their crawlers to read the ACAP language. Their motives appear mixed but copyright holders everywhere must actively seek the support of Government to hasten the adoption of ACAP as the vital method to safeguard copyright material by giving online © notice of permission to every digital machine which wants to enter.

As one sets out an argument for the future it is sometimes prudent to review the past to avoid proposing self serving mechanisms or mere commercial interest.

Remember how we got here?

Three hundred years ago, in 1709[4] the English Queen Anne gave her name to an:

“Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies….Whereas Printers Booksellers and Other Persons have of late frequently taken the Liberty of Printing, Reprinting  and Publishing or causing to be Printed, Reprinted and Published such books or other Writings without the consent of the Authors or Proprietors of such books and writings to their very great detriment and too often to the Ruin of them and their Families…”

In 1777, Beaumarchais founded the first French Society of Authors to promote the recognition of the rights of authors to profit from their Works. In the 1780s, Noah Webster was anxious to protect his rights in The American Spelling Book…

These are crucial rights not mere commercial properties. Men and women who produce creative work need the incentive to write or report or comment. There may be an intellectual or moral or spiritual reward but they cannot live by bread alone. They need financial reward too. So protection and promotion of their rights is essential in any civilised society. Indeed in order to emphasise just how crucial Intellectual Property Rights are, more than 300 publishers from all over the world have signed the Hamburg Declaration which opened for signature in 2009. It declares:  “…universal access to publishers’ services should be available but… we no longer wish to be forced to give away our property without having granted permission”[3].

In a world that is experiencing the greatest, fastest technological changes ever, let no man impose unwise or damaging or, worse perhaps, just easy solutions on that part of the creative world which feeds not only our minds but helps build our homes, cook our food, print our books and shape our very society. Free creative dialogue is a corner stone of the whole edifice. We must keep it safe.

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Angela Mills Wade

Executive Director

The European Publishers’ Council

www.epceurope.org

www.the-acap.org

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BIOGRAPHY Angela Mills Wade –

Executive Director, European Publishers Council

Since 1991 Angela Mills Wade has been the Executive Director of the European Publishers’ Council (EPC), a high level group of Chairmen and CEOs of Europe’s leading media groups representing companies with newspapers, magazines, online publishing, journals, databases, books and broadcasting.  Since its formation the EPC has been communicating with Europe’s legislatorson issues that affect freedom of expression, media diversity, democracy and the health and viability of media in the European Union.

Angela currently holds a number of industry and public appointments:

• Chairman, UK Publishers Content Forum

• Member of the UK Government’s Legal Deposit Advisory Panel

• Joint Chair (with the British Library) of the Joint Committee on Legal Deposit

• Director and Member of the Project Board of ACAP (Automated Content Access Protocol)

• Member of the External Advisory Board to Loughborough University’s Department of Information Science

• Vice-Chairman of the European Advertising Standards Alliance and Chairman of EASA’s Media Committee

• Member of the European Commission’s Expert Group on Media Literacy

• Chairman of Europe Analytica, an independent consultancy company based in Brussels

During her earlier career, Angela was the Head of European Affairs and Special Issues at the UK Advertising Association (1989 to 1991); European Executive for the ITV Companies’ Association (1983 to 1987) and Assistant European Executive at the Retail Consortium (1980 to 1983).  She represented these bodies on the Boards of their counter-part European level associations. Between 1977 and 1980 Angela worked for Davum Steel and Total Oil in London and for Forex Neptune in their Paris Office.

Angela is married with two children.

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[1]http://ec.europa.eu/avpolicy/docs/other_actions/col_2009/reflection_paper.pdf

 

[2] www.the-acap.org

[3]http://www.epceurope.org/issues/Hamburg_Declaration_on_Intellectual_Property_Rights.pdf

[4] 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.