Laurence Kaye on Digital Media Law

Creativity, Internet and Politics - biggest opportunities and threats

Dear reader

I recently took part in a session at the London Book Fair organised by the Publishers Association on 'Creativity, Internet and Politics'. Chaired by the Publisher Association's CEO Richard Mollett, the panel - me, Simon Milner from Facebook and Tony Burke from Unite - answered two questions: what is the single most exciting opportunity and the single greatest concern posed by the development of the digital economy?"

 Reading David Cameron's paeans of praise this week to UK small businesses, and with the forthcoming Election in mind, I thought I'd share my answers with you.

  Biggest opportunity?

The European Commission is certainly excited about the digital economy's potential. Its recent Factsheet quoted 350b euros of additional growth in the digital economy. In the UK, we have huge talent and skills in the creative industries as well as global demand for English language content and services.

Notwithstanding the dominance of major platforms, I think the single most exciting opportunity in the UK is for authors, artists, performers and small businesses (SMEs) in the creative industries to exploit   the potential of the internet, web and mobile products and services.

 Why such potential in the SME sector? At the start of 2014, small firms accounted for 99.3% of all private sector businesses in the UK, 47.8% of private sector employment and 33.2% of private sector turnover. Small and medium sized enterprises employed 15.2million people and had a combined turnover of £1.6 trillion. Of all businesses, 62% (3.3.million) were sole proprietorships, 29% (15 million) were companies and 9% (460,000) were partnerships. (source: Dept. for Business Innovation & Skills).

 But what makes the new ecosystem for digital works and content is an attractive environment for the SME sector? I think there are five factors which illustrate why.

1. In an intellectual property-centric world, small enterprises with the necessary skills to commercialise creativity through financing, partnering and marketing in an agile way can thrive - think, for instance, of new ways of financing such as crowd funding.
2. The Cloud and collaborative technologies enable small businesses to scale up without large scale internal infrastructure.
3. SME's can engage directly with consumers and be discovered via social media platforms.
4. The new ecosystem is made up of partnerships and collaborations, often between the large platform at one end of the spectrum and individual creators and small businesses at the other end.
5. Small businesses can go direct to consumer via platforms.

None of this is easy, but the opportunities are there to be grasped.

 Biggest threat? 

My single biggest concern is that we do not invest enough in developing the infrastructure and skills needed to realise this potential and, instead, look for solutions to non-existent or exaggerated problems and barriers.

The key to unlocking the digital economy's  is having the necessary infrastructure and business skills. The greatest needs are in digital marketing, technology, data analysis, financing and the ability to create and implement innovative business models and deals based on intellectual property. Building these skills requires investment in education and training.

Instead, transforming copyright is often presented as the 'magic bullet' to realising the market's potential. That is not to say that some adaptation may be needed provided it is evidence-based. The most frequently cited charges against copyright, at least in the UK and Europe, are:-

1. It locks up ideas and so inhibits innovation, creativity and sharing.
2. The 'Fair use' defence in US copyright law, especially the notion of 'transformative use', has allowed new digital businesses to flourish n the US in ways that European copyright law does not.
3. Copyright law is based on territoriality whereas the Internet is a global medium, and as a consequence is inherently unable to adapt.
4. Copyright is simply to complex in a 'B2C' and 'C2C' world.

Each charge raises a number of complex issues but time and space only allows a 'top line' response to each. In short, I think copyright is 'not guilty on the first three charges but does have a case to answer on the 4th charge.

As regards the first, the 2010 case of Allen vs Bloomsbury & J K Rowling shows that, in the Court's words, "[Copyright] does not extend to clothing information, facts, ideas, theories and themes with exclusive property rights."

On count 2, the differences between the US 'fair use' defence, and, taken as a whole, the various individual copyright exceptions found in European copyright law, are much smaller than may appear. It is true that the first 'fair use' factor, which relates to the purpose and character of the use, including whether the use is 'transformational' in creating something new, does give the US courts flexibility. But to make a fair comparison one must compare that with numerous EU exceptions, including for parody, as well as the extensive rulings of the European Court of Justice on the issue of exceptions.

On count 3, there are books on this subject. Suffice to say that global licensing solutions are perfectly feasible within the existing framework and, in any event, a global copyright law would not, of itself, prevent licensing by territory. Furthermore, legal principles on free movement of  goods and services provide a legal check on copyright.

On count 4, there is a case to answer. Copyright law is complex and the management of copyright, including gaining permissions to re-use, is not easy. But there are ways in which technology can hide copyright's complexity and automate rights management. That  brings us back to the importance of investment in the infrastructure. In that context, the work of the Copyright Hub is important, about which more soon.

From me and my colleagues at Shoosmiths,@shoocreative, enjoy your Bank Holiday weekend.

Regards

Laurie Kaye

 

Rights in databases: IP rights 0: Contracts 1

Dear reader

Apologies for the rather cryptic title of this post which concerns this month's decision of the European Court of Justice in Ryanair Ltd vs PR Aviation BV. This goes back to 2010 and Ryanair's complaint to a Dutch Court about PR Aviation 'scrapping' the Ryanair database. PR Aviation operate a price comparison and booking site for flights, for which purpose it scraped data from the Ryanair website.

The case illustrates that in an age of 'machine to machine' communications, contracts and licences may trump intellectual property rights.

Ryanair argued before the Dutch Court that (1) PR Aviation's webscraping infringed its copyright and/or database right (also known as the) derived from the Directive for the Legal Protection of Databases and (2) that PR Aviation also breached the terms of Ryanair's website which state that "the use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes ('screen scraping') is prohibited unless the third party has directly concluded a written licence agreement with Ryanair...."

In fact, Ryanair lost on (1) before the Dutch Courts which decided that the scrapped data did not benefit from copyright protection under the Database Directive, nor did it meet the 'substantial investment' test under that Directive to qualify for the database right protection.

The single issue decided by the CJEU was whether the freedom to use such a database can be controlled by contract or whether freedom to contract is overriden by the Direcctive.

The Database Directive gives the 'lawful user' of a database the right to use substantial parts of a database without requiring the consent of the owner for specified purposes, and thus without infringing either the copyright or database right. For example, the 'lawful user' can extract or re-utilise the database's contents without requiring consent i.e do the things.... " which is necessary for the purposes of access to the contents of the databases and normal use of the database"."

The Directive goes on to state that any contractual provision which overrides these 'carve outs' to copyright and database right are null and void.

The point decided by the CJEU was this: as the Ryanair dataset scraped by PR Aviation's search engine was not protected by copyright or database right - because it did not meet the thresshold for legal protection - the provisions in the Database Directive which rendered null and void contractual limitations on the 'lawful user's' right to use the database did not apply.

So the result is that freedom to contract wins on issue (2) - The restriction in Ryanair's website terms against web scraping were not overriden nor rendered null and void by the Database Directive.

This decision may be significant as we move increasingly to the use of 'machine readable' permissions (aka licence terms) which attach the use of content and effectively 'travel with' that content, thereby communicating the ways in which that content may be lawfully used. That's actually good news because in a world of digital distribution, it's in everyone's interests to use technology to make it easy to find, clear and use content. 

In my view, this doesn't mean that rights owners will or can use contracts to 'lock up' content - bear in mind this decision relates only to data in a database and not to to copyright content sitting in databases, Rights owners don't want to 'lock up' content. Rather, they make it available across a multitude of platforms but on terms that where it is protected by copyright, there is an infrastructure in place which delivers that content to consumers and assures rights holders, from creators onwards, that they get remunerated where they of a fair return on their creative and economic investment.

There's a good analysis of the Ryanair case on the IPKat Blog here.

Have a good week.

Laurie

 

 

Copyright & Innovation - let's get this right

Dear reader

2015 is set to be the year of copyright debate. My friends at the IPKat Blog describe here how things are hotting up, following the European Commission publishing its Report on responses to last year's Copyright Consultation, and, as IPKat reports, the  EU Commissioner for Digital Economy and Society, once again made clear on Twitter that having “modern copyright rules” is one of the key goals for 2015.

You'll know how quickly the copyright debate becomes polarised. But I'm going to take the risk of being labelled 'luddite' when I take issue with the charge that copyright, at least in its current form, is a barrier to innovation and creativity or, put in another way, that reforming copyright law will, in and of itself, unleash a torrent of pent up innovation. That's certainly the charge laid at copyright's door by 'Copyright for Creativity' in their Copyright Manifesto and in the European Parliament's Committee on Legal Affairs Draft Report on the Copyright Directive.

Often, the real challenge is nothing to do with copyright but is about finding viable business models that deliver the consumer what he or she wants whilst ensuring a fair reward for the creator of that content. This is apparent in the current debate about streaming vs. downloads in the music industry, and their respective implications for artistes, and in the publishing industry about subscription vs. sale of e-books.

That isn't to say that the current copyright framework is perfect or should not be adapted in certain specific cases where evidence demonstrates the need for change. But I do challenge the assumption that copyright lawe in its current form is a barrier to innovation. A willingness to take risks, technological expertise, innovative business models and toleration of failure - these are the foundations on which Silicon Valley and Israel's 'Start-Up' nation have been built and which exist here in the UK too.

There are plenty of instances of innovation within our current framework. Look, for instance, at how publishers are making content available under open licences via API's. Look at the proliferation of new platforms for self-publishing.  

So let's have that debate about copyright. But let's make sure that it is a rounded, evidence-based and multi-dimensional.The European Publishers Council's 2014 Vision Paper entitled 'From Vision to Reality: Copyright Enabled on the Network', to which I contributed, presented a framework based on '3 digital elements' - (1) technology, linking the different parts of the digital content networks together in a seamless, machine readable way; (2) an enabling copyright framework and (3) practical and viable, user-relevant solutions, including innovative licensing.

The key point made in the  EPC's paper is that realising the full potential for the digital content does not depend on any one element by itself. Rather, it is their combination. With initiatives like the Copyright Hub, the future lies in completing the technical infrastructure so that finding, clearing and consuming copyright content is just one click away, and of course in a way which that accomodates uses allowed under exceptions.

Have a good week,

Laurie Kaye

 

Google News - hasta la vista

Dear reader

I've written on a number of occasions over the years on how the liability position of Google and other intermediaries is shifting from a simple "I'm just a host, so don't look to me" to one of increasing responsibility.

In the Court of Justice of the EU's decision in Google Spain and Google, Inc vs. AEPD (Spanish Data Protection Authority) and Snr. Gonzalez, the Court was clear that Google, Inc was a 'data controller' and so within scope of European data protection law.

Yesterday, Google announced that it is shutting down Google News in Spain, responding to the forthcoming introduction - Happy New Year Google, on 1/1/15 - of the 'canon AEDE' which introduces a new statutory copyright limitation which allows the use of 'press snippets' but carries a price tag for intermediaries in the form of fair compensation. In fact, this follows on the heels of a change in German copyright law whose legal form is different but whose effect is the same.

Not all press publishers welcome the legal changes as they fear Google switching off the service may result in a loss of traffic to their sites. But others warmly welcome the change and say it's about time that Google and other intermediaries started paying for the use of their content.

As it happens, I wrote on article on this subject which was published by Intellectual Property Magazine this week. So if you'd like to drill down into the detail, you can read it here, made available courtesy of the magazine:

Download 034-035-IPM_Dec2014_Jan2015-FO2

As with many digital media relationships, partnership and collaboration is going to be the way forward - 'win, win' vs. 'win, lose'.

As this will be my last post of 2014, I'd like to wish all my readers Season's Greetings and very happy New Year.

Regards

Laurie Kaye

A Torrent of Copyright Infringement

Dear reader

Back in the day - well, around 1998 to 2001 when the E-Commerce Directive 2000/31/EC and the  InfoSoc (aka Copyright) Directive 2001/29/EC were being negotiated almost in parallel - a lot of time was spent discussing the role of intermediaries such as ISPs in tackling online infringement. The core challenge was balancing a 'hosting immunity' under Article 14 of the E-Commerce Directive with the need for intermediaries to play an effective role in dealing with online infringement hosted on or accessed via their servers.

The outcome was Article 14 of the E-Commerce Directive and Article 8.3 of the InfoSoc DIrective.  Whilst ISP's as "hosts" have an immunity under the  for hosting illegal content on their servers, Article 8.3 of the InfoSoc Directive provides that "Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right."

Article 8.3 was transposed into UK Copyright law by section 97A of the UK's 1988 Copyright Act, as amended. There have been a series of cases in the UK brought under this section by record companies, on their own behalf and in a representative capacity on behalf of members of the BPI and others, seeking website blocking orders against websites using Bittorent peer-to-peer file-sharing protocol. 

Furthermore, 97A has recently been used to seek a website blocking order to combat online trade mark infringement - see Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch)

The latest case on the copyright front line is 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors [2014] EWHC 3444 (Ch) (23 October 2014). It's a short and very lucid judgment and an excellent way to get up to speed on where the law stands on this issue. Four matters must be established in order to be granted - (1) that the Defendants are service providers; (2) that users (i.e. consumers) and/or the operators of the target websites infringe the Claimant's copyrights; (3) that users and/or operators of the target websites use the defendants' (i.e. ISPs') services to do that; and (4) that the Defendants have actual knowledge.

Mr Justice Arnold had no difficulty in finding all four matters established. Paragraphs 11-23 of the judgment are particularly worth reading, in which he analyses whether users and/or operators of the target websites (i.e. the Bittorent sites) infringe the Claimant's copyrights. He finds that users infringe by copying and communicating to the public the Claimant's works and he also finds that the website operators infringe by communicating those works to the public.

The question of who is the "public" was considered in the CJEU's decision this year in Svensson. In that case, the CJEU decided that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. Essentially, the logic was that as the newspaper material was already freely available on the newspaper's website, a link to that site was not a communication to a "new public", because putting material without restriction (e.g. behind a pay wall) was communicating it the whole world. Once you have 'communicated' a copyright work to the whole world, by definition there cannot be a communication to a new public.

However, in 1967 Ltd & Ors vs. BSB, Mr Justice Arnold said that in the case of the 13 target websites, it is a communication to a new public, "...which is to say a public which was not considered by the rightsholders concerned when they authorised the original communication or other act of dissemination of the recordings."

This case illlustrates the practical importance of Article 8.3/section 97A in combatting online IP infringement, both as regards copyright but trade marks too.

Have a good week,

Laurie Kaye

 

 

 

 

Has Copyright Any Future Role in a World of Disruptive Publishing?

 Dear reader

I remember taking part in a debate at 'Cyberia', one of the first Internet cafes - remember them? - in 1994 about whether the Internet was killing copyright or making it redundant. As I recall, the score was one all. Votes for copyright disappearing down a black hole in Cyberspace were balanced by those in support of a photographer who saw the new medium as an exciting way to market his photographs to a global audience and get paid for it and that copyright was integral to those transactions.

Fast forward 20 years and I'm looking forward to taking part in a debate at the Stationers Company, the first home of copyright, on Monday October 20th at 6:30pm on a similar theme. The debate will be led by publishing industry guru David Worlock, Dominic Young, CEO of the Copyright Hub and me, digital media lawyer and partner in national law firm Shoosmiths.

We're expecting a lot of audience participation and you're warmly invited attend. Booking details can be found in the attached flyer - Download Stationers_Copyright_Event_20.10.14. So if you're coming, please either complete the order form in the attachment or go online to the Stationers’ website, here. In addition to the lively debate and discussion, they'll be some excellent networking.

 Whilst the headline theme might suggest that things haven't moved on that far, in fact we've moved a long way from an existential copyright debate to a focus on practical. consumer-driven solutions. A great example is the Copyright Hub's work to fastrack the development of standards to make licensing simpler or, as I like to put it, moving rights management from the filing cabinet to the network.

Alongside that, there is a lot of action on the legislative front we have seen an expansion to copyright exceptions here in the UK with the introduction of new exceptions for private copying, quotations and parodies and updating for exceptions for non-commercial research, education libraries.

 That said, European Commission Report on the responses to the Public Consulation on the Review of the EU Copyright Rules published earlier this year, whose legislative fate depends on the new Commission's agenda, shows the breadth of copyright issues that remain on the table. They include territoriality, the development of pan European licensing, the scope of exceptions and the continuing discussion about whether to introduce a single European copyright title.

 Furthermore, alongside encouragement for improved licensing and innovative business models, Enforcement of IP Rights, especially as regards commercial piracy vs. consumer infringement, remains firmly on the agenda.

So there's lots to discuss. Hope to see you on October 20th.

Meanwhile, have a good week.

Laurie Kaye 

The '3 Digital Elements' - a balanced future for copyright

 Dear reader

Things will be hotting up soon on the copyright front, with the European Commission's white paper on Copyright due at the beginning of July.

In the meanwhile, I'm really pleased to welcome publication by the European Publishers Council (EPC) of its new vision paper on copyright, entitled "From Vision to Reality: Copyright Enabled on the Network" to which I was a contributor as EPC's copyright advisor. You can find a link to the Press Release, the Paper itself and an Executive Summary here.

The paper has been presented to EC Vice President Michel Barnier with specific recommendations that are designed to help realise the full potential of the media and publishing ecosystem to the benefit of creators and every internet user.

The paper is built around '3 digital elements': the technical infrastructure, specific parts of the legislative framework to be adapted in line with digital media developments, and innovative practical solutions, based on licensing and clear guidelines to promote transparency. The key point is that none of those elements, in isolation, is the solution. That lies in the 3 elements in combination.

Having declared my interest, I am confident that this paper will make a significant contribution to the copyright debate in Europe and beyond, by looking at the challenges from all parties' perspectives. It demonstrates the role that technology will increasingly play in moving rights management fully out of the filing cabinet and onto the network; it pinpoints where there is a case for adaptation to the legal framework and puts forward licensing and other solutions.

So well worth a read!

Have a good week.

Regards

Laurie

Copyright, fair use and the advance of culture

Dear reader

A couple of things I read today awoke me from my blogging slumber, and prompted me to post. First, I heard that the European Commission has sensibly extended the date for submitting replies to its  Consultation on EU Copyright Rules from February 2nd (which was ridiculously tight) to March 5th. The other was reading Dr Rimmer's excellent post on the fair use doctrine under US copyright law on TechDirt.

The problem with a lot of the debate about copyright is that it becomes polarised. It's 'big media' vs. the 'little guy'.. It's 'closed copyright, a barrier to innovation' vs. 'open Internet, cultural advancement and freedom of expression'. It's bad guy, good guy. Just to be clear, I'm not accusing Dr Rimmer of that kind of simplified view. It's an excellent piece. It's just that much of the copyright discourse elsewhere gets into that kind of language. It's also not unusual to read that the absence of a 'fair use' doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation.

No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian specie, capable of adapting to the network. So if we are going to move into a more nuanced debate, I think it's worth making four basic points:-

Point 1: Idea v. expression - a really important distinction

This is a really important distinction. Copyright does not protect ideas, and ideas are the currency of intellectual creativity.

The World Intellectual Property Organisation (WIPO) administers the Berne Convention, which underpins the international copyright framework. There are 167 contracting parties, including USA, China, EU member states, Asia-Pac countries and many more. (See full list here).

Article 2 of WIPO's Copyright Treaty states that: "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." A recent illustration of this distinction was the decision of the UK's Court of Appeal in SAS Institute Inc. vs. World Programming Limited, heard in November 2013. The case was brought by the the software company SAS against a competitor World Programming Limited. In short, the Court re-affirmed that copyright did not protect the SAS software manual because it described the wat the SAS software worked. It contained compilations of formulae, keywords, comments etc. which were, in effect, descriptions of functionality. They were on the 'idea' side of the line and therefore not protected. It is only the expression of an idea which is protected.

 Sure, this was a case about computer software and not a novel. But the principle is the same. It is only the expression of the author's intellectual creation which is protected. So no-one is prevented from taking the underlying ideas.

Point 2: Insubstantial parts aren't protected

It's a basic part but all national copyright laws that the taking of an insubstantial part of a work is not an infringement at all. Sure, there's lots of case law applying both a qualitative and quantitative tests to this but the principle is an important one.

Point 3: Fair use is not unique

 Dr Rimmer's piece illustrates that fair use is a flexible doctrine in US copyright law. And much is written about the 'transformative use' element of the fair use defence. I am not knocking fair use but the balance between the exclusive rights given by copyright and the public interest is also reflected in the so-called '3 step test' in the Berne Convention which underpins most national copyright laws. The language of the Berne Convention is legalistic and of course pre-Internet. But it does prescribe a boundary between exclusive rights on the one hand and permitted uses on the other, where copyright works can be used under exceptions. That is, "...in certain, special cases, which do not conflict with a normal exploitation of the work; & do not unreasonably prejudice the legitimate interests of right holders". So that does give national copyright laws to allow a wide variety of re-uses by private individuals and public institutions for a whole range of 'public interest' uses.

Point 4: Licences can be part of the solution

A lot of valid criticisms are made about licensing, although things are improving rapidly as collecting societies increase the range of licences they offer and 'direct to customer/consumer' online offerings continue to grow. That said, getting a copyright licence can still be a slow, expensive and frustrating process. That's where technology has a role. Consumers would be frustrated if they put their card in a bank ATM to get some cash, and they got a message back saying "We'll check and get back to you" or didn't respond at all.

That's where technology has a role to play. Getting licensing from the filing cabinet onto the network, through machine readable identifiers, rights expressions and licences takes time, financial investment and cross-industry collobration and time. It easn't easy and it does take time.

And that brings me to the really important point. This is too important to all of us in economic, cultural and social terms to indulge in a 'good guy, bad guy debate'. The beneficiaries of a machine-powered copyright framework are all of us. From individual authors, photographers, composers, illustrators to producers and distributors who add value through to you and me as consumer-citizen.

We owe it to ourselves to have a nuanced, mature discussion about this.

Have a good week

Laurie Kaye

 

 

 

Copyright - Of content, technology and copyright (continued)

Dear reader

I'd be sad if - as is quite possible - you hadn't noticed an absence of posts from me since October. But if you have been wondering, my humble apologies. I plead pressure of client work.

Before I get into the subject matter of this post, together with my friends Hugh Jones and Florian Koempel of the Publishers Association, I'm giving a talk on Wednesday December 11 from 4-6pm at Roberts 421 LT, Roberts Building, UCL, immediately followed by a reception in Foster Court, G24, Arts faculty common room. The title is 'Tools, not rules: copyright in the digital age". It's all about the subject of this post. We'd be delighted if you can come and please share this with friends and colleagues. (Ack to my friend Angela Mills who coined the phrase).

Anyway, the title of my last post 'Of content, technology and copyright' still remains relevant, as the European Commission have just published its Consultation on the review of copyright rules. It's incredibly very wide ranging and replies have to be in by February 5th 2014, which is a vert short time scale for such a far reaching review. I can do no better than quote my friend Gemma Hersh, Head of Public Affairs at the Publishers Association who wrote:"The results of this consultation will sit alongside the Commision's desk research and the outcomes of the Licences for Europe plenary to inform proposals for a new Commission in April 2014. This is still looking likely to be a White Paper (our favoured approach) rather than concrete legislative proposals that could bind a new Commission, but either way there is much work to be done."

I agree with Gemma. I can't see how the Commission will have a enough time to digest responses from the consulation and turn them into legislative proposals for the Commission to consider.

As you would expect, a number of the questions in the consultation are about copyright licensing and pan European services. After all, the raison d'etre of the Commission is the single market. But others go to the heart of copyright with questions such as "do we need a single EU copyright title?" and, in effect, "is the term of protection too long?". Whoa! In addition, there are a number of technical questions about copyright, including how the 'making available' right works, and whether the principle of 'country of origin', 'country of desination' (or both) should apply. These directly impact on rights clearance.

I'll be writing more about the consultation. Everyone with a stake in copyright will contribute to the debate and, like a giant tug of war, the 'copyright rope' will be heaved in opposing directions with perhaps a little movement here and there.

 

My own view is that over the next few years, we must focus on streamlining licensing through 'smart, technology powered licensing'. It can overcome the unavoidable complexity of copyright law in a similar way that a few buttons on a 21st century car hides the complexity of the car's electronics from the driver. That said, there is a case for some readjustment to copyright law e.g. around certain copyright exceptions.

 

But this doesn't call for a fundamental re-structuring of the copyright system.

 

Have a good week.

Regards

Laurie Kaye

 

 

 

 

 

Of content, technology and copyright

Dear reader

I hope you enjoyed the weekend. We had a walk on the glorious Ashridge Estate today. Highly recommended; good for mind, body of spirit. Talking of which, I'm off tomorrow to the Frankfurt Book Fair. I'm chairing a session on Tuesday at 10:40 'CONTEC' (yes, Content + Technology), on 'Reader rights: exhaustion (of the legal v. physical kind) and digital re-sale'. I have a great panel so if you're there, do drop by.

I also recently penned a piece for 'CREATe' on that favourite chestnut, "Is the current copyright framework fit for purpose in relation to writing, reading and publishing in the digital age?"

Sometimes you just have to go back to first principles. Here's the piece (short answer: "yes, with improved rights management"):

"This is not a new question. I remember taking part in a debate on the same subject in 1994 at ‘Cyberia’, one of London’s original Internet cafes – remember them? That was four years before Brin and Page published their algorithm for Google’s first search engine and nearly ten years before Facebook, Twitter and social media appeared.

 The fact that we are still debating this subject is revealing. Some people take the view that copyright is a dodo, belonging to a ‘read only’ world that cannot come to terms with a world of linking, sharing, mixing and mashing. From that perspective, copyright has been dying a lingering death since the Internet and then the Web first appeared in the early 1990’s.

I reject that view. Copyright is inherently format and platform neutral. Copyright exists in literary, audio-visual, artistic and other works in whatever digital, analogue or other forms in which they are expressed. It is ideas which fuel creativity and innovation. Copyright does not protect ideas, but only their expression.

 Change driven by ‘digital’ - technologies, networks, platforms and tools – is complex and multi-factorial. It affects everything, from the law and business models through to social, cultural and politicalnorms. These changes aren’t synchronised. Technological change outpaces everything. It raises questions for others to answer. Sometimes the law seeks to anticipate or at least keep pace with technological change. In other cases, it is playing ‘catch up’. That’s often the job of the courts. For instance, the ase of creating and re-distributing perfect digital copies of copyright ontent raises questions about how the laws of copyright and free movement of goods and services are reconciled when applied to online marketplaces for re-owned digital content.

 The point is that working through these issues and finding balanced solutions takes time. Perhaps the immediacy and instantaneous nature of online communications makes it hard for us to have atience. The fact that we are still working on solutions in the copyright field doesn’t mean that those solutions can’t be found. Rather, adaptation and adjustment simply takes time.

 I am not complacent nor am I arguing that everything in the copyright garden is perfect. In the UK, a number of changes to copyright exceptions will be introduced, following the Hargreaves Review. At a UK and European level there is a framework in place for orphan works. There are also a number of initiatives to improve rights management, including the Copyright Hub here in the UK. And that highlights the biggest challenge: how to make the management of copyright permissions as easy as ‘click to buy’ when you shop online.

 The copyright framework is fundamentally Darwinian. It never stands still. It is always adapting. Sure some would prefer to dispense with it or to dilute it through ever wider exceptions, compulsory licences and a shortening of the term of protection for copyright works.

 But readers need professional authors of literary, artistic and audio-visual works to create works which they can enjoy in whatever form they want. Copyright is the facilitator of the value chain that exists between authors and readers. For everyone in between, including publishers, their reward depends on the value that their authors on the one hand and the readers on the other perceive them to add. A perfectly Darwinian solution!

 So the copyright framework is and will continue to adapt, whatever new technologies and indeed forms of work. In my view, the real focus of work is not the framework per se but the management of rights, especially through the ‘machine to machine’ communication of rights."

Have a good week,

 

Laurie Kaye
Head of Publishing & Digital Media

Shoosmiths LLP