First published on The Bookseller on 28th March 2013.

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In his column published in The Bookseller on 15th February, Richard Mollet, chief executive of the Publishers Association, takes aim at CREATe, a new academic research centre investigating “copyright and new business models in the creative economy”.

According to Mollet, at least three things are wrong with CREATe: (1) The academics involved in CREATe are prejudiced in favour of copyright reform; (2) CREATe’s research programme ignores successful British companies; (3) More generally, academic research is unlikely to be helpful for creative businesses because academics lack direct experience of working in the sector. I will address these points in turn.

Copyright reform

(1) Do we need copyright reform? It is indeed a premise of the establishment of CREATe that the digital environment is challenging copyright law as we know it. Over the past 20 years, much of the lobbying for copyright reform has been led by organisations representing established content businesses, such as the British Phonographic Industry and the Publishers Association. And largely, their project has been a legislative success. We have seen the WIPO Internet Treaties of 1996 (implemented in Europe with the 2001 Information Society Directive), which created a new exclusive “making available” right, and added a second layer of protection for copy protection and rights management technologies.

Penalties for infringement and circumvention were tightened, bringing the consumer into the ambit of criminal law. In 1998, the US extended the term for works of corporate ownership (so-called “works for hire”) from 75 years to 95 years, and the EU followed with the Term Extension Directive of 2011, extending the copyright term for sound recordings from 50 to 70 years. In 2010, the UK passed the Digital Economy Act that contains complex provisions that for the first time involve intermediaries, such as Internet Service Providers, in the enforcement of online infringement of copyright.
All these interventions went in one direction—towards the vision of a closed circuit of licensed content that would allow the creative industries to continue business as usual. The focus of legislative reform was firmly on stronger rights, and controlling unruly consumer behaviour.

Looking at the state of the music and publishing industries today, this strategy does not seem to have delivered. The British record industry has withered, EMI was sold, and now it appears to be the publishers’ turn. It is arguable that by focusing on enforcement, the copyright lobby overlooked the real drivers of change, which turned out to be the giant digital platforms that became an unavoidable part of the chain to the market. Bargaining power indeed is shifting, and copyright law may be implicated in ways not anticipated. New thinking is required. CREATe’s research agenda considers copyright afresh, not as an end in itself, but in the context of business models.

British success story

(2) What does the CREATe research programme offer to UK creative businesses? Undoubtedly, the publishing industry is a British success story. Of the more than 100 members of the Publishers Association, around a quarter have more than 250 employees (and are thus not SMEs). This still leaves large numbers of small firms, which in creative industries such as music or games are the sector’s main employers. From a policy perspective the key distinction, however, is not between large and small companies but between “incumbents” and “insurgents”. They speak with different voices, and face different challenges. Mollet’s instincts are with the incumbents, and there is nothing wrong with that. Still, incumbents need happy customers as much as anyone, and insurgents are usually much better at sensing new needs or disaffection. Where there are large swathes of unhappy customers—for example in relation to research publications (witness the data mining debate)—the reflex to reach for stronger rights and enforcement may have similar results as it did in the music industry. We don’t know but we can find out. This is what research is about. This leads us to the third question, why do we need academics to do it?

Research

(3) Mollet peppers his column with a range of pejorative terms: “academic gifthorse”, “collection of intellectuals”, “characters” who adopt views “before a single stroke of work has been done”, their conclusions “unsullied by contact with the commercial realities of life”. The voice of the cynic seems to assume that there can be no independent research, and the voice of the authoritarian resents dissent. This bleak outlook on the academic world is a break with the great tradition of the Publishers Association, commissioning copyright scholarship that is capable of reflecting on the trade, as in the eight magisterial volumes of copyright cases produced by Evan James MacGillivray for the PA between 1905 and 1949. More recently, academics have campaigned against a change in the law (Clause 65 of the Enterprise and Regulatory Reform Bill, increasing the term of protection of copyright in mass-produced designs from 25 years to the life of the designer plus 70 years) that might harm fragile publishing interests (e.g. books containing images of artistic designs).

At the launch conference of CREATe in February, contributors included musicians, labels, collecting societies, authors, publishers, games developers, broadcasters, and digital intermediaries, with a range of mini case studies that reflected on the transition from analogue to digital, as well as “born digital” ventures. The diversity was truly impressive. CREATe is open for business.

Martin Kretschmer is Professor of Intellectual Property Law at the University of Glasgow, and Director of CREATe (create.ac.uk)

See Jonathan Band’s post on infojustice.org, reproduced below:

More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments.

Fair dealing was first developed by courts in England in the eighteenth century, and was codified in 1911. Fair dealing became incorporated into the copyright laws of the former British Imperial territories, now referred to as the Commonwealth countries. Over the past century, the fair dealing statutes have evolved in many of the Commonwealth countries, and increasingly resemble the fair use statute in the United States. Thus, although fair dealing is generally considered to be less flexible and open-ended than fair use, this is no longer the case in many Commonwealth countries.

This handbook contains all the fair use and fair dealing statutes we were able to identify.

Download The Fair Use/Fair Dealing Handbook.

Last week (Monday 11 March), Clause 65 of the Enterprise and Regulatory Reform Bill reached report stage, a chance for further scrutiny, in the House of Lords. The Government’s proposes to repeal section 52 of the Copyright Designs and Patents Act 1988, and thereby increase the term of protection of copyright in mass-produced designs from 25 years to the life of the designer plus-seventy years thereafter.

UK IP Professors (including several CREATe academics) have intervened in the debate since last June, arguing that this extension of term might harm fragile publishing interests (e.g. of arts publishers). Professor Lionel Bently of Cambridge University has assisted in drafting several amendments which would shield publishers from the need for licences for reproducing images of designed artefacts. Disappointingly, the amendments were not pressed in the Lords. The proposed amendments are explained in the attached letter to Lords Stevenson and Clement-Jones.

The original intervention in The Times of 31 July, 2012 is reproduced below:

–

31 July, 2012

To the Editor, The Times

Sir,
If enacted, Clause 56 of the Enterprise and Regulatory Reform Bill would repeal section 52 of the Copyright, Designs and Patents Act 1988, so that copyright in the artistic features of mass-produced products will subsist until 70 years after the death of the designer, rather than the present period of 25 years.

One practical effect of the reform will be to make replica versions of classic designs, such as Jacobsen’s Egg chair, unaffordable to many consumers. Also, the creative freedom of future designers will be constrained because of the need to avoid stepping on the toes of their predecessors, which those using images of these designs for illustrative purposes will need to obtain permission. These social costs are clear, yet there is no evident public benefit from the reform.

The reform has been justified as a response to Case C-168/08, Flos v Semararo, where the European Court of Justice found that transitional provisions in Italian law that left the Arco lamp unprotected contravened the Designs Directive 98/71. The UK did not intervene and thus the Court was not informed that during the passage of that Directive, the UK secured permission to retain the 25-year term. Rather than repeal section 52, the Government should take the earliest opportunity to clarify that this freedom remains intact.

In any case, repeal of section 52 goes well beyond what would be required to implement Flos – member stated remain free to limit the extent of protection of copyright in designs. There has been no consultation on this measure at all: public input would likely produce a more measured response.

Yours faithfully,

Professor Lionel Bently, University of Cambridge
Professor Tanya Aplin, King’s College, London
Professor Ronan Deazley, University of Glasgow
Professor Graeme Dinwoodie, University of Oxford
Rt Hon Professor Sir Robin Jacob, University College, London
Professor Martin Kretschmer, Bournemouth University
Professor Hector MacQueen, University of Edinburgh

The CREATe Launch and inaugural conference took place on January 31st & February 1st, 2013 in Glasgow. Media buzz here. Videos and images here.

What is CREATe?

CREATe is the RCUK centre for copyright and new business models in the creative economy. With an ambitious programme of 40 projects delivered by an interdisciplinary team of academics (law, cultural economics, management, computer science, sociology, psychology, ethnography and critical studies), CREATe is a pioneering academic initiative designed to help the UK cultural and creative industries thrive and become innovation leaders within the global digital economy.

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See Bernt Hugenholtz’ post on Kluwer Copyright Blog, reproduced below:

The European Copyright Society, a group of prominent European scholars, today issued an opinion on the Svensson case (Case C-466/12), which is currently before the European Court of Justice. The case, which was referred to the Court by the Swedish Court of Appeal (Svea hovrätt) on 18 October 2012, raises the important question whether setting a hyperlink to a copyright protected work amounts to ‘communication to the public’ within the meaning of Article 3(1) of the Information Society Directive.

In a detailed, 17-page opinion the European Copyright Society argues that the answer to this question should be a resounding no. According to the Society, “The importance of this particular reference should be evident to the Court. Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the Internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another. […] The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages.”

Following an in-depth analysis of the right of communication to the public, the Society concludes: “If hyperlinking is regarded as communication to the public, all hyperlinks would need to be expressly licensed. In our view, that proposition is absurd. “

The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest.