A Position Paper by Laurence Kaye, Head of Publishing & Digital Media Shoosmiths LLP
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 political norms. 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 ease of creating and re-distributing perfect digital copies of copyright content raises questions about how the laws of copyright and free movement of goods and services are reconciled when applied to online marketplaces for pre-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 patience. 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.
Laurence Kaye is a partner in Shoosmiths and leads the firm’s publishing and digital media team. He is a recognised expert lawyer in the fields of publishing, digital media, intellectual property and technology law. He advises publishers, media and technology companies, film and TV producers, authors and brand owners on e-commerce and intellectual property exploitation in digital and “offline” forms. He was the lead external lawyer on the development of Pottermore.com – J K Rowling’s vision for the Harry Potter books online. Laurence combines this cutting-edge legal work with strategic and policy-related work in the field of copyright and online law. In his capacity as copyright adviser to the European Publishers Council, he has advised and been actively involved on many key Directives.
He is an active blogger on digital media law at http://laurencekaye.typepad.com.