The perils of a "use now, pay later" approach to intellectual property

Andy Williams, Managing Director of ITN’s licensing arm, makes his argument for a robust and fair copyright framework.

This article is a reponse to Benjamin White's piece "Copyright for a digital age", which recently appeared on the New Statesman blog.

It’s hard to get excited about copyright but the argument of what constitutes fairness in copyright and how intellectual property law can stimulate the economy is now the subject of Parliamentary and industry debate concerning controversial measures in the Enterprise & Regulatory Reform Bill and an impending announcement from the Intellectual Property Office (IPO).

On one side, rights holders like ITN are deeply concerned about the proposed dismantling of a robust intellectual framework that underpins significant investment in content creation and preservation. Meanwhile public bodies such as the British Library - whose Benjamin White recently voiced his opinions for the New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation. Whichever side of the fence you’re on, the impact of the decisions made in coming months by Parliament, the Government and the IPO will be enormous.  

A relaxation of copyright law may help the British Library cut down on the time it takes to clear rights and digitise its materials, but the extent of the radical proposals on the table for usage of orphan works, introduction of new and wider exceptions for "free" usage of copyright material, and a scheme for Extended Collective Licensing will go much further than just helping public sector institutions to better serve researchers. The very same measures could stifle actual creation of content in the medium to long term, devastate vast swathes of the creative industries - which employ two million people and contribute 6 per cent to GDP - and permit those who don’t invest in UK original content to freely benefit from others’ work.

The creative industries rely on a business model underpinned by a fair and robust copyright framework to discourage and legislate against illegal use. There are quite rightly instances that allow for free use of copyright material – for example an exception to copyright for news reporting is vital to freedom of speech and expression; but the IPO has proposed that a wide range of free usage could be introduced in instances of parody, education and a particularly grey area of "quotations". The policy statement confirming which additional exceptions they plan to implement is due before the end of the year. However, in calling for a lowering of the barrier for free usage of intellectual property, technology companies, public bodies and consumer groups may well find that if they get their wish then the content they want to use freely rather than pay a licence for will simply dry up or not be digitised for mass usage. It’s a commercial reality that if there isn’t a financial incentive then investment in content creation and preservation will suffer.

In addition, proposals for Extended Collective Licensing may seem attractive in offering a time-saving rights clearance mechanism for the British Library, but the opt-out nature of the scheme and scant detail could lead to organisations springing up to license others’ content on their behalf without their knowledge and consent. There are fears about lack of transparency, inappropriate use of sensitive material, undercutting of prices and what US photography groups describe as a “firestorm of international litigation”. It’s bizarre that this is seen as necessary when a Copyright Hub is being developed by Richard Hooper and companies are already investing millions to digitise content and put it online to make it easy to find and be licensed.  

There are, however, potential benefits to establishing a way to license orphan works – whether through UK legislation or implementing a recent EU Directive - as this could free up content that would otherwise lay dormant; but the system must protect creators’ rights by having appropriate safeguards such as clear rules on what constitutes a diligent search to find the owner of a particular piece of intellectual property. A "use now, pay later" approach as advocated by Benjamin White concerns me greatly as less scrupulous organisations could see an orphan works system as a means simply to avoid paying for a licence.

It’s also worth thinking back to the origination of all of these proposals – the Hargreaves Review, which hailed evidence-based recommendations that such measures could help grow the economy by £5.5bn per annum. ITN, along with many of the other 471 respondents to the subsequent IPO Consultation on Copyright, has helped to show that this projection simply doesn’t stack up. Rather, unpicking our copyright regime will take money out of the UK economy as inward and domestic investment and syndication of original content is stalled or cancelled.

The risk becomes even more urgent when you consider that the copyright measures as currently drafted in the Enterprise & Regulatory Reform Bill before the House of Lords would enable much of this sea-change to happen by secondary legislation. Whether in favour of a change in copyright law or against it, no one should want fundamental alterations to be made without full parliamentary scrutiny and debate when there is so much at stake for public bodies and the commercial sector alike.

Andy Williams is Managing Director of ITN’s licensing arm ITN Source

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French presidential election: Macron and Le Pen projected to reach run-off

The centrist former economy minister and the far-right leader are set to contest the run-off on 7 May.

Emmanuel Macron and Marine Le Pen will contest the run-off of the French presidential election, according to the first official projection of the first-round result.

Macron, the maverick former economy minister, running under the banner of his centrist En Marche! movement, is projected to finish first with an estimated 23.7 per cent of the vote, putting him marginally ahead of Le Pen. The leader of the far-right Front National is estimated to have won 21.7 per cent, with the scandal-hit Républicain François Fillon and the left-winger Jean-Luc Mélenchon tied for third on an estimated 19.5 per cent each. Benoît Hamon, of the governing Socialist Party, is set to finish a distant fourth on just 6.2 per cent. Pollsters Ifop project a turnout of around 81 per cent, slightly up on 2012.

Macron and Le Pen will now likely advance to the run-off on 7 May. Recent polling has consistently indicated that Macron, who at 39 would be the youngest candidate ever to win the French presidency, would probably beat Le Pen with roughly 60 per cent of the vote to her 40. In the immediate aftermath of the announcement, he told Agence France Presse that his En Marche! was "turning a page in French political history", and went on to say his candidacy has fundamentally realigned French politics. "To all those who have accompanied me since April 2016, in founding and bringing En Marche! to life, I would like to say this," he told supporters. " 'In the space of a year, we have changed the face of French political life.' "

Le Pen similarly hailed a "historic" result. In a speech peppered with anti-establishment rhetoric, she said: "The first step that should lead the French people to the Élysée has been taken. This is a historic result.

"It is also an act of French pride, the act of a people lifting their heads. It will have escaped no one that the system tried by every means possible to stifle the great political debate that must now take place. The French people now have a very simple choice: either we continue on the path to complete deregulation, or you choose France.

"You now have the chance to choose real change. This is what I propose: real change. It is time to liberate the French nation from arrogant elites who want to dictate how it must behave. Because yes, I am the candidate of the people."

The projected result means the run-off will be contested by two candidates from outside France's establishment left and right parties for the first time in French political history. Should Le Pen advance to the second round as projected, it will mark only the second time a candidate from her party has reached the run-off. Her father, Jean-Marie Le Pen, reached the second round in 2002, but was decisively beaten by Jacques Chirac after left-wingers and other mainstream voters coalesced in a so-called front républicain to defeat the far right.

Fillon has conceded defeat and backed Macron, as have Hamon and the French prime minister, Bernard Cazeneuve. "We have to choose what is best for our country," Fillon said. "Abstention is not in my genes, above all when an extremist party is close to power. The Front National is well known for its violence and its intolerance, and its programme would lead our country to bankruptcy and Europe into chaos.

"Extremism can can only bring unhappiness and division to France. There is no other choice than to vote against the far right. I will vote for Emmanuel Macron. I consider it my duty to tell you this frankly. It is up to you to reflect on what is best for your country, and for your children."

Though Hamon acknowledged that the favourite a former investment banker – was no left-winger, he said: "I make a distinction between a political adversary and an enemy of the Republic."

Mélenchon, however, has refused to endorse Macron, and urged voters to consult their own consciences ahead of next month's run-off.

The announcement sparked ugly scenes in Paris in the Place de la Bastille, where riot police have deployed tear gas on crowds gathered to protest Le Pen's second-place finish. Reaction from the markets was decidedly warmer: the euro hit a five-month high after the projection was announced.

Now read Pauline Bock on the candidate most likely to win, and the NS'profiles of Macron and Le Pen.

 

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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