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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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Emmanuel Macron's power struggle with the military

Reminding your subordinates that you are "their boss" doesn't go as far as listening to their problems, it may seem.

This is the sixth in a series looking at why Emmanuel Macron isn't the liberal hero he has been painted as. Each week, I examine an area of the new French president's politics that doesn't quite live up to the hype. Read the whole series.

It had started well between Macron and the army. He was the first president to chose a military vehicle to parade with troops on the Champs-Élysées at his inauguration, had made his first official visit a trip to Mali to meet French soldiers in the field, and had pulled a James Bond while visiting a submarine off the Brittany coast.

It’s all fun and games in submarines, until they ask you to pay to maintain the fleet.

“Macron wanted to appear as the head of armed forces, he was reaffirming the president’s link with the military after the François Hollande years, during which the defence minister Jean-Yves Le Drian had a lot of power,” Elie Tenenbaum, a defence research fellow at the French Institute for International Relations, told the New Statesman. The new president was originally viewed with distrust by the troops because he is a liberal, he says, but “surprised them positively” in his first weeks. Olivier de France, the research director at The French Institute for International and Strategic Affairs, agrees: “He sent good signals at first, gathering sympathy.” 

But the honeymoon ended in July, with what Tenenbaum describes as Macron’s first “real test” on defence: the announced cut of €850m from the army’s budget, despite Macron’s (very ambitious) campaign pledge to rise the defence budget to 2 per cent of the country’s GDP by 2025. A row ensued between the president and the French army’s chief of staff, general Pierre de Villiers, when the general complained publicly that the defence budget was “unbearable”. He told MPs: “I won’t let him [Macron] fuck me up like that!”

Macron replied in a speech he gave to military troops the day before Bastille Day, in which he called soldiers to honour their “sense of duty and discretion” and told them: “I have taken responsibilities. I am your boss.” After the general threatened to quit and wrote at length about “trust” in leadership, Macron added a few days later that “If something brings into conflict the army’s chief of staff and the president of the Republic, the chief of staff changes.” That, Tenenbaum says, was the real error: “On the content, he was cutting the budget, and on the form, he was straightening out a general in front of his troops”. This is the complete opposite of the military ethos, he says: “It showed a lack of tact.”

This brutal demonstration of power led to de Villiers’ resignation on 19 July – a first in modern French politics. (de Villiers had already protested over budget cuts and threatened to quit in 2014, but Hollande’s defence minister Jean-Yves Le Drian had backed down.)

Macron did his best to own up to his mistake, assuring the military that, although this year’s cuts were necessary to meet targets, the budget would be rised in 2018. “I want you to have the means to achieve your mission,” he said.

But the harm was done. “He should have introduced a long-term budget plan with a rise in the coming years right away,” says de France. “It was clumsy – of course he is the boss, everyone knows that. If he needs to say it, something is off.” The €850m will be taken out of the army’s “already suffering” equipment budget, says Tenenbaum. “There are pressures everywhere. Soldiers use equipment that is twice their age, they feel no one has their back." The 2 per cent GDP target Macron set himself during the campaign – a “precise” and “ambitious” one – would mean reaching a €50bn army budget by 2025, from this year’s €34m, he explains. “That’s €2bn added per year. It’s enormous.”

Read more: #5: On immigration, Macron's words draw borders

Macron has two choices ahead, De France explains: “Either France remains a big power and adapts its means to its ambitions” – which means honouring the 2 per cent by 2025 pledge – “or wants to be a medium power and adapts its ambitions to its means”, by reducing its army’s budget and, for instance, reinvesting more in European defence.

The military has good reason to doubt Macron will keep his promise: all recent presidents have set objectives that outlast their mandates, meaning the actual rise happens under someone else’s supervision. In short, the set goals aren’t always met. Hollande’s law on military programming planned a budget rise for the period 2018-19, which Macron has now inherited. “The question is whether Macron will give the army the means to maintain these ambitions, otherwise the forces’ capacities will crumble,” says Tenenbaum. “These €850m of cuts are a sign than he may not fulfill his commitments.”

If so, Macron’s row with the general may only be the beginning.  It didn’t help Macron’s popularity, which has been plummeting all summer. And the already distrustful troops may not forgive him: more than half of France’s forces of order may support Marine Le Pen’s Front national, according to one poll. “It’s hardly quantifiable and includes police officers,” Tenenbaum cautions. All the same, the army probably supports right-wing and hard-right politicians in higher numbers than the general population, he suggests.

James Bond would probably have known better than to irritate an entire army – but then again, Bond never was “their boss.”