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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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Must I unremember the day I wept over the long, slow suicide of a 27-year-old man?

At that time we did talk about the occupation of Ireland. Now we have to pretend we didn’t and it’s all the jolly UK and thank you, England for the peace process.

The misremembering of history interrupts these tales of my own squalid past. Very often I find myself wishing my memories were wrong, or that I’d forgotten more than I have. This would certainly be the case were I to be a politician, albeit a small-time one in big-time government. In the era of renunciations and sincere apologies, I would have to say sorry most of the time.

But I can’t. I can’t get past that clear day in May 1981, when the tangy cold spring air of a New York day got right inside me. Ambling home from another long, messy night in the Village, I was near 52nd when I saw people carrying a coffin.

“It’s not him, of course. It’s a fake coffin,” said a woman who saw the shock on my face. Maybe I was already crying. I knew and didn’t know but asked anyway.

“Yes. Bobby.”

Bobby Sands had died. Crowds were gathering with banners about Smashing Long Kesh and Smashing Thatcher.

The shock of it has never left me and God knows “martyrs” come two a penny now. Yet the idea that someone can starve themselves slowly to death for an idea is shocking. The idea that someone can let them do it, either “for” a United Ireland or “for” a United Kingdom, remains profoundly disturbing to me.

I need no lectures about what vile and murderous bastards the IRA were, or the numbers of innocents they killed. Nor about the smeary sentimentality of martyrdom itself. All I can say is that I had little idea of what “we” did in Ireland as long as I lived in England. A boy at school had run off to join the IRA. My mum said, “Well, he’s always been tapped, that one.”

We were kept ignorant. For some stupid reason, I did not think that Thatcher would let the hunger strikers die.

Their demands, remember, were the right not to wear prison uniform or to do prison work, rights to free association and education within the prison, one visit, one parcel, one letter a week. They wanted to be treated as political prisoners. Thatcher said Sands had no mandate. He was actually an MP, with more votes than she ever won in Finchley.

In New York that day, when we got to Third Avenue, there was anger and then solemnity. There were mumblings about what a death like that entailed . . . Mandela then instigated a hunger strike on Robben Island. There were protests in Milan and Ghent. French towns would name streets after Sands.

At that time, though, yes, we did talk about the occupation of Ireland. Now we have to pretend we didn’t and it’s all the jolly UK and thank you, England for the peace process.

So, must I unremember that day when I sat down on the pavement and wept over the long, slow suicide of a 27-year-old man? Let me know how to uncry all those tears shed for that terrible, terrible waste.

Suzanne Moore is a writer for the Guardian and the New Statesman. She writes the weekly “Telling Tales” column in the NS.

This article first appeared in the 01 October 2015 issue of the New Statesman, The Tory tide