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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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Commons Confidential: When Corbyn met Obama

The Labour leader chatted socialism with the leader of the free world.

Child labour isn’t often a subject for small talk, and yet it proved an ice-breaker when Jeremy Corbyn met Barack Obama. The Labour leader presented the US president with a copy of What Would Keir Hardie Say? edited by Pauline Bryan and including a chapter penned by Comrade Corbyn himself.

The pair, I’m informed by a reliable snout, began their encounter by discussing exploitation and how Hardie started work at the tender age of seven, only to be toiling in a coal mine three years later.

The book explores Hardie’s relevance today. Boris Johnson will no doubt sniff a socialist conspiracy when he learns that the president knew, or at least appeared to know, far more about Hardie and the British left than many MPs, Labour as well as Tory.

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Make what you will of the following comment by a very senior Tory. During a private conversation with a Labour MP on the same select committee, this prominent Conservative, upon spotting Chuka Umunna, observed: “We were very relieved when he pulled out of your leadership race. Very capable. We feared him.” He then, in
a reference to Sajid Javid, went on: “We’ve got one of them.” What could he mean? I hope it’s that both are young, bald and ambitious . . .

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To Wales, where talk is emerging of who will succeed Carwyn Jones as First Minister and Welsh Labour leader. Jones hasn’t announced plans to quit the posts he has occupied since 2009, but that isn’t dampening speculation. The expectation is that he won’t serve a full term, should Labour remain in power after 5 May, either as a minority administration or in coalition in the Senedd.

Names being kicked about include two potential newcomers: the former MEP Eluned Morgan, now a baroness in the House of Cronies, and the Kevin Whately lookalike Huw Irranca-Davies, swapping his Westminster seat, Ogmore, for a place in the Welsh Assembly. Neither, muttered my informant, is standing to make up the numbers.

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No 10’s spinner-in-chief Craig “Crazy Olive” Oliver’s decision to place Barack Obama’s call for Britain to remain in Europe in the Daily Telegraph reflected, whispered my source, Downing Street’s hope that the Torygraph’s big-business advertisers and readers will keep away from the rest of the Tory press.

The PM has given up on the Europhobic Sun and Daily Mail. Both papers enjoy chucking their weight about, yet fear the implications for their editorial clout should they wind up on the losing side if the country votes to remain on 23 June.

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Asked if that Eurofan, Tony Blair, will play a prominent role in the referendum campaign, a senior Remainer replied: “No, he’s toxic. But with all that money, he could easily afford to bankroll it.”

Kevin Maguire is Associate Editor (Politics) on the Daily Mirror and author of our Commons Confidential column on the high politics and low life in Westminster. An award-winning journalist, he is in frequent demand on television and radio and co-authored a book on great parliamentary scandals. He was formerly Chief Reporter on the Guardian and Labour Correspondent on the Daily Telegraph.

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism