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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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Welcome to South Africa’s new political landscape

The era of one-party rule is over.

Last night, after a whole day of drama, tedium and tragedy, Johannesburg had a new mayor. 

Opposition Democratic Alliance (DA) councillors, dressed in conventional suits, sat quietly throughout the mayoral election, looking very much like businessmen and women. Their sartorial code was completely at odds with the Economic Freedom Fighters (EFF) – supporters of the far-left’s Julius Malema. They came dressed in their trade-mark red overalls and matching miner’s helmets. 

Singing and dancing, the EFF held up the voting for hours, demanding that an ANC councillor against whom they had laid charges of corruption should be excluded from the election. Finally an ANC councillor collapsed and died in the chamber, having suffered a heart attack.

The proceedings had dragged on for eleven hours, with South Africans complaining on social media that they wanted to go to bed. But eventually the DA’s Herman Mashaba was sworn in as mayor. The 56-year-old businessman, who made his money in cosmetics, would not have been in post without EFF support.

It is a strange alliance. Malema refused to go into a formal alliance with the much larger DA. It was – as he put it – a question of choosing between the better of “two devils”.

It is difficult to see how the DA, whose policies are clearly free-market and capitalist, will work with the EFF. Malema has repeatedly called for nationalisation of the mines and the land, without compensation. But on one issue the DA, EFF and other opposition parties are united: their loathing for the ANC and the quagmire of corruption and nepotism that it has dragged the country into.

The ANC won the largest share of the 3 August local elections, taking 54.5 per cent of the vote – against the DA’s 27.0 per cent and the EFF’s  8.3 per cent. Yet it has found itself excluded from running most of South Africa’s key metropolitan areas.

The opposition holds Tshwane (which includes the administrative capital, Pretoria) Nelson Mandela Bay (including Port Elizabeth) and now Johannesburg itself, as well as Cape Town, which the ANC lost back in 2006.

The ANC has found itself largely relegated to rural towns and villages, with only the metropolitan area of Durban and cities like Kimberley and Bloemfontein in its control.

Transformation

What the election really marks is the end of one-party rule.

From 1948 the National Party ruled the country, imposing apartheid. After 1994 and the release of Nelson Mandela, the ANC governed, with little the opposition could do to challenge its hold on power.

The local government elections ushered in a new era of multi-party politics. Communities across the country are now run by coalitions.

Take Nelson Mandela Bay, as an example.

In the 3 August 2016 election, the ANC lost their majority. The DA gained 57 seats, 4 seats short of a majority. So the DA negotiated a coalition including the African Christian Democratic Party, the Congress of the People, and the United Democratic Movement.

Athol Trollip – the DA’s Xhosa-speaking mayor – has set about rebuilding the metro's reputation. Outlining his plans for his first 100 days in office with promises of jobs and a clean administrations, Trollip said: “Political instability in this metro has rendered this city moribund and unresponsive… It is time to lock the revolving doors of corruption‚ cadre deployment and cronyism and bring about a new model of administration by this multiparty government, that will eschew the blight of such practices and that ushers in a model of good government…".

Can the opposition deliver?

As the reality of their new responsibilities become apparent, the opposition may discover that winning the election was the easy part. The DA will have to show tact, skill and extraordinary diplomacy if it is to hold together its relationship with difficult parties like the EFF.

They have already faced challenges from trade unions allied to the ANC, with protests from South African Municipal Workers Union (Samwu). Journalist and commentator Stephen Grootes has warned that the going will get rough.

"Samwu is likely to try to bring administration in DA-led metros to a halt. But it also faces a risk. It has tended to get what it wants through illegal actions and political pressure in the ANC through Cosatu. This time, it could well find that Mashaba, Msimanga and Trollip are tougher nuts to crack."

The ANC and the president

Meanwhile, the ANC and President Jacob Zuma are not without resources.

They still run central government and have at their disposal the finances of the Treasury and the state’s highly politicised security apparatus.

Yet the ANC is struggling to react effectively.

Its first response was to deny that Jacob Zuma had lost the party votes – preferring instead to take collective responsibility for the defeats.

There are suggestions that the ANC is now so divided and ineffectual that they have almost ceased to govern.

Writing in Business Day, the South African equivalent of the Financial Times, columnist Carol Paton today suggested that: "No one runs SA. It is an aircraft in which the pilot has left the cockpit and locked the door behind him."

Paton accuses President Zuma of having: "Centralised power in his office, using his powers of appointment, in a way that is highly effective in achieving his personal goals, but has had chaotic consequences for the process of governing."

It is difficult to see how this can continue. There is a real loss of a sense of direction. Ordinary South Africans can only watch in anger and frustration as they attempt to muddle along.

But one fact seems certain: the era of one-party rule is over. South Africa has become a much more interesting, complex country.

Martin Plaut is a fellow at the Institute of Commonwealth Studies, University of London. With Paul Holden, he is the author of Who Rules South Africa?