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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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

Trying out a new eBook reader app on an iPad. Photograph: Getty Images
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Saudi Arabia is a brutal and extremist dictatorship – so why are we selling it arms?

With conflict in Yemen continuing, it’s clear that we’re failing to moderate the actions of “our despots”.

This year, during Pride week, I noticed something curious on top of the Ministry of Defence just off Whitehall. At the tip of the building’s flagpole hung the rainbow flag – a symbol of liberation for LGBTIQ people and, traditionally, a sign of defiance, too.

I was delighted to see it, and yet it also struck me as surprising that the governmental headquarters of our military would fly such a flag. Not only because of the forces’ history of homophobia, but more strikingly to me because of the closeness of our military establishment to regimes such as Saudi Arabia, where homosexuality is a sin punishable by jail, lashing and even death

That relationship has been under the spotlight recently. Ministers writhed and squirmed to avoid making public a report that’s widely expected to reveal that funding for extremism in Britain has come from Saudi Arabia. The pressure peaked last week, after a series of parliamentary questions I tabled, when survivors of 9/11 wrote to Theresa May asking her to make the report public. At the final PMQs of the parliamentary term last week, I again pressed May on the issue, but like so many prime ministers before her, she brushed aside my questioning on the link between British arms sales and the refusal to expose information that might embarrass the Riyadh regime. 

The British government’s cosy relationship with Riyadh and our habit of selling weapons to authoritarian regimes is “justified" in a number of ways. Firstly, ministers like to repeat familiar lines about protecting British industry, suggesting that the military industrial complex is central to our country’s economic success.

It is true to say that we make a lot of money from selling weapons to Saudi Arabia – indeed figures released over the weekend by the Campaign Against Arms Trade revealed that the government authorised exports including £263m-worth of combat aircraft components to the Saudi air force, and £4m of bombs and missiles in the six months from October 2016.

Though those numbers are high, arms exports is not a jobs-rich industry and only 0.2 per cent of the British workforce is actually employed in the sector. And let’s just be clear – there simply is no moral justification for employing people to build bombs which are likely to be used to slaughter civilians. 

Ministers also justify friendship and arms sales to dictators as part of a foreign policy strategy. They may be despots, but they are “our despots”. The truth, however, is that such deals simply aren’t necessary for a relationship of equals. As my colleague Baroness Jones said recently in the House of Lords:

"As a politician, I understand that we sometimes have to work with some very unpleasant people and we have to sit down with them and negotiate with them. We might loathe them, but we have to keep a dialogue going. However, we do not have to sell them arms. Saudi Arabia is a brutal dictatorship. It is one of the world’s worst Governments in terms of human rights abuses. We should not be selling it arms.”

With Saudi Arabia’s offensive against targets in Yemen continuing, and with UN experts saying the attacks are breaching international law, it’s clear that we’re failing to moderate the actions of "our despots".

The government’s intransigence on this issue – despite the overwhelming moral argument – is astonishing. But it appears that the tide may be turning. In a recent survey, a significant majority of the public backed a ban on arms sales to Saudi Arabia and just this weekend the Mayor of London denounced the arms fair planned in the capital later this year. When the government refused to make the terror funding report public, there was near-universal condemnation from the opposition parties. On this issue, like so many others, the Tories are increasingly isolated and potentially weak.

Read more: How did the High Court decide weapon sales to Saudi Arabia are lawful?

The arms industry exists at the nexus between our country’s industrial and foreign policies. To change course we need to accept a different direction in both policy areas. That’s why I believe that we should accompany the end of arms exports to repressive regimes with a 21st century industrial policy which turns jobs in the industry into employment for the future. Imagine if the expertise of those currently building components for Saudi weaponry was turned towards finding solutions for the greatest foreign policy challenge we face: climate change. 

The future of the British military industrial establishment’s iron grip over government is now in question, and the answers we find will define this country for a generation. Do we stamp our influence on the world by putting our arm around the head-choppers of Riyadh and elsewhere, or do we forge a genuinely independent foreign policy that projects peace around the world – and puts the safety of British people at its core?

Caroline Lucas is the MP for Brighton Pavilion.