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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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
Campaign pictures/Office of Jorge Sharp
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Meet Jorge Sharp, the rising star of Chile’s left who beat right-wingers to running its second city

The 31-year-old human rights lawyer says he is inspired by Jeremy Corbyn’s alternative politics as he takes the fight to the Chilean establishment.

Bearded, with shaggy hair, chinos and a plaid shirt, 31-year-old Jorge Sharp does not look like your typical mayor elect. But that does nothing to stop him speaking with the conviction of one.

“Look, Chile is a country that solely operates centrally, as one unit,” he says. “It is not a federal country – the concentration of state functions is very compact. In reality, most of the power is in Santiago. There are many limitations when it comes to introducing significant changes [in local areas].”

In October, Sharp upset Chile’s political status quo by defeating establishment rivals in the mayoral election of Valparaíso, the second city of South America’s first OECD country. He is taking office today.

Often compared to Podemos in Spain, Sharp’s win was significant – not only as yet another example of voters turning against mainstream politics – because it denied Chilean right-wing candidates another seat during local elections that saw them sweep to power across the country.

As the results rolled in, Conservative politicians had managed to snatch dozens of seats from the country’s centre-left coalition, led by President Michelle Bachelet, a member of Chile’s Socialist Party.

Sitting in one of Valparaíso’s many bohemian cafes, Sharp accepts the comparison with Podemos gracefully but is keen to make sure that Chile’s new “autonomous left” movement is seen as distinct.

“What we are doing in Chile is a process that is difficult to compare with other emerging political movements in the world,” he says. “We are a distinct political group and we are a modern force for the left. We are a left that is distinct in our own country and that is different to the left in Spain, in Bolivia, and in Venezuela.”

Sharp’s Autonomous Left movement is not so much a party rather than a group of affiliated individuals who want to change Chilean politics for good. Considering its relatively small size, the so-called Aut Left experienced degrees of success in October.

Chilean voters may have punished Bachelet – also Chile’s first female leader – and her coalition after a number of corruption scandals, but they did not turn against left-wing politics completely. Where they had options, many Chileans voted for newer, younger and independent left-wing candidates. 

“We only had nine candidates and we won three of the races – in Punta Arenas, Antofagasta and Ñuñoa, a district of Santiago,” he says. “We hope that the experience here will help us to articulate a national message for all of Chile.”


Campaign pictures/Office of Jorge Sharp

For Sharp, the success of Jeremy Corbyn, Donald Trump and the pro-Brexit movement are due to people fed up – on a global scale – with their respective countries’ mainstream political parties or candidates. Given that assumption, how would he describe the cause of his own election success?

“The problem in Chile, and also for the people in Valparaíso, is that the resources go to very few people,” he says. “It was a vote to live better, to live differently. Our project for social policy is one that is more sufficient for all the people. It’s a return to democracy, to break the electoral status quo.”   

Sharp – like many – believes that the United States’ Democrat party missed out by passing up the opportunity to break with the status quo and choose Bernie Sanders over the chosen nominee Hillary Clinton. “They would have been better off with Sanders than Clinton,” he believes. 

“The [people] in the US are living through a deep economic crisis. These were the right conditions for Trump. The people weren’t looking for the candidate from the banks or Wall Street, not the ‘establishment’ candidate. The way forward was Sanders.”

Turning to other 2016 geo-political events, he claims Brexit was a case of Britons “looking for an answer to crises” about identity. Elsewhere in South America, the tactics of former Colombian president Álvaro Uribe – who led the “No” vote campaign against peace with the Farc – were “fundamentally undemocratic”.

In the future, Sharp hopes that he and the rest of the Autonomous Left will be better-prepared to take power in higher offices, in order to further reform social policy and politics in Chile.

“For these elections, we weren't unified enough,” he concedes. “For 2017 [when national elections take place], we will have one list of parliamentary candidates and one presidential candidate.”

And while Sharp clearly sympathises with other left-wing movements in countries throughout the world, this is not a call for a unified approach to take on the rise of the right.

“Every country has its own path,” he finishes. “There is no single correct path. What we need to do [in Chile] is articulate a force that’s outside the political mainstream.”

Oli Griffin is a freelance journalist based in Latin America.