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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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Emmanuel Macron's "moralisation of politics" comes at a heavy price for his allies

"Fake" jobs in French politics, season 3 episode 1.

Something is rotten in the state of France. No political party – at least none that existed before 2016 – seems immune to the spread of investigations into “fake” or shady parliamentary jobs. The accusations sank centre-right candidate François Fillon’s presidential campaign, and led to Marine Le Pen losing her parliamentary immunity in the European parliament (and proxy wars within her party, the National Front). Both deny the allegations. Now the investigations have made their way to the French government, led by Edouard Philippe, Emmanuel Macron’s Prime Minister.

On Wednesday morning, justice minister François Bayrou and secretary of state for European affairs Marielle de Sarnez announced their resignation from Philippe’s cabinet. They followed defence minister Sylvie Goulard’s resignation the previous day. The three politicians belonged not to Macron's party, En Marche!, but the centrist MoDem party. Bayrou, the leader, had thrown his weight behind Macron after dropping his own presidential bid in April.

The disappearance of three ministers leaves Emmanuel Macron’s cross-party government, which includes politicians from centre left and centre right parties, without a centrist helm. (Bayrou, who has run several times for the French presidency and lost, is the original “neither left nor right” politician – just with a less disruptive attitude, and a lot less luck). “I have decided not to be part of the next government,” he told the AFP.

Rumours had been spreading for weeks. Bayrou, who was last part of a French government as education minister from 1993 to 1997, had been under pressure since 9 June, when he was included in a preliminary investigation into “embezzlement”. The case revolves around whether the parliamentary assistants of MoDem's MEPs, paid for by the European Parliament, were actually working full or part-time for the party. The other two MoDem ministers who resigned, along with Bayrou, also have assistants under investigation.

Bayrou has denied the allegations. He has declared that there “never was” any case of “fake” jobs within his party and that it would be “easy to prove”. All the same, by the time he resigned, his position as justice minister has become untenable, not least because he was tasked by Macron with developing key legislation on the “moralisation of politics”, one of the new President’s campaign pledges. On 1 June, Bayrou unveiled the new law, which plans a 10-year ban from public life for any politician convicted of a crime or offence regarding honesty and transparency in their work.

Bayrou described his decision to resign as a sacrifice. “My name was never pronounced, but I was the target to hit to attack the government’s credibility,” he said, declaring he would rather “protect this law” by stepping down. The other two ministers also refuted the allegations, and gave similar reasons for resigning. 

Macron’s movement-turned-unstoppable-machine, En Marche!, remains untainted from accusations of the sort. Their 350 new MPs are younger, more diverse than is usual in France – but they are newcomers in politics. Which is exactly why Macron had sought an alliance with experienced Bayrou in the first place.

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