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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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

It would be easy to dismiss the 69-year-old property mogul - but Trump is impossible to ignore.

Donald Trump doesn’t miss a beat. When a man in the front row of a packed school auditorium shouted, “We don’t want a scripted president,” he bellowed straight back, “No you don’t! And you don’t want a politically correct president,” a comment that sent the thousand-strong audience into a raucous standing ovation.

It was classic Trump: a move aimed at underlining his credentials as a populist, anti-politics insurgent. For bemused outsiders, his stump speech on 14 August at Winnacunnet High School in the tidy New Hampshire town of Hampton offered fresh insights into the methods by which Donald Trump has successfully hijacked the Republican race for the White House.

It would be easy to dismiss the 69-year-old property mogul. Trump’s campaign is powered by little more than personality and wealth. His pitch features few policies beyond building a giant wall along the Mexican border and putting his business associates in positions where they can strike better deals than the current administration. His campaign shtick resembles nothing so much as a stand-up comedy show. On Iraq: “It isn’t even a country. It’s a bunch of corrupt people.” On oil: “Iran, Isis, everybody has it but us.” And on China: “You hear that sucking sound? You know what that means . . . jobs, money.”

And yet he is impossible to ignore. Trump has led the polls for the Republican nomination since declaring his intention to run on 16 June – in a speech that accused Mexico of sending both rapists and murderers to the US. In New Hampshire he has a double-digit lead over Jeb Bush, who remains the favourite to win the nod, given his record as governor of Florida and his party connections – not least his father, George, and brother George W. This makes Trump the people’s choice.

Something similar is happening among Democrats. Although Hillary Clinton has a monopoly on donors and party grandees, Bernie Sanders, the self-proclaimed socialist senator from Vermont, is making a move in the polls. The US version of Jeremy Corbyn – the unreconstructed lefty selected to balance the debate – offers a different way of doing things from Clinton, who comes from a tired elite, or so runs the familiar argument.

And this is Trump’s main message: the rich are running politics for their advantage, donating money to the establishment in return for favours when they return to office. “Who knows it better than me?” he boasted to more whoops from the audience. “I’ve contributed to everyone.”

Trump acts like a heckler on stage. It’s his brash honesty that appeals to the likes of Bob Pennell, an orthopaedic surgeon who had travelled from neighbouring Massachusetts to see him speak. “He is shining the light on the rich and how they use the government,” Pennell said. “I always suspected it. But now I know.”

The result of such poor leadership, Trump argues, is that the US has lost its place as the dominant global economy – hence that sucking sound from China. It’s a message that strikes a chord with an audience that feels squeezed financially at home and sees its country adrift in the world.

Trump’s larger-than-life persona – and frequent, unverifiable boasts that his net worth stands at $10bn – felt like a throwback to days gone by, when “the American dream still meant something”, according to Jimmy Riordan, a diesel engine parts engineer. “It’s a cut-throat world and he’s the best businessman,” he said.

Quite what a Trump administration would look like, however, is anyone’s guess. In a rapid-fire question-and-answer session, he committed to federal investigations into the treatment of army veterans and the Environmental Protection Agency. An audience member asked if he would send astronauts to Mars. Trump smiled, saying he would first fix the US’s crumbling roads and airports. “Who’s better at infrastructure than Trump?” he asked, to more laughter.

Even a string of glaring gaffes has failed to dent his lead. Most recently he tried to undermine Megyn Kelly of Fox News after she probed his attitude towards women. Her dogged questioning, Trump said, was down to “blood coming out of her wherever”.

Yet to his supporters in the school auditorium, this kind of comment is not a misstep but a breath of fresh air. They say it shows he is his own man, that his personal fortune frees him from the need for spin doctors, lobbyists or donors who would seek favours should he reach office. Even his opponents can sense the appeal. “He doesn’t have to have their influence,” said Kerri Ruggiero, who is campaigning in the state for George Pataki, the Republican former New York governor, who is failing to gain traction. “It’s just him.”

Not everyone at the stump speech was a supporter. In New Hampshire, people take their responsibility as an early primary state seriously. A good showing here in February can make or break a candidate’s campaign. In the 1968 Democratic primaries, Eugene McCarthy came within 7 per cent of Lyndon B Johnson, a close enough result to force the sitting president to announce he would not run for re-election. Some showed up last Friday to gauge whether Trump was a credible figure. Others came to make a point. Noah Thompson, an 18-year-old student, wore a giant golden sombrero to protest against Trump’s comments about Mexicans.

“I probably would have voted for him,” Thompson confessed as the crowd headed for the exits, “if he hadn’t opened his mouth for two months.”

This article first appeared in the 20 August 2015 issue of the New Statesman, Corbyn wars