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New Statesman - and companies that want "free" use of others’ intellectual property view copyright as a cumbersome and outdated regulation.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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No, Donald Trump isn't starting World War Three in North Korea

The US president is living up to his promise to be "unpredictable". But is he using war as a sales pitch? 

“I plan on not dying,” Ian McCulloch of Echo and the Bunnymen told Spin magazine in 2008. “But if I have to, I want to die in Liverpool.” And so it was that nine years later, when war in the Asia-Pacific region suddenly seemed plausible, perhaps even likely, the musician pulled out of a solo show in Tokyo that was scheduled for 14 April and, according to Japan Today, left the country without even informing the event’s organisers. “We apologise for this significant inconvenience,” they later tweeted to ticketholders, blaming “news of an armed conflict between the US and North Korea” for the abrupt cancellation.

McCulloch isn’t the only one spooked by the heightened tensions between the two countries. Japan, America’s most strategically valuable ally in east Asia, lies within striking distance of Pyongyang’s weapons – military hardware that North Korea’s deputy foreign minister, Han Song-Ryol, recently insisted would continue to be tested “on a weekly, monthly and yearly basis”. On 8 April, three days before the North’s Supreme People’s Assembly was scheduled to convene, the 333-metre-long US aircraft carrier Carl Vinson left its home port of San Diego, accompanied by missile destroyers and a cruiser. The American president declared that he was sending an “armada” to the troublesome peninsula. If this was intended as a deterrence, however, North Korea was not deterred, and it fired a test missile from an eastern port on 16 April. The experiment ended in failure: the weapon exploded almost immediately after launch. Yet the message was clear. Don’t mess.

So the Korean War, which began in June 1950 but was never formally concluded with a peace treaty, has seemingly reached a crisis of a magnitude not felt since the armistice of 1953. Kim In-ryong, North Korea’s deputy UN ambassador, has accused the US of creating “a dangerous situation in which a thermonuclear war may break out at any moment”. If that’s true, McCulloch did well to take the first plane out of the area.

Such an apocalyptic scenario, however, remains unlikely to play out. It would serve no one’s interests, least of all North Korea’s, since the country could be wiped out almost immediately. Donald Trump demonstrated as much when he deployed the “mother of all bombs” – the Moab, the largest conventional explosive that the US has ever used in combat – on Isis bunkers in Afghanistan on 13 April. Perhaps more concerning to other heads of state than the damage done by the weapon was the apparent irrationality of the strike: Isis’s presence in the country is limited in comparison to that of the Taliban, and such an attack was unlikely to lead to any long-term resolution of the various crises there.

The US president, in effect, was signalling that he could match foes such as Kim Jong-un in terms of unpredictability – something that he had already underscored on 6 April with his surprise strike on a Syrian government airbase. It was a showbiz gesture.

On the campaign trail in January last year, Trump was asked whether he would consider bombing Iran’s nuclear facilities. “I’m gonna do what’s right,” he said. “I want to be unpredictable.” Since his inauguration, he has stuck to the latter part of that plan, from his on-again-off-again flirtation with Putin to his recent reversal on Chinese currency manipulation. Trump, it seems, is a president who wants to keep both enemies and allies on their toes. It’s a deal-making mentality – the sensibility of a salesman, not of a statesman. And it’s a dangerous one when applied to the global stage, where trust between nations is essential for any meaningful diplomacy.

If Trump is applying his “art of the deal” to America’s recent international ventures, it’s worth asking what the deal – or deals – in question might be. North Korea has long been a proxy for other problems in east Asia. The winding down of its nuclear weapons programme for its own sake looks, to me, unlikely to be the president’s principal objective (the US had a chance to pursue this in 1994 when it signed the Agreed Framework with North Korea, but political enthusiasm for it cooled almost before the ink had dried). But for a Third World War, even a thermonuclear one, to be put on the table as a potential reality, surely the stakes must be high?

I have my doubts. Trump’s foreign policy seems nowhere near as coherent or developed as, say, that of Barack Obama (imperfect though his doctrine of “patience” turned out to be). America’s recent actions have seemed opportunistic, rather than strategic. Brinkmanship from either side won't achieve anything, as both are reluctant to make concessions. So what could the US be up to?

Maybe the supposedly impending nuclear apocalypse is, at least in part, a ruse to sell stuff. Among the policy areas closest to Trump’s heart during his presidential campaign was trade. Last month, Peter Navarro, the director of the White House’s national trade council, told the Wall Street Journal: “Any country we have a significant trade deficit with needs to work with us on a product-by-product and sector-by-sector level to reduce that deficit over a specified period of time… That can be achieved, if they buy more of our products than they now are buying from the rest of the world, whether it’s chemicals or corn or whether, from a national security perspective, it’s submarines or aircraft.”

The countries with the largest trade imbalances with the US are China, Japan and Germany. China denies that it is deliberately pursuing a surplus in its dealings with US (and, frankly, what could America do about it anyway?), while Germany’s trade relations are handled by the European Union and so are difficult for the US to reset on a nation-to-nation basis. But Japan – which the US vice-president, Mike Pence, visited on a trade tour this week – has a pliable leader in Prime Minister Shinzo Abe.

Abe, a nationalist by instinct who has long struggled to remilitarise Japan and has incrementally reinterpreted his country’s pacifist constitution to permit increased military engagement, signed a significant arms trade pact with the US last year. Resistance to his agenda has been vocal in Japan at every step. However, fears of a rising threat from North Korea would give him more wriggle room. A Japanese commission is considering the potential benefits of deploying the US Terminal High Altitude Area Defense (THAAD) system on its territory. This system will soon be in use in South Korea – much to the annoyance of China, which suspects that it would be capable of tracking and countering its nuclear programme.

Trump’s insistence that trade imbalances be remedied is unrealistic in many sectors, not least in the auto sector, since Japan already allows US cars into its market tariff-free and they still don’t sell. Upping trade and collaboration in arms, however, would help Abe appease Trump while getting closer to fulfilling his own goal of a militarily robust Japan. The threat of war could also allow him to establish a more active role for the nation’s “self-defence forces”. The US president, meanwhile, would have succeeded in getting one of America’s supposed “free-rider” allies to contribute something closer to what he deems its fair share, while strengthening his hand against the real adversary: Beijing.

While US arms dealers are doubtless readying their wares for sale, war with North Korea will probably be averted by pressure from China, without whose oil, airports, trade and access to financial markets the rogue nation could not function. (Some 80 per cent of North Korean exports and imports are with China.) From this perspective, the recent tensions between the US and North Korea represent an admittedly melodramatic episode of the US “pivot” to the east, more than the beginning of the end of the world.

It’s an unstable stability, but stable enough to allow for shallow political game-playing – and I suspect Trump is gaming it (as the revelation that the Carl Vinson flotilla was 3,500 miles away from North Korea and heading the wrong way at the time of Trump’s “armada” threat suggests). So McCulloch needn’t have denied Japanese fans a rendition of “Killing Moon”. The bombs aren’t likely to fall yet.

Yo Zushi is a contributing writer for the New Statesman. His latest album, It Never Entered My Mind, is out now on Eidola Records and is on Spotify here.

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