APPENDIX: CREATe Position Papers

1. Publishing Industry

Janis Jefferies, Academic

Current debates on the publishing industry tend to focus on digitization and on the transformation of products (books to ereaders, paper to screen) and this paper explores some of these debates. Certainly, in recent decades, the creative potential that stems from society has proven to be a key resource for innovation and for a more sustainable type of development. These new processes, which have been called ‘social creativity’, are turning out to be an unlimited source of innovation for social and economic aims. New cooperative and participatory practices have led to the emergence of new economic models that challenge the boundaries between what we have traditionally considered to be the public, private and common realms.

There are many small presses in the UK for example that are bridging the gap between writers, new writing and industry, seeking experimentation and innovation where the question of nurturing relationships and collaboration is the primary concern. Smaller presses like SALT, INFLUX or Gallery Beggar Press in the UK (‘high-class boutique’ presses) who publish up to twelve title a year (SALT) or four (INFLUX) face the same challenges: large or small, risk versus money, good editors as good readers and no book sells itself, authors are always key. Interestingly, some do delve into the dead zone of previously published books; for example Simon Crump’s, ‘My Elvis Blackout’ (first published by Bloomsbury in 1998) was republished as an ebook by Gallery Beggar Press in 2012. Digital classics (Denton Welch) are built out of Twitter fan bases to provide a groundswell for reissue. This may not be the future as digital rights are now tied in with contracts from the very outset. The impact of Amazon and the promotion of the 99p sell (Cheaper than Chips is what it has been called) has a huge impact on the book world, writers and publishers alike.

Writers

It is of some interest to the Nesta workshop in September 2014 and this paper that the feature in The Guardian newspaper (Saturday 23 August 2014), written in the light of a survey by the Authors’ Licensing and Collecting Society undertaken in 2013, reported that among professional authors (defined as those who dedicate the majority of their time to writing) the median income was £11,000.

‘What Are Words Worth Now?’, a survey of almost 2,500 working writers, commissioned by the Authors’ Licensing & Collecting Society (ALCS) and carried out by Queen Mary, University of London has found that increasingly few professional authors are able to earn a living from their writing.

In contrast to the sharp decline in earnings of professional authors, the wealth generated by the UK creative industries is on the increase. Statistics produced by the Department of Culture, Media and Sport in 2014 show that the creative industries are now worth £71.4 billion per year to the UK economy (over £8 million per hour) and the UK is reported as having ‘the largest creative sector of the European Union’, and being ‘the most successful exporter of cultural good and services in the world’, according to UNESCO.

Commenting on the findings of the survey, Owen Atkinson, Chief Executive of ALCS said:

These are concerning times for writers. This rapid decline in both author incomes and in the numbers of those writing full-time could have serious implications for the economic success of the creative industries in the UK. If writers are to continue making their irreplaceable contribution to the UK economy, they need to be paid fairly for their work. This means ensuring clear, fair contracts with equitable terms and a copyright regime that support creators and their ability to earn a living from their creations.1

Nonetheless, one Irish writer, Julian Gough, is funding his new novel by offering backers the opportunity to receive postcards from Las Vegas bearing whiskey stains, lipstick and bullet holes. Gough, according to The Guardian feature, has dubbed his ‘economic-slash-literary experiments’ Litcoin. The idea came about when he found that he did not have enough money to make one final research trip to Las Vegas, where the novel is set. A Kickstarter campaign was set up for $25. So far the campaign has raised $7,300.

Also in The Guardian, Alison Flood reports that Gough has been contacted by a Swiss think-tank: ‘charity is at a dead end. I want to create a model that benefits writer and reader. So if I can help invent some kind of […] new asset, new currency, that funds the writers I love, and that also gives their readers an interesting, very personal, physical asset that might even be worth something one day, so everybody wins, then I’d be pretty happy.’2

British authors and larger UK publishers have further condemned as ‘deeply worrying’ reports that Amazon is now pressing for improved terms from publishers in the UK, as its showdown with Hachette in the US continues to be played out in public.

According to Benedicte Page3 Amazon is putting publishers under ‘heavy pressure’ to introduce new terms. In the same article, it is reported that these include the proviso that ‘should a book be out of stock from the publisher, Amazon would be entitled to supply its own copies to customers via its print-on-demand facilities’, and that ‘books cannot be sold for a lower price than Amazon’s anywhere, including on a publisher’s own website. For many writers and publishers, this is a form of assisted suicide for the book business, driven by the idea that publishers are unable to run even the most basic operations efficiently’.

The Society of Authors chief executive Nicola Solomon called the print-on-demand clause ‘deeply worrying’, and said that Amazon was ‘already far too dominant in dictating ebook prices’. ‘No one company should have such dominance or be the principal commercial driver of an entire industry’, she said.

Although it is publishers who are currently feeling squeezed by Amazon, Solomon said the negotiations also ‘threaten’ published authors. ‘Despite increasing profits, publishers are increasingly under pressure: they say, rightly, that even bestsellers tend to sell fewer copies than in the past (now readers have such a wide range of choice); their budgets will be under further pressure if they have to concede larger discounts to Amazon and pay for “services”. Authors will suffer as publishers claim that paying large advances is increasingly risky and, of course, authors are traditionally paid less on print books if publishers concede high discounts. On ebooks they are paid a proportion of net receipts so higher terms for Amazon will result in less money going to authors’, said Solomon.

The changes, she said, ‘highlight one wider, and growing, trend across all publishing and bookselling. Namely, that the author is the only 100% essential component in the creation of a book. But retailers are taking a larger chunk of any income, and publishers are taking a larger chunk of any income, so the share of income which makes its way to the author is forever shrinking.’

In the UK a number of publishers spoken to as part of The Bookseller’s investigations into the Hachette dispute said Amazon was also now putting them under ‘heavy pressure’. According to the sources, new demands include adjusting terms so that ebooks and physical book terms have parity; the adjustment is said to be in the direction of ‘p’, which traditionally attracts a higher percentage for the retailer compared with ‘e’. Amazon is also understood to be targeting academic terms, which have historically been more favourable to the publisher. The retailer also wants to impose a ceiling on the digital list price of ebooks in preparation for 2015 when the retailer will have to begin imposing the standard 20% rate of VAT on digital titles. The UK chancellor George Osborne has confirmed that ebooks will be taxed from the consumer’s European member state from 1st January 2015.
A little-noticed section of last week’s budget announcement confirmed that from the start of next year, ebooks and other e-services including broadcasting and telecommunications will be taxed in the European member state in which the consumer is located, as opposed to where the book is sold from. The move is set to ensure that ebooks are taxed ‘fairly and helping to protect revenue,’ the chancellor said.

The decision was originally announced in 2013’s budget and means a loophole that allows companies like Amazon, Kobo and Barnes & Noble to sell ebooks to the UK from Luxembourg will be closed. In the UK, ebooks attract a 20% VAT whereas Luxembourg charges a much lower 3% VAT.
Official estimates suggest the move could raise an extra £300m for the Treasury, according to The Guardian.4 However, consumers are also concerned the new rule will mean rising costs of downloads of music, DVDs and ebooks.

UK-based retailers that sell ebooks such as Waterstones, The Book People and E-books by Sainsbury’s are likely to welcome the decision because it levels the playing field between them and larger multi-nationals such as Amazon and Kobo. Between January 2013 and January 2014, twenty new ebook readers have been introduced into the marketplace. In addition to these, the number of other mobile devices with ebook reading capabilities, such as tablets, laptops, and game consoles, have grown twenty-fold. These readers, along with the breakneck million-a-month pace being set by Apple’s iPad, are driving the ubiquity of digital reader access for every possible piece of written material that becomes available.

Within five years, some will reach prices as low as fifteen pounds, maybe less. They will become as commonplace as calculators and virtually everyone will have one, or so it has been predicted.5

Readers

Readers, while welcoming the new generation of electronic reading devices, still buy predominantly paper copies of books. Time and again the conversation leads to blanket statements about ‘the end of books’ while little attention is paid to the vast potential for new hybrid forms of text, and the fundamental shifts in the writing-reader axis that the new technologies are enabling. Attributing too much agency to technology is often tantamount to the abdication of responsibility, and we are concerned with broadening the discussion toward notions of ethics, collaboration, property and creativity. It is interesting to note then that high-street book chain Waterstones saw a jump of five per cent in sales of paper books — and said that demand for Amazon’s Kindle ebook reader, which it sells, had ‘disappeared, to all intents and purposes’. Reports of the death of the paper-and-ink book may have been greatly exaggerated after ebook readers slumped and paper books made a strong return in Christmas 2014. Waterstones now plans to open more bookshops in the coming year.

Bookshop chains such as Borders in the US closed in the face of commercial pressures including rivalry from ebook readers such as Kindle — and tech sites predicted that ebooks would spell an end to the paper-and-ink version. However, commercial decisions by Waterstones UK chief executive James Daunt have shown how bookshops can flourish in the electronic age.

Speaking to the Financial Times, Douglas McCabe of Enders Analysis outlined how ‘The rapid growth of ebook sales has quite dramatically slowed and there is some evidence it has gone into reverse.’6 Daunt has credited the recent sales figures to the ability of local stores to respond to local tastes. This confirms the publishing strategy of Influx Press, an independent publisher formed in London by editors Gary Budden and Kit Caless, starting life in 2012 with the publication of Acquired for Development By… A Hackney Anthology. Since then they have published a number of titles, such as Life in Transit by poet Sam Berkson, Marshland: Dreams and Nightmares on the Edge of London by Gareth E. Rees and Above Sugar Hill by Linda Mannheim.

All their books explore in some way the idea of ‘place’: ‘we are committed to publishing innovative and challenging site-specific fiction, poetry and creative non-fiction from across the UK and beyond.’

A Meeting of Text and Technology

Penguin Random House, the world’s largest publishing house, is exploring new ways to tell stories through technology. Wanting to take this to the next level they have invited creative individuals, developers, entrepreneurs and designers, as well as global tech hubs, innovation labs, and universities to explore the technological and creative possibilities around one of their best known authors, Stephen Fry. This is YourFry — a collaborative global project to reinterpret the words and narrative of Stephen’s brand new memoir, More Fool Me. As a technology enthusiast with over seven million followers, Stephen Fry is following on from the success of his prestigious Guardian-Media-Innovation-Award-winning MyFry app to push the tech boundaries even further for his latest autobiography. Stephen Fry himself set out the creative objectives of YourFry globally on 25 September 2014, streamed via a WeTransfer video message.

Stephen Fry and Penguin’s YourFry project has been created to ask questions about the nature of how we create and publish autobiography in the digital environment. The web is responsive, interactive and chaotic — what if the conventional autobiography is thrown open to the web? What might the results look like, what form might they take?

The digital revolution is transforming the ways that people create and distribute art. Inexpensive, professional-quality technologies of creation, like digital cameras and camcorders, photo- and video-editing software, MP3 and digital music recording and manipulation, and even word-processing, make it possible for many people to create art with high production quality. The Internet gives creators a means of low-cost distribution. This combination of digital creation and online distribution is extremely powerful. Online artistic production, supported by digital technologies, enables artists to create works and distribute them to diverse audiences, and to receive feedback. A potential effect of online distribution is the blurring of artistic boundaries, in some cases, between producer and consumer; in others, between amateur and professional. Moreover, the relative ease of digital creation and online distribution and feedback may lead to production by the masses that rival production for the masses. User-generated-content practices encapsulated in Web 2.0 are changing businesses (Anderson 2006, Kelly 1999) and consumption patterns (Abercrombie 1998, Jenkins 2006). The concept of the ‘prosumer’ was foreshadowed by Toffler (1980), who suggested that, as technology advances, the distinction between the producer of culture and the consumer of it would blur or merge. Rose (2011) discusses the way today’s consumers expect to see their favourite stories interlinked across ‘platforms’ (television, film, Internet). Jenkins (2007) goes further and argues that consumers are no longer consumers.

They, or at least certain more advanced consumers, are ‘loyals’, ‘media-actives’ or ‘prosumers’ or, in Jenkins’ favourite term, ‘fans’ (Jenkins 2007). These active consumers play an important role, both culturally and economically. Indeed, Jenkins (2007) argues that ‘fandom is the future’: ‘fandom represents the experimental prototype, the testing ground for the way media and cultural industries are going to operate in the future.’ Jenkins emphasises an active consumer, in contrast to a ‘passive’ one, but he still focuses on the consumer side of the prosumer. The producer aspect of the prosumer is less well understood. Internet-based distribution and feedback channels (‘creative hubs’) are often funded largely or completely by creators themselves. But for more expensive projects, such as making a film or a web series (web-based television series, with multiple ‘webisodes’), the Internet provides alternative funding mechanisms, including crowd-funding via ‘peer-to-peer’ finance with ‘small contributions from a large number of sources, rather than large amounts from a few’ (Baeck 2012: 3).

Creativity and innovation are supposed and proposed to be key drivers of the economy, particularly when subsumed under the ‘creative industries’: the transformation of the publishing industry, the writer/reader move to prosumer and the merging of text and technology (as in YourFry) are no exceptions.

So what do you do if you have a novel to write? Go to Twitter, and tweet about the work you’re not doing, of course. Artist Cory Arcangel’s new book is a compilation of those who couldn’t resist tweeting the words ‘working on my novel’. Working On My Novel7 is a compilation of tweets, found on twitter by searching for the phrase ‘working on my novel’, and retweeted by Archangel’s account of the same name. On the other hand, taking Publication Studio as a starting point, an open discussion about print-on-demand, sustainable publishing methods and alternative networks for independent and artist-led publishing, held at Raven Row (London) with Louisa Bailey, Ami Clarke, Arnaud Desjardin, Louise O’Hare and Eva Weinmayr revealed the thriving creative industries that independent publishers are pursuing.8 The social life of books is as important as the ideas of producing publics who attend events and participate in the ways in which books are made in different formats and on different sites. In February 2015, for example, the launch of Publication Studio, London opens with the live production of a Plastic Words publication, sampling the contents and output of its events. Printing (using the contemporary craft of laser printing) and binding will occur simultaneously at Raven Row and in the original Publication Studio in Portland, Oregon. Here there is convergence between independent galleries and project-based activities that are forming a strategic alliance with new forms of publishers, distribution and dissemination that even the art magazines like Frieze (see ‘The Map is the Territory’, issue 148, 2012) are getting excited about. Three Letter Words, run by Kate Phillimore and Louise O’Hare of Publish and Be Damned, is a non-profit organisation dedicated to the discussion and support of artist-led publishing through an annual fair, artists’ dissemination projects and an online magazine. Working with the London Bookshop Map, there are plans to develop a user-generated distribution channel for publishers to be able to share content, link to on-the-ground distributors such as independent bookshops and galleries, reach a much bigger audience of collectors and enthusiasts, and connect to each other — effectively creating a global, 24/7, artist-led book fair. They have started the task of digitising the Publish and Be Damned Public Library/archive, which contains over 2,000 publications, uploading and tagging images from them to be freely accessible and searched online.

The point here that on the one hand the debates in the commercial publishing industries are fraught with corporate competition and anxiety over profit margins whereas the flourishing independent small-scale artist-based publishers and small presses are showing how other models of production and distribution can challenge the standard languages of conventional financial models. Most impressive of all is how new reading publics are generated. A favourite example is Banner Repeater, which is an artist-led reading room and project space, founded by Ami Clarke in 2009, situated on Platform 1, Hackney Downs railway station, London E8 1LA.

The reading room holds an archive dedicated to artists’ printed material and is home to Publish and be Damned’s public library. It provides an important bibliographic resource that all visitors to BR can browse. The bookshop holds a selection of artists’ publications for sale. The project is driven by its location, like a number of initiatives with a local sensibility, dedicated to developing critical art in the natural interstice the platform and incidental footfall of over 4,000 passengers a day provides. This is achieved by rush-hour opening times that attract commuters, and an open door policy maintained six days a week.

The emphasis on multiple points of dissemination, via pamphlets and posters published from the site and the other free material distributed, online activities, and the siting of the archive of artists’ printed material as a public library; a resource that can be utilised by both local community and visitors in a working station environment, remain vital to Banner repeater’s success.9

18 January 2015

2. Is the Current Copyright Framework fit for Purpose in Relation to Writing, Reading and Publishing in the Digital Age?

Laurence Kaye, Solicitor

This is not a new question. I remember taking part in a debate on the same subject in 1994 at ‘Cyberia’, one of London’s original Internet cafes — remember them? That was four years before Brin and Page published their algorithm for Google’s first search engine and nearly ten years before Facebook, Twitter and social media appeared.

The fact that we are still debating this subject is revealing. Some people take the view that copyright is a dodo, belonging to a ‘read only’ world that cannot come to terms with a world of linking, sharing, mixing and mashing. From that perspective, copyright has been dying a lingering death since the Internet first appeared in the early 1990s.

I reject that view. Copyright is inherently format- and platform-neutral. Copyright exists in literary, audio-visual, artistic and other works in whatever digital, analogue or other forms in which they are expressed. It is ideas that fuel creativity and innovation. Copyright does not protect ideas, but only their expression.

Change driven by ‘digital’ — technologies, networks, platforms and tools — is complex and multi-factorial. It affects everything, from the law and business models through to social, cultural and political norms. These changes aren’t synchronised. Technological change outpaces everything. It raises questions for others to answer. Sometimes the law seeks to anticipate or at least keep pace with technological change. In other cases, it is playing ‘catch-up’. That’s often the job of the courts. For instance, the ease of creating and redistributing perfect digital copies of copyright content raises questions about how the laws of copyright and free movement of goods and services are reconciled when applied to online marketplaces for pre-owned digital content.

The point is that working through these issues and finding balanced solutions takes time. Perhaps the immediacy and instantaneous nature of online communications makes it hard for us to have patience. The fact that we are still working on solutions in the copyright field doesn’t mean that those solutions can’t be found. Rather, adaptation and adjustment simply take time.

I am not complacent nor am I arguing that everything in the copyright garden is perfect. In the UK, a number of changes to copyright exceptions will be introduced following the Hargreaves Review. At a UK and European level there is a framework in place for orphan works. There are also a number of initiatives to improve rights management, including the Copyright Hub here in the UK. And that highlights the biggest challenge: how to make the management of copyright permissions as easy as ‘click to buy’ when you shop online.

The copyright framework is fundamentally Darwinian. It never stands still. It is always adapting. Sure, some would prefer to dispense with it or to dilute it through ever wider exceptions, compulsory licences and a shortening of the term of protection for copyright works.

But readers need professional authors of literary, artistic and audio-visual works to create works they can enjoy in whatever form they want. Copyright is the facilitator of the value chain that exists between authors and readers. For everyone in between, including publishers, their reward depends on the value that their authors on the one hand and the readers on the other perceive them to add. A perfectly Darwinian solution!

So the copyright framework is and will continue to adapt, whatever the new technologies and indeed forms of work. In my view, the real focus of work is not the framework per se but the management of rights, especially through the ‘machine-to-machine’ communication of rights.

3. Is the Current Copyright Framework fit for Purpose in Relation to Writing, Reading, and Publishing in the Digital Age?

Richard Mollet, Publishers Association

The current copyright framework, that is to say the underpinning structure of exclusive rights and exceptions, most emphatically is fit for purpose in the digital age. Moreover, digital technology is so superlatively beneficial to copyright that it borders on the absurd to suggest that copyright should be abandoned or radically weakened in reaction to it. However, that is not to say that every single strut, plank and adornment that is attached to the underlying structure is perfect. Like any system of law, changes and small adaptations have to be made from time to time.

The copyright framework can trace its lineage back to 1710 and during this time its robust and flexible nature has coped admirably with the advent of numerous new technologies. Digital tools are simply the latest in a long line of new ways to communicate and reproduce. The copyright framework is totally indifferent to the medium in which works are being conveyed. Fundamentally core to copyright is the granting of exclusive intellectual property rights to the creators of works, which as well as returning just rewards for their talent and endeavour are the ignition spark of economic activity by others, be they publishers, record labels or film studios. Those exclusive rights can be shaved, trimmed or expanded as befits contemporary mores, but the moral, legal and economic logic that underlies their existence is unshakeable.

It is a commonplace to say that digital technology has been hugely transformative to our society and economy. In western societies at least, even the most Luddite technophobe is touched by the digital transformation in some way or other, in spite of their resistance. Given this sometimes overwhelming rate of change it is understandable that some conclude that the only response is to redesign core aspects of our legal framework. Similarly it is understandable for some to conclude that laws need to be rewritten given their belief that the Internet is, to borrow the coinage, ‘a vast copying machine’. Their logic would appear to be that since the acts of reproduction and distribution have become so facile, then any laws that seek to restrict or prevent such acts are axiomatically obsolete.

These reactions, whilst just about comprehensible, are both wrong and they are so because they fail to apprehend properly what copyright and intellectual property laws are there to do. Copyright merely grants rights to the creators of works; it does not take rights away from other people. Moreover, copyright does not confer rights on anyone other than the creator of a work. Nor does copyright arise simply from that which is technically possible. These are vital distinctions and it is the failure to grasp them that leads opponents of the copyright framework down their false trail.

Technology as an Enabler of Copyright

By setting out and granting exclusive rights, copyright law establishes where and in what circumstances the creator can legitimately assert ownership of their work — their property — and thereby assert the right to control what happens to whatever they have created. These rights are, rightly, circumscribed, by time and other conditions on use. What digital technology does is greatly enhance the creators’ ability to exploit these rights. It does so in remarkably positive and innovative ways: it makes reproduction quicker and cheaper; distribution more targeted; communicating to the public global; processing remuneration more efficient. Digital devices and services are the steroids of the creative world, and they are injected directly into the veins of the body of copyright law. In these ways, digital technology is the perfect partner to copyright.

But of course, as well as enhancing the ability of creators and producers to exploit their rights, digital technology increases the opportunity for others to exploit works too, even when they do not have the right to do so — in other words, infringing them. The Internet may be a ‘vast copying machine’ (although its other attributes are more important) and, just as in the pre-digital world where we had only small-scale copying machines, on occasion the copying that goes on will be against the wishes of the creator of the work. Such infringement of copyright is, sadly, a given in any system. But again, copyright works precisely because it establishes clearly what sort of copying is permitted and which is not. In a world in which works can be reproduced so easily it is vital that the creator of a work has a strong and fixed reference point from which to determine what is right and what is not. The alternative view — that there are no such things as ‘infringing copies’ and that anything that takes place on this galactic-scale photocopier is fair game — is nonsensical in any context in which recognition and reward is to be paid to the creator.

It should also be noted that digital technology provides some excellent solutions to creators keen to monitor and prevent the infringement of their work. The Internet is not so much a double-edged sword as a Swiss Army knife, with any range of tools available to help tackle infringement.

Opponents of copyright, I suspect, see the world the other way around. They maintain that where the copyright framework does not give rights to creators it gives them instead to users. So, for example, where a creator does not have the right to prevent copying of a work for the purpose of instruction, then — they would maintain — the person doing the copying has the right to do so. This is a false perception. One can search the various international treaties, directives and national laws in vain for any language that confers such rights. Copyright exceptions may provide the permission for use, and sometimes a defence for the infringer, but do not provide them with a right to perform an act.

Copyright is not unique in this respect: in no areas of law is a right subject to a tug-of-war between its beneficiary and the population at large. By analogy, consider the Representation of the People Act. Where a person is deprived of their right to vote because they become a member of the House of Lords, that right is not distributed around the general electorate. I do not experience a micro-increase in my enfranchisement because the newly ennobled James Palumbo has lost his. So equally, a user does not begin to acquire the right to do something at the point at which the creator’s right is curtailed under copyright. Surely, a user has abilities to do things and the copyright law acts as a guide to when doing such things is legal or not. But the user is not in possession of the same class of exclusive right as that held by the creator.

To put it bluntly, when a work enters the public domain the exclusive right in it expires; it does not transfer to others, it evaporates.

Rights are Based on law not Technology

This leads on to a further sense in which copyright opponents misapprehend the nature of copyright. They say, in terms, ‘because digital technology has given me the ability to do something I therefore have the right to do it; but copyright laws are depriving me of exercising that right.’ In this formulation (most often rehearsed in the ‘right to read is the right to text-mine’ debate), rights are acquired by an individual not by dint of the law but by dint of technology. A right is therefore held to be something that is attached to an ability.

The absurdity of such a world view becomes obvious in thinking through its logical consequences. An owner of a Formula 1 car does not have the right to travel the streets at 200 miles per hour; the owner of a mobile-phone-blocking device does not have the right to roam railway carriages shutting down others’ conversations; in futurology, the owner of an invisibility cloak would not have the right to enter unobserved into other people’s homes. The ability to do something does not confer the right to do it. Rights are generated by laws not by technology. To argue the converse hints at a rather unsavoury ‘might is right’ approach.

The Real aim of Copyright

‘Ok’, may say the copyright opponent (again to put words into their mouth), ‘I agree but you are begging the question — your argument is precisely why I want to change the copyright framework in order that it does give me the rights commensurate with my digitally enhanced technical abilities’.

At which point we must return to the crux of what the copyright framework is there to do. Its ostensible aim is to facilitate the creation of useful works by providing rewards and incentives to creators. It is difficult to maintain an argument that such incentivisation would be maintained, let alone boosted, by a legal framework that removed from the creator the ability to control the reproduction of the work. Harder still to argue that companies like publishers, for whom copyright provides the incentive to invest, could remain engaged. Such a shift in the balance of rights away from creators would actually achieve nothing, other than to diminish the creator’s economic and social standing. Hence, the challenge back to the copyright-curtailer is therefore the simple one of asking why they should benefit at the expense of the creator.

It is insufficient for them to say that they are not harming rights-holders’ economic prospects, nor even that their acts of infringement might even somehow enhance them. For one thing, it is a rather patronising attitude of the infringer to suggest that the creator and their publisher doesn’t know what’s good for them, and that actually freely distributing their work to all and sundry would be a better thing in the long run. For another, it is self-aggrandising of the non-creator to claim a right at the creator’s expense. This is true even if their activity did somehow redound to the creator. A good follow-up question to cui bono is often ‘why should it be you?’.

Natural justice demands that there be a basis for a right. Moral logic requires there needs to be a reason for a person to enjoy domain over property. In most areas of life this right arises following the exchange of money on the basis of implied contract. When it comes to the creation of works, it is a long-held view (from John Locke and others) that the product of a person’s talent and labour is justifiably theirs to control. What countervailing right could a user possibly point to? Some reach for freedom of speech. An important right to be sure, but nowhere in the annals of rights theory or practice is it a trump card: rights, when in conflict, must be balanced. In any case, it is notable that this most popular line of argument self-consciously eschews tussling over property rights. The proponent of the free-speech argument makes no claim for ownership over the work to which they assert the right to give vent; rather they take the debate on to different turf.

It would appear then that the advocates of rebalancing exclusive rights away from the creator have no strong basis for their claims. There is nothing in their locker that can outbid the intense moral connection between the creator and their right. And as we have shown, even an argument for rebalancing fails on these terms. Yes, it may be possible to trim some of the creator’s exclusive rights, but these shavings do not plop into the hands of the user, rather they disappear.

Conclusion

Copyright is fit for purpose in the digital age for three main reasons: it is sufficiently flexible to adapt to any new technology; digital technology is particularly beneficial for the exercising of copyright; and copyright provides the ability to determine which digital usages are permissible and which not.

Those who argue that copyright prevents digital-age users from exercising their rights as users are simply misunderstanding the word ‘right’. Similarly, those who argue that copyright prevents digital-age users from exercising their abilities are misunderstanding the concept of rights.

Fundamentally, copyright ensures that creators get rewarded for the great things that they create. Long may it prosper.

4. History of Copyright Changes 1710–2013

Rachel Calder, Literary Agent

Changes to the law of Copyright

The Act, or Statute of Anne passed in 1710 was heralded as an ‘Act for the Encouragement of learned Men to compose and write useful Books’. It had replaced a system in which the Stationers’ Company had a virtual monopoly on legal printing by issuing licences to printers that were designed to keep a tight control of the press. Early pressure for the right to prevent the copying of works came from printers and publishers and not writers, who had no ways of organising themselves or lobbying for better terms. The 1710 Act gave an exclusive fourteen-year period to books registered with the Stationers’ Company, renewable for another fourteen years if the writer still lived. One of the most important aspects of the Act was not just the exclusive period but also that the grant of rights was assignable and could be passed to someone other than the writer or creator on terms to be agreed. The Act also gave the writer or copyright holder a right to redress should the copyright be misused or misappropriated. However, the main beneficiaries of this early Act were not usually the writers but the printers and booksellers to whom the rights were assigned, usually for an outright fee. In some cases, the writer even had to pay for the production and publication as well. If the title went on to be a runaway hit, the writer would not benefit again financially until the term of the licence expired and had to be renewed. The 1814 Act developed the term further to twenty-eight years or the author’s lifespan, whichever was the longer, and this was then lengthened further in the 1842 Act to forty-two years or the author’s life plus seven years, whichever was the greater. The international Berne Convention of 1886 (a document to which the USA did not become a signatory for another hundred years until 1989) agreed its term as the author’s life plus fifty years, forcing the subsequent 1911 Act to include the same minimum term. Now the term has settled at the author’s life plus seventy years.

The first Act in 1710 was devised for books and the book trade, but throughout the nineteenth century the subsequent Acts widened the remit to include lectures, engravings, dramatic works and designs. The twentieth-century changes added cinema and broadcasting, computer programmes and games. The passing of each new Copyright Act followed years of heated debate about where the balance of benefit should lie, with the creators or the producers/distributors, with the writers or the book trade and wider industries. From a twenty-first century point of view, extending the term can look like a benefit for the creators, but if the writer had to assign the title to the printer or bookseller for an outright fee, the common practice in the nineteenth century, the extended period is only of benefit to the producer of the book, not the creator. The balance between the individual and common good has always been delicate and it will remain so, but history has shown that the legislation is flexible and up to the task, and is constantly under review.

Although during the eighteenth and nineteenth centuries it was usually the booksellers, printers and publishers who made greater financial gains from the sale of books, creators and writers did eventually benefit too. The book trade and creative industries of the time lobbied Parliament and gained legal protection for the works they produced and invested in, but it was really only in the twentieth century that it became more common for contracts to include royalties for copies sold and percentage splits for rights sales. Being a literary agent myself, I like to think that it was the emergence of literary agents at the end of nineteenth century that ensured that writers, the original creators, were finally paid what was due to them but it is clear that this would have been impossible to achieve without the legislative framework to protect the creators’ work.

Anyone who wants to know more about the historical perspective of copyright reform can read books and journal articles by several writers including Catherine Seville, John Feather, Mark Rose and Iain Stevenson.

5. Is the Current Copyright Framework fit for Purpose in Relation to Writing, Reading, and Publishing in the Digital Age?

Max Whitby, App Publisher

The regulatory framework controlling the publication, copying and distribution of content evolved in a technological and commercial environment very different to the digital landscape in which we now find ourselves. Our copyright laws were shaped in an age when IP was published in physical form, copying cost money and distribution was far from free. In that context it made practical sense to restrict the right to copy in order to protect the livelihoods of authors and publishers, who had to make a considerable investment in order to reach market.

Today it still costs time, creative inspiration and skilled effort to generate valuable IP. That much has not and is not likely to change. And the financial and creative investment involved remains something that the copyright framework should continue to protect and encourage, so that artists may eat and their audiences may continue to enjoy their output. But attempting to implement this protection through the blunt instrument of controlling the right to make and distribute copies of a work no longer makes sense.

As the digital pioneer Stewart Brand remarked in the early days of the information revolution: ‘Information Wants To Be Free’. Another way to express this thought is that the ability to discover and communicate information (particularly the sort of protected information that is considered intellectual property) is a fundamental strength of our digital society. It is the engine driving the generation of ideas. We seek to stop this process (for example by attempting to prevent copying) at our peril.

Savvy authors and publishers know that free distribution of their copyright work is often an excellent thing. In crude commercial terms, piracy can sometimes be considered a highly effective form of marketing. Of course this depends on enough people being willing at some point to pay for content. But often discovery comes about through exposure to the free stuff. The challenge to digital publishers is to give away enough to encourage wide distribution. And then to offer real persuasive value in the form of additional content, enhanced functionality and community engagement that comes with purchase.

Let me give an example from my own app-publishing company Touch Press. On several occasions in the past year we have chosen to give away part or even all of one of our titles freely in order to reach a substantial new audience. The most spectacular example is our children’s app Barefoot World Atlas. Apple selected this as one of their favourite apps of all time and invited us to give it away free for a week to celebrate the fifth anniversary of the iTunes App Store. We happily agreed and in seven days the app was downloaded four million times, vastly increasing our installed base. Now we are about to release a major update that will offer this expanded audience a range of additional content via in-app purchase.

So what needs controlling is the right to make money from copyright work: in other words to charge an audience. A shift in the legal framework towards this goal will continue to protect the fountain of innovation, without paradoxically blocking the free flow of ideas. The price of such a change will be to oblige authors and publishers to deliver real value and convenience to their audience in those things they choose to charge for.

November 2013

---