Article: What goes around comes around: the copyright roundabout

August 2013

All Areas

By Andrew Potter


It is said that when David Cameron was recently in Brussels, he was asked by other leaders why, when the UK was probably the richest European country in term of creativity, he wanted to water down the copyright law. This apparently made him sit up, and there is increasing evidence of a sea change from the time when Google appeared to be dictating the new government’s policy in this area.

With copyright, governments tend to behave to a pattern: when they are newly elected, they are immediately lobbied by powerful users who claim that copyright stunts business development. Then they start to learn what it is all about and realise that creativity is a business too, that many creative people can be useful and prominent advocates, and that the likes of Adele or Anthony Gormley can be a cause of national pride. So, instead of watering it down, successive governments during the past century have been persuaded with each new law or amendment to strengthen rather than weaken copyright.

The latest cycle began with the Hargreaves Review. It dutifully asserted that copyright laws are ‘today obstructing innovation and economic growth’. It offered a yellow brick road: ‘…. if the Review’s recommendations are implemented in full they will add between 0.3 per cent and 0.6 per cent to the UK’s annual GDP growth, not counting significant reductions in transaction costs for the public and private sectors, which the team puts at £750 million a year.’  Some very well informed people are finding it increasingly difficult to think where this Oz figure is going to come from. Not from format-shifting which just makes legal what everyone does already. Nor from allowing people to parody other people’s work without payment.  These well informed people? Well John Whittingdale MP for one and Richard Hooper for two – both publicly airing their views at the recent Publishers Licensing Society AGM. Whittingdale, who is Chair of the Commons Culture, Media and Sport Select Committee, is open about his support for creativity and copyright and the need for an approach making incremental adjustments rather than sweeping reforms. It is also clear that complaints about manipulative mandarins at the UKIPO, the rapid turnover of ineffective IP Ministers and the confused split between Ministers’ IP and Creative Industries departments and briefs are not falling on deaf ears.

Richard Hooper has a class act. He is an English gentleman. As the Americans might have described him at the recent World Creators Summit in Washington DC, he is ‘a piece of work’, fresh from a Cherwell punt on an Oxford summer’s day. He is in charge of implementing a recommendation from the Hargreaves Review of a Digital Rights Exchange; he is Chair of the Copyright Hub which ‘will be a portal with intelligent connections to a wide range of websites, digital copyright exchanges and databases in the UK and around the world, with the focus on making copyright licensing easier and cheaper for use in the digital age’. Hooper is not afraid to brandish sticks and carrots to get the industry on side. Sticks: ‘if you don’t make it easier to access rights then the legislators will have to bow to pressure to reduce the strength of copyright’. Carrots: ‘if you make it easier for people to access copyright then you will have a case for greater government action to combat piracy’. One of his major bug bears is ‘sloppy data’ amongst the collecting societies. In music they have built many individual versions of the same repertoire of songs around the world, resulting apparently in a 10% error rate, misallocating £millions. He applauds the UK industry for moving from defensiveness into action with the setting up of the Global Rights Database with the Swedes and Germans. In Washington at the recent Creators Summit he skewered John Lo Fromento, the CEO of ASCAP over the absolute lack of collaboration between ASCAP, Harry Fox Agency and BMI. ‘We talk to each other’ was the best mumbled response Lo Fromento could give to Hooper’s hearty ticking off.

There are of course flies in Hooper’s ointment. His enthusiasm for the American preference for registering copyrights to prove ownership omits the likelihood that a photographer will have to pay to register each of thousands of photographs. Connoisseurs of the Berne Convention will also be uneasy. And how much notice are the global companies, whether Pearson or Universal, going to take of his digital herding in their onward march to world domination? The increasing amount of direct licensing of digital usage means that, for better or for worse, they can make their own rules.

Meanwhile the European Commission maintains its 10+ year old stance of a Guardian leader. On the one hand the Googles and their users must have access to copyright items; on the other hand our defining culture needs supporting. Hell, what are we to do?

But another reason for optimism, if you like copyright the way it is, is that the same big users who complained about having to pay for other people’s content are now developing their own. Of the big four ISPs, BT, Sky, Talk Talk and Virgin, three are investing in sport and soaps. In any case, Hooper says, they are on the back foot with public issues such as tax, child porn and privacy threatening their goodwill.

Interestingly Whittingdale remains quite upbeat about the Digital Economy Act. While it may be shaped more like a car wreck than a silver bullet, it will still, he believes, act as an effective deterrent to a significant number of users. Having said that, he admitted that if you Google ‘MP’ you get MP3 Skull at the top of the list– the current Johnny Depp of pirate music sites.

What is different about this particular copyright cycle is the global nature of digital provision and access.  It was hard enough catching and prosecuting Singapore or Hong Kong based pirates of books and games software in the pre-web era. Closing down uploads in far flung and lawless territories is a much greater challenge. No sooner does a LimeWire close down but an MP3 Skull opens up. Hargreaves and Hooper are primarily concerned with UK law and practice and it will be interesting to see the extent to which the rest of the world buys in to their proposed reforms.

In the USA, Victoria Espinel, the White House’s advisor on copyright, advocates a multi-faceted approach, developed to protect brands (she is particularly concerned with fake pharmaceuticals). This includes voluntary initiatives from the private sector and the ISPs, work with credit card companies, and ‘educational alerts’. A recent attempt to push through the radical Stop Online Piracy Act, which would have barred the conducting of any business with offending web sites, failed. It is clear that the White House’s incremental approach is echoed by the representatives of the legislature and customs.

The US approach also reflects the broader current reality of copyright’s status within the IP framework:  songs, recordings or books, no matter how successful, are not  the dominant commodities. The big IP player/driver these days is the value of branding, when Universal Music’s $4bn annual revenue has to be placed in the context of the value of the Colgate brand which, at the bottom of the top 100, tops $17bn.

So Mr Cameron is surely not just listening to the creative industries. His ear is probably being bent by the likes of Greg Dyke who, as the new Chair of the FA, will be concerned about protecting the Premier League’s media rights, and by James Dyson, – and by the shining panoply of British industrial creative culture in the broadest sense. The copyright cycle now operates on a world-wide field. The big question is whether and how this government and its fellows around the world  are going to start playing the same team tactics.

Andrew Potter is a former publisher, a former Chair of PRS for Music, and now a senior lecturer at Buckinghamshire New University.

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