Copyright: are we stretching it to breaking point?

William Bowes
Opinion - Publishing Wednesday, 20th March 2019

Copyright has proved to be a remarkably elastic principle, writes William Bowes. But there is a risk that the Digital Single Market will stretch it too far

There are thousands of unanswered (and perhaps unanswerable) questions about Brexit. One that receives less attention than any is what exactly the Prime Minister meant when she said we would "leave the Digital Single Market" but remain aligned on our approach to Intellectual Property (IP). How could this be, when the EU's flagship IP policy was the Digital Single Market? While I'm sure this conflicting message came about more by accident than design, recent months have shown there is a rationale for differentiating between the two that could spare some political blushes.

Copyright and the DSM
That rationale can be found by comparing the core policy purpose of copyright and the core policy purpose of the Digital Single Market (DSM) copyright file.

Copyright was created in 18th-century England to encourage learning. Its purpose was to create an ecosystem within which the information and knowledge society needed could be created and accessed while ensuring available levers for issues arising from inaccurate or illegal thought. Over the subsequent 300 years, the core legal concepts it promoted and the creative supply chain built within them proved to be remarkably elastic, flexing and stretching to encompass all manner of new technological innovations, political developments, user needs and a globalised and (finally) a digitised economy.

The core policy purpose of the DSM is to create just that - a single market for digital products and services across the European Union. It is a package of measures, some of which relate to copyright and some of which don't. But the copyright file is proving to be hugely controversial, particularly due to disagreements around Article 13, the so called "value gap" provision.

I would suggest this is because while a small number of the DSM copyright file's provisions relate to the core policy purposes of copyright, many do not. Instead, copyright is being conscripted by politicians and policy makers in an effort to solve three other policy objectives - completion of the Single Market, a context of promoting scientific and technological "innovation" rather than "creativity", and competition law (anti-trust) issues arising from the dominant position and behaviour of large technology platforms.

Perhaps this attempt to try to twist copyright into a shape that can solve macro problems that go well beyond copyright's normal sphere is creating the legal and political tension that may ultimately mean the package does not pass and/or fails to achieve its original objectives.

Snapping the elastic?
Which brings me back to the elasticity of copyright. We keep being told that "copyright must change" and "reform is necessary". But perhaps it is no longer possible to expect copyright to constantly contort itself into something for which it was not intended. It is there to incentivise and reward creativity while also ensuring that society has the books it needs. It has been manifestly successful in this regard. Indeed, I would suggest that it is precisely because it has been so successful that it is now under such threat.

We have reached a point where it seems so inconceivable to any politician or policy maker that we would ever have a world without enough books, so why build policies to incentivise their creation? Policy focus is now on "democratising knowledge" and ensuring as many people as possible can tap into this rich and (they wrongly think) inexhaustible natural resource.

What has all of this got to do with Brexit?

For that reason, irrespective of where DSM ends up, there is no doubt that we have to win the case for copyright again. While the UK government has not as yet come up with any radical or different proposals to address concerns about the way 21st-century copyright can continue to achieve its policy objectives (perhaps in preparation for a world where EU law no longer applies in the UK), it is proposing a slew of reforms to tackle the policy objectives of DSM, including:

A Digital Services Tax
A Digital Charter
A review into online harms
A review into media sustainability
A digital competition review
A new centre for data ethics
A new Open Access policy

All these initiatives are new. Many may founder. Brexit may not even happen. And none of the above is certain to provide policy solutions to the challenges facing UK book and journal publishers.

But the interesting thing is that none of these is explicitly about copyright. As the ongoing UK Open Access review shows, there are significant challenges for publishers when industry regulation is made outside the copyright framework.

Perhaps DSM shows us that we are reaching the boundaries of the many digital policy issues copyright might reasonably be expected to solve on its own. The UK is beginning to think afresh about its approach to digital regulation from a social and economic perspective. Maybe it will come to realise that it is better to leave copyright to do what it does best than risk it snapping in two.

William Bowes is director of policy at the Publishers Association.

This article first appeared in the Publishers Weekly/BookBrunch London Book Fair Show Daily.

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