Combating the anti-copyright climate

Sarah Faulder
Opinion - Publishing Monday, 8th April 2019

Sarah Faulder on challenges to copyright and what publishers can do to tackle them

Copyright remains fundamental to the economic success of the publishing sector. The Publishers Association's (PA's) statistics published in July 2018 reveal that the turnover of the sector is at least £5.7bn, with more than half of this coming from exports of UK publications. Publishing makes a significant contribution to the creative industries sector, which overall is now worth more than £100bn - that is 5.5% of the UK economy - and it is growing at nearly twice the rate of the rest of the economy.

And yet the fundamental principles of copyright are being increasingly challenged by those who do not want to have to pay for access to content, which all too often they can download for free from the internet. Copyright is traditionally a property right belonging to creators and those who invest in them. It allows them to maintain control, subject to certain limitations, over how creative works are used and paid for. This is important as it incentivises more creativity. There is a growing view, however, on the part of users that they should also have rights - rights to use the world's content without permission or payment. This is not a sustainable model if our creative economy is to continue to thrive.

A combination of developments is fuelling this anti-copyright climate. The root causes can arguably be traced back to:

• The extension of the term of copyright by the EU in 1993 to life of the author plus 70 years from life plus 50 years. The extension was and still is perceived by many as allowing business to lock up content for much longer than necessary. This ignores the fact that most copyright owners want to make their content available, as that is how they generate revenue.

• The evolution of the internet with a culture that encourages the view that all information should be free and open. Many consumers' first exposure to copyright was when the record industry started to sue individuals for illegally downloading songs from Napster and from the numerous illegal download sites that followed after it was closed down. The more traditional broadcast model of disseminating music on radio or TV relied on b2b licensing to which listeners were oblivious.

• The creative commons movement, which describes itself as "the global community that breaks down the walls that keep people from sharing their knowledge". This suggests, wrongly, that copyright per se prevents sharing.

The tech giants have been turning the resulting anti-copyright sentiments to their advantage and free-riding on the back of the owners of copyright content.

But the free use of copyright content is simply not sustainable. The ecosystem which is dependent on copyright supports the creation and production of high-quality content for the benefit of society as a whole. Money flowing through the system is essential if this ecosystem is to survive. And yet we are seeing a definite shift in some countries towards giving users their own "rights", which could effectively trump the rights of copyright owners. We have already seen the devastating consequences of user rights for educational publishers in Canada.

Other governments are giving serious consideration to relaxing copyright by introducing more exceptions that allow free use. The American doctrine of fair use is being promoted by Google and others as the solution to freely accessing content, which they perceive to be locked up. Fair use tests the boundaries of free use through litigation, an enormous expense for the defending copyright owners. Australia, Singapore and South Africa are among those that have been considering this option.

Recently we have seen copyright protection for publishers being threatened in the EU. In 2015 publishers lost their right to share in the levies collected around Europe from private copying. There has been a concerted effort to recover the position for publishers ever since in the very slow-moving draft European Copyright Directive.

In the same directive, which has attracted unprecedented levels of opposition driven largely by the tech giants, there has been a struggle to preserve the commercial interests of publishers in the drafting of an exception for text and data mining, to prevent any expansion of the exception for education and to drive forward a new right for press publishers.

If publishers are to retain and strengthen their copyright position they must use their rights effectively. Publishers need to:

• Get better at explaining their role and importance and the value that they contribute.

• Audit and manage their rights efficiently so that they can: exercise their copyright and monetise their assets effectively; make their assets available through licensing; and enforce their rights when they are infringed.

• Engage in the copyright debate through their trade associations and other industry bodies representing publishers, including not least Publishers' Licensing Services.

Sarah Faulder is chief executive of Publishers' Licensing Services. This article, reproduced from the Publishers Weekly/BookBrunch London Book Fair Show Daily, is based on her presentation to the IPG Autumn Conference 2018.