If the roots of US and UK intellectual property traditions are more public-interest-oriented than author-centric, then over the course of the 20th century that interpretation of public interest changed. An assumption took hold that the extension of protection of what is mostly corporate investment in ideas, and the associated social and economic benefits of corporately-owned products, would serve the public interest better than simply making those ideas accessible and exploitable by the general public.
The economic growth of media, technology and communications companies in the 20th century may be testament to the plausibility of this assumption, but it is a patronising assumption which is being challenged hard in the public sphere in the 21st century.
Eldred v. Ashcroft (2003) was a hard-fought and highly publicised US legal case which challenged (unsuccessfully) the US Copyright Term Extension Act (1998). The plaintiff’s argument, led by Lawrence Lessig at the Supreme Court, was that it was unconstitutional. The retroactive extensions of copyright rendered meaningless the Constitution’s statement that exclusive rights should only be granted for ‘limited times’.
Lessig also argued that there had been insufficient scrutiny to ensure a fair balance between freedom of speech and the interests of copyright holders, and that there was no empirical evidence presented to demonstrate the public benefit of transfer of public property into private ownership. Eldred v. Ashcroft is just one example of a fast-growing body of opinion that copyright law, as a mechanism to benefit society, is increasingly obsolete and ineffective in the digital age.
Recognizing at least some of this evolution, institutions in the US, UK and Europe have very publicly acknowledged the need for copyright reform. I opened this chapter with Maria Pallante’s recent call for ‘the next great copyright act’. Similar calls have been made at regular intervals in Europe, such as the 2012 Lisbon Council address by Neelie Kroes, the Vice President of the European Commission responsible for the Digital Agenda. ‘The legal framework has to respond’ she demanded.
In the UK, the 2011 Hargreaves Review captured the political tone:
‘we have sought never to lose sight of David Cameron’s “exam question.” Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed .’
Although Hargreaves, via the British prime minister, implicitly invokes the Statute of Anne, the overarching principle of ‘the encouragement of learning’ has been clearly replaced by one of economic growth through innovation. Emphasising ‘the great national importance’ of the British creative industries, the report claims that their digital export value ranks third behind only engineering and financial and professional services’ (p.3). The report is balanced in its arguments, marginally in favour of the public interest over prevailing private interests, and comes up with ten well-argued recommendations for overcoming the identified shortcomings of the current law. Some are more concrete than others, but there are none which could be described as radical reform.
The first recommendation echoes that of previous government commissioned reviews: that evidence of measurable economic benefits should drive policy rather than the lobbying of interested parties. Although Hargreaves does not take a position on the most sensitive topic of copyright term, the report does cite the EU extension of protection on sound recordings from 50 years to 70 years as an example of policy-led decisions, rather than evidence-based policy.
Another issue requiring evidence-based assessment is the implementation of the Digital Economy Act’s (2010) new system of law which aims to track down and sue copyright-infringers, and to permit technical measures to reduce the quality, including the termination, of their internet connections. Since coming into force, the initiative to implement this key part of the Act has lost momentum, partly due to arguments over division of administrative costs between rights-holders and service providers, and due to the questionable benefits and demise of the similar Hadopi system which was earlier implemented in France. It is now questionable whether it will ever be implemented.
Many of the other UK issues requiring resolution identified by Hargreaves are similar to US issues outlined in Pallante’s speech, namely:
a broader and clearer definition of limitations and exceptions to copyright, similar to the US concept of fair use, especially around library, archives, research, education, and data and text analytics,
legislating to release for use ‘the vast treasure trove of copyright works which are effectively unavailable, so-called “orphan works” to which access is in practice barred because the copyright holder cannot be traced,
the promotion of ‘extended collective licensing’ arrangements, whereby mass rights can be centrally and more efficiently administered, with rights owners having to opt-out, rather than opt-in. The aim of this is to give content-users the benefit of a ‘one-stop shop’ rather than having to spend impractical amounts of time seeking individual deals.
Whilst the recommendations are far from being non-controversial (not least because many of them are seen to favour the new media giants, especially Google), neither Hargreaves nor Pallante could be accused of being radical. Nevertheless, it is worth examining Pallante’s position in more detail.
As a supporter of the Stop Online Piracy Act (SOPA), the unsuccessful attempt in 2011 to further expand the powers of US law enforcement, Pallante may be regarded as being conservative, albeit moderately and pragmatically, on issues of copyright reform. My first reading of her reform speech led me to believe that she was being rather timid, and it is certainly the case that someone in her position has to tip-toe through a discursive minefield, given the sensitivities of the various powerful and entrenched stakeholders.
But on closer analysis, I find seeds of a shift from the prevailing discourse towards a wiki discourse. For example, the emphasis is more on public interest and wider dissemination and usage than on issues of control. There is an explicit challenge to Congress to balance the equation of ‘what does and does not belong under a copyright owner’s control’, implying an overall diminishment of control, rather than an extension. With reference to Eldred v. Ashcroft, her remark that a court can only apply the facts and the law as it finds them, alongside a recommendation that Congress should re-weigh the equities of the public interest, is evidence of a certain degree of discomfort with the extra 20 years of copyright extension.
An explicit suggestion that the law should shift the burden by requiring the copyright-owner to assert and register their continued interest in order to achieve those last 20 years of protection is really quite radical, even if it may seem minor and remote to most people. If the principle of copyright-holder renewal were accepted, the conversation about shortening the minimum statutory term would become considerably less provocative.
Pallante also makes a reference to the case of Authors Guild v. Google which is worthy of comment. The case involved Google’s library project of mass book digitization, a process which began in 2004 and has reportedly scanned 30 million books as of 2013. Although the proposal was to show only small portions of the books, presuming it to be deemed fair use, they scanned whole books. This was seen by the publishers as a gross breach of copyright and brought lawsuits in 2005. Many of the books scanned were still in copyright, but out of print, i.e. not regarded as commercially viable by their publishers. The case was particularly interesting because Google seemed to be attempting to address one of the historic fears and arguments of the anti-copyright lobby: that copyright can have the effect of suppressing, whether for commercial or political reasons, publicly beneficial knowledge.
In objecting to the initiative, the publishers were in danger of scoring a colossal own-goal by giving a massive boost to the anti-copyright and open access movements. They therefore had to be pragmatic, and by 2008 Google and the publishers announced a settlement. It was a compromise which would let Google sell whole books and offered a subscription service for libraries and others to access the full database, with up to 20% of the book being available for free. The settlement was initially widely praised as a pioneering collaboration with far-reaching benefits for the greater dissemination and accessibility of knowledge. Perhaps unsurprisingly, it was not long before some started to object, the most ironic being Harvard University librarian Robert Darnton who had been an early supporter and participant in Google’s library project.
The perceived problems fell into three categories. The first is a curator’s concern with quality control, incompleteness or exclusion of visual materials, and integrity of scholarship, pointing out that in order to be valuable and truly accessible, digitization involves more than just scanning all available text.
The second, somewhat louder, set of objections was from outside the US borders with complaints that the settlement agreement was a breach of international copyrights and treaties.
The third and loudest complaint was that by creating a single access system, the project was essentially a monopolistic attempt to create the largest library and publishing business ever imagined, despite its proclaimed openness and non-exclusivity. Opponents expressing these concerns included Microsoft, Amazon and other corporate heavyweights. They saw a very serious competitive threat from Google so successfully and so rapidly executing its mission to ‘organize the world’s information’.
Despite an amended settlement agreement which tried to address some of the opposing arguments, the agreement was rejected by Judge Chin in 2011, to the relief of some, but great disappointment of others - not just the defendants in the case, but those who were, on balance, more optimistic than cynical about the public benefits of the settlement. Whilst other mass digitization initiatives were underway, such as the Digital Public Library of America, and the Europeana open culture project, these were a long way from matching the scale, pace and reach of Google’s initiative.
Returning to Pallante’s speech, she referenced Judge Chin’s rejection of the Google book settlement agreement as a further example of matters more suited for Congress than the courts. This again implied that she views the outcome as being a strict application of the law, but not necessarily satisfactory from the point of view of the public interest. Along with the question mark over the outcome of Eldred v. Ashcroft case, and her remark that the law is essentially unintelligible to most people, her position starts to take on the appearance of being more radical than at first glance.
To conclude on the topic of Pallante’s speech, which I imagine may ultimately carry more weight than has thus far been acknowledged, I would draw attention to what I believe may be a deliberately provocative reference. Acknowledging the duty of Congress to keep the interests of authors in the balance, she cites a New York Times article entitled Would the Bard Have Survived the Web? It is a provocative polemic which takes a peculiarly one-sided approach to the debate, presuming that all reformers are by definition against copyright and against the economic incentivization of culture altogether.
The article argues that the structure of the Globe theatre provided a ‘cultural paywall’ and that its destruction in the mid-17th century by a censorious government nervous about the disruptive influence of playwrights, is somehow analogous to the effect of an insufficiently policed internet upon the expression of 21st century commercial authors. Seemingly oblivious to the 300 years of tampering, they declare that ‘we tamper with [copyright] rules at our peril’, ‘rules that were carefully constructed by people living in the long shadow of the Dark Ages’.
The vulnerabilities in the article’s argument are numerous and provide fair game for ridicule. For example, Shakespeare predated copyright by a century and survived very well without its protection. Indeed, if copyright had been in force, his well-known plundering of the ideas and literary material of others mean that he would have been undoubtedly caught up in time-consuming and potentially ruinous lawsuits. The better question is posed by James Boyle (2011): would Shakespeare have survived copyright, never mind the web?
I find it difficult to imagine that Pallante’s citation from this particular article is anything other than a subtle exposition of the weakness in the narrative bias towards the defence of the status quo. Strategically this bears similarities to Hargreaves position that ‘the UK cannot afford to let a legal framework designed around artists impede vigorous participation’ in other sectors of society.
I have chosen to focus on Hargreaves and Pallante because I find that they are the clearest political indications thus far of a meaningful shift, albeit quite small, towards the possibility of radical reform of intellectual property law. That said, reform of any substance will be slow and tortuous. Pallante herself acknowledges that. She refers to the fact that the still relevant 1976 US Copyright Act took two decades to negotiate, with Barbara Ringer, one of its key contributors, subsequently calling it ‘a good 1950 copyright law.’
Similar expectations require careful management as far as the Hargreaves Review is concerned. For example, one of its key concrete recommendations was the creation of an ambitious Digital Copyright Exchange, subsequently re-labelled the Copyright Hub. The laudable idea was that the hub would serve a number of functions, including:
information and education about copyright, helping with navigation and signposting through the maze of copyright
a cross-sectoral registry of rights
a marketplace for rights clearance and licensing solutions
a source for extended collective licensing (i.e. a solution to the orphan works problem)
Although the Copyright Hub launched, in a very modest way, it faced some very tough challenges. The first is pragmatic. Rights are more complex than most people imagine, and it will require the establishment of technical, data, and usage standards on which consensus will be difficult to achieve. Secondly it requires the collaboration of a huge number of powerful rights-holders who will be very tentative and anxious about interfacing with, and conceding to, any sort of user-focused functionality provided by an independent service.
By way of illustration, at EMI I was the ‘business-owner’ of a project called Global Repertoire which aimed to create a similar type of hub, but just for internal use and only for the rights held by EMI. Though reasonably successful, it was fraught with negotiations with internal divisions reluctant to even slightly loosen their tight grip on clearance approvals. It took three years to deliver at a cost of several million pounds. That was one company, in one sector, so one can only imagine the complications of building a useful and meaningful hub across not just the whole music industry, but all the other rights-owning industries.
There is a third problem, which has some political sensitivity. Even if the Copyright Hub progresses, it is assumed that all rights-holders would voluntarily populate the database with their rights.
Although not made explicit, there was then be a danger that anything not registered in the exchange would be available for exploitation. For some this looks like a story of a shift towards the public interest. For others, it is a shift towards the interest of Google, Instagram and Facebook. The main potential losers are beneficiaries of orphan works, and owners of works which are generally onerous to register, or which are not subject to secure metadata tagging, such as images and photographs. Content-owner registration may not sound like an unreasonable requirement, but it implies a fundamental shift of burden, from the prospective content-user to the content-owner, signifying a return to the practice of earlier centuries, where rights had to be actively registered rather than arising by default from the moment of expression.
To wrap up this chapter, I would say that the current copyright reform agenda is modest and politically pragmatic. I fear that the time frame required to reach empirically-defensible conclusions which are rigorous, broadly-intelligible, and free of corporate and political interference, is much longer than can be accommodated by changing social practice.
Much of this change will happen, sooner or later, with or without the law. This means that the law is in danger of losing authority and practical enforceability as it drifts further from social norms and economic activity. Adhering to the law will become (if it hasn’t already) a tactical decision based cost-benefit and risk analysis.