A mind numbing prospect

Peter Kilborn | 11/25/2009

The Digital Publishing Forum of the UK Publishers Association held a seminar last week on legal issues for digital publishing, addressed by the well-known media lawyer Laurence Kaye and the PA’s copyright counsel Hugh Jones. Unsurprisingly, high on the agenda was the future of copyright in the networked society. Perhaps more surprising was the greater degree of confidence apparently being shown by the UK government in the broad structure of present copyright protection. Much was made of the fact that the ‘content industries’ are the largest single contributor to the nation’s wealth, especially after the financial services industry crumbled to dust in the banking crises of the last two years. Politicians and their officials have become fearful of undermining another of the UK’s dominant industries.

It is widely believed outside the content industries themselves that copyright is dead, especially copyright in any kind of territorial context, as free content on the web becomes ever more available and ever more taken for granted by users. There has been a proliferation of official reports in recent years which could have given momentum to this assumption. But the Gowers Review of 2006  gave broad support to the principles of copyright – that creators and licensors are entitled to a reward for their labours – and the Digital Economy bill now before parliament, which I mentioned in my last post, has emphasized the point by proposing sanctions against illegal file-sharers. A new publication from the Intellectual Copyright Office, entitled ‘Copyright: the Way Ahead’ , further endorses the value of the existing system.

The speakers at the seminar, however, made it clear that there was still much to be done by the industry to shore up the fragile principles of copyright protection in the digital world without frontiers. There would be a need for industry-coordinated action and some positive proposals. The most helpful route appeared to lie in an extension to collective licensing arrangements to cope with the massive increase in the use of copyright material on the web and the distribution of revenues to copyright holders – and in making it more transparent and automatic. At the same time the industry may have to become more flexible in some areas, working with legislators to allow new exceptions to add to those which already exist for libraries, education and for disabled people.

Mass digitization is not just about Google, even if copyright holders outside the US have long realized that the Google settlement has repercussions for them too. A portal uncomfortably called Europeana (www.europeana.eu) already exists within the European Digital Library and contains much copyright content; and the British Library is in the throes of a massive digitization exercise for its book and newspaper collections. The issue of orphan works (works where no known copyright holder can be traced) is being taken seriously in Europe; and European law does not currently allow orphan works to be republished without permission (by definition impossible to obtain). An EU project called ARROW is looking to link up various national databases containing information about rightsholders to create a Europe-wide source of information to those seeking permission to republish orphan works, and the Digital Economy Bill is expected to allow orphan works to be licensed under strict control by the government, with provision for payment should a rightsholder emerge. It is hoped that this may as a result of these initiatives alleviate the orphan works problem, a problem which existed only in a much diluted form prior to mass digitization.

All this is a long way from the glamour of e-readers and i-phones and the mass market dissemination of digital content; but it shows how complex the landscape has suddenly become and the issues the publishing industry must confront in the future. It must be remembered that, though these initiatives and the quest for legal clarity are taking place in the UK, or at best in the European Community, the same issues confront every country and every publishing industry, in the context of each legal system, case law and precedents. Meanwhile, the internet continues to operate largely outside the law, defying territorial boundaries and making local regulation next to impossible.

It is a mind numbing prospect.

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