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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Piracy of Digital Content

Peter Kilborn | 11/11/2009

Ever since digital delivery has come to be taken seriously by the publishing industry publishers have been desperate not to repeat the mistakes made by the music industry in allowing illegal file sharing to undermine its core business. The music business is superficially so similar to the book trade that there is a tendency to overlook the very obvious differences.

Nevertheless, piracy of digital content is a paramount concern – as indeed piracy of printed books in the developing world has been for many years – though sometimes it becomes unclear whether the concerns are about publishers’ lost sales or the abused rights of authors and other copyright owners. The Publishers Association here has made the fight against piracy one its core issues, working with local police authorities in India and elsewhere to bring a number of high profile and successful legal actions against pirates of printed material, and tracking down sellers of illegal digital material. It has set up a Copyright Infringement Portal on the web to enable members to report copyright abuse.

Last week Victoria Barnsley, chief executive of HarperCollins UK, addressed the All-Party Parliamentary Group on Publishing, a group of members of parliament interested in the media and copyright industries, supporting a government proposal to oblige ISPs to withdraw services from those found guilty of illegal file sharing. This is included in the Digital Economy Bill, which is intended to bring into law some of the recommendations made by Lord Carter in his Digital Britain report  earlier in the year. Although the All-Party Group has no legal teeth and can in practice only lobby for the shared interests of its members, it is an obvious way for the industry to make its voice heard within parliament. Barnsley stressed the value of the publishing industry to the British economy, contributing an estimated £5bn to the domestic economy, and the need for copyright to be enforced, particularly in the digital space, if its strength was not to be undermined.

That the government is proposing legal redress against illegal file sharers is in some measure evidence that the industry is being heard. Nevertheless, it must be acknowledged that other media industries – music, film, and so on – are threatened to a greater extent than publishing. It is easy to see how illegal downloading of a music track or a movie deprives legitimate copyright owners and licensees of a reward for their intellectual property and a sale of their product; books and their content don’t make quite the same impact. How society or governments balance the force of the law (in something like the internet where enforceability is next to impossible) with the realities of daily life is a tough call. Publishers are obviously right to worry about piracy and to press for governmental and legal sanctions against it, but they are probably lucky their very livelihoods are not at immediate risk.

On another matter, there seems to be general agreement that the international launch of Kindle was not a mould-breaking event. There will be, as I predicted previously, a more significant moment when Kindle is supplied locally and competes directly on price with locally available readers. However, with growing indications that dedicated reading devices are not the future, it may be that Kindle won’t have the same kind of success here as it enjoyed at launch in the US. As Kindle’s USP – its wireless connectivity – becomes increasingly copied and probably becomes an essential requirement for e-readers, it begins to look as if the competing devices will have to measure up against the more basic criteria of overall functionality, operating efficiency, look and feel, and of course price. That isn’t good news for the e-reader industry. 

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Current Issues

Peter Kilborn | 11/05/2009

Away from the glamour of e-readers and smartphones which tend to dominate the trade press headlines agenda, the industry has some hard thinking to do if digital is really going to become the dominant delivery mechanism for content, overtaking printed books, some say, within a few short years. Although some of the mechanisms of making books will survive unchanged – many editorial and production procedures, for instance – many won’t. What about the warehouse extensions publishers have been so ready to finance in the last decade? What about the investments in additional shop floor space Waterstone’s and others have made, acquiring more and more stores and more and more space to fill with – fewer books?

It may not happen. I gave a presentation at the International Supply Chain Meeting at the Frankfurt Book Fair this year showing how wrong digital predictions have usually been, particularly where timing is concerned, and I remain sceptical about the universal substitution of printed books by digital content. But if I’m wrong, and the industry is going to survive and prosper, it needs to be ready to cope with the consequences.

One of the big issues here is identification of e-books. The UK industry (unlike the situation in the USA) has by and large accepted the official International ISBN Agency’s position that every digital manifestation should be assigned a separate ISBN, appreciating that this admittedly potentially cumbersome mechanism is the best way to trade digital products in the supply chain, enable them to be discovered using trade-wide databases and in a wider search context, and facilitate reporting back to publishers and to such services as Nielsen BookScan, the UK sales data agency. Despite this, there remains concern about ‘metadata bloat’ – the number of product records which may have to be maintained for a single entity - and the number and cost of ISBNs (for we have to pay for them over here) such a policy demands. Some publishers, ignoring the wishes and needs of their reselling partners, are assigning a single ISBN to an .e-Pub file even though that particular file is never going to be traded. This could prove an expensive mistake if the digital market doesn’t develop in the way they expect.

Another issue is the standardization of sales reporting. At the moment resellers and intermediaries supply retrospective sales data to publishers in a variety of file formats and at irregular intervals. Whilst this may just be a time-consuming annoyance for the recipient publishers, who generally deal with them using manual processes, it is clear that as the number of intermediaries and the amount of traded content grow as they must if digital is to have a significant impact on publishers’ revenues it will become an unmanageable burden unless automated processes are established. The time to do that is now, not when the pressure becomes intolerable.

A third – and most contentious – issue is that of territorial rights in digital content, but that probably needs a post of its own… 

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