Copyright conundrum

In theory, “reasonableness” isn’t a word with much status in the law of copyright.

The owner of a copyright may dispose of his or her rights as he or she thinks fit. Thus, in our industry, an author could charge what he or she liked for use of copyright material. In practice, of course, the marketplace intervenes and—most of the time—a reasonable agreement is reached by author, agent and publisher. Moreover, although the author could charge any amount for quotation that the law would not construe as fair dealing for purposes of criticism and review, custom and good sense (actually, the marketplace again) prevail and the author generally receives additional benefit through discussion of his or her work.

For Thames & Hudson and other publishers of art and illustrated books there is one important exception to this common sense, the relevant provisions in current law being set by the Copyright, Designs & Patent Act 1988. The reproduction of in-copyright artworks (i.e. those created less than 70 years from the artist’s death) may only be undertaken either if the artist gives permission direct or the tariffs set by the various collecting societies around the world are paid. Are these tariffs reasonable? Suffice it to say here that no commercial negotiation takes place and the number of art book publishers in each country—at a time when the museums and galleries are overwhelmed by enthusiastic visitors—is small and declining.

But now there is the threat of a further problem for illustrated publishers. The Enterprise & Regulatory Reform Bill, currently going through committee in Parliament, proposes to repeal Section 52 of the 1988 Act so that copyright of artistic works used in the design of mass-produced articles, currently limited to 25 years, is extended to 70 years from the maker’s death. Any UK publisher involved in design publishing, which has increased in significance in a design-conscious, export-earning nation, is potentially threatened.

The economics of the threat are simple to describe. Let’s say a substantial hardback novel might command a retail price of £18.95. With inexpensive paper and binding material, can the production cost exceed a pound or so? But suppose an illustrated publisher wants to publish a survey of some aspect of contemporary design with 200–400 illustrations. Often the marketplace will demand a comparable published price and—when that is not so—£29.95 is likely to be the limit. The challenges for the illustrated book are the high-quality production cost; the overheads and other costs involved in assembling the illustrations; and the substantial editorial and design costs. The result is likely to be a unit cost of perhaps £4–£6— resulting in a very different, and much lower, mark-up.

Thus such publications already have a fragile economic base and it is difficult to see how they can absorb more cost resulting from copyright fees. At the end of July last year seven law professors wrote to the Times to express their concern that the proposed change had not been thought through, in particular in its effects on publishers, museums, educators and designers themselves. Lionel Bently, professor of intellectual property at Cambridge, has helped to marshall opinion and I have myself been in touch with members of the House of Lords sympathetic to amendments to the bill.

Our industry has many copyright challenges in the digital era. National legislatures around the world are not helping by failing to keep up or failing to understand the commercial contexts in which copyright permission is given. Publishing, like the music industry before it, often seems to be over-fatalistic about what can be done (yet antidotes always begin with acquiring and spreading knowledge: no knowledge, no solution).

The Enterprise & Regulatory Reform Bill is a concrete example.  Any publisher wishing to help in the process of seeking amendment for it is welcome to email me at j.camplin [at] thameshudson.co.uk.

Jamie Camplin is chief executive of Thames & Hudson