Copyright after Brexit

To Beijing, a place usually associated with smog and mystery. But after a suffocating European summer, this year’s Beijing International Book Fair provided a breath of fresh air. For after the Brexit vote and the ruthless turmoil that accompanied it came an opportunity to get back to what we do best, namely sell rights, strike deals and make friends.

This year, UK publishing was accompanied on the plane by the new minister for business, energy and industrial strategy, Baroness Neville-Rolfe. The minister and her excellent team threw themselves into a range of meetings, speeches and conferences, all designed to support British intellectual property (IP) businesses in this complex market. As I watched this heartening sight unfold, I was reminded once again of the two pillars on which the international author and publisher community stand. The first is the freedom to publish our ideas, creations and stories. The second is copyright, a moment of 18th-century parliamentary genius that we now take for granted. Without it, how would the intangible become tangible? And even if authors still wrote, how would they be published or paid?

What has all of this got to do with Brexit? Well, so far as freedom to publish is concerned, perhaps not much. As the evolving approach to digital publishing and censorship in China reminded us, the challenge comes not so much from the EU, but from regimes who see freedom to publish only as the ugly half-sister of freedom of speech.

But copyright is a different story. An international publishing industry can only function in those markets and territories that broadly play by the same rules. That means countries adopting aligned copyright systems that not only protect their own citizens, but crucially provide the same recognition to works written by foreign nationals.

Fair use versus fair dealing

Since 1886, the primary legal means of achieving this has been the Berne Convention, which established the global copyright norms we know today. Unlike the Treaty of Rome which founded the EU, this time the UK did turn up, and that gave us a significant degree of influence in the system that emerged. Overall, the Berne Convention has been a remarkable success. However, as with all international treaties, the negotiations were fraught. Tensions arose particularly between the French-led desire for a model centred around the moral rights of the author and the Anglo-Saxon common law model, which sees copyright as a property right that facilitates a sound and effective marketplace for copyright works. The compromises were too much for some, with the US deciding to remain outside of the Berne framework until as recently as 1988.

One of the main reasons the US did so was its desire to protect its system of Fair Use against potential erosion by Berne rules promoting the narrower exception of Fair Dealing. The difference can seem subtle, but it’s important. Broadly speaking, Fair Use allows copyright works to be used without the prior permission of the rights-holder, so long as that use is in the wider interests of the public at large (factors include whether the use is educational and/or “transformative”). This was Google’s defence in the case brought by the Authors Guild. The doctrine is now increasingly seen by many common law countries (Canada, South Africa, Australia, Singapore and Hong Kong) as a solution to the demands for a more flexible copyright regime for digital works.

Fair Dealing provides for a much more limited and tightly defined set of exceptions. This model adheres more tightly to Berne and is enshrined in the EU Copyright Directive, which contains a closed list of specific exceptions that member states can adopt. When taken alongside the EU’s introduction of a special right to protect databases, and other recent policy discussions at EU level about the Digital Single Market (which, thanks to effective lobbying from the UK Publishers Association and the Federation of European Publishers, looks like resulting in a good outcome for publishers), many view the EU as currently being a very a pro-rights-holder environment.

New relationships

Sitting squarely in the middle is the UK. As an EU member state our common law copyright model has evolved to become closer to Authors Right. But as the lone common law voice in the EU, that journey hasn’t been easy. Which regime is better for the UK author and publishing community? Well, for most of us, the instinctive answer is the EU, particularly for academic and educational publishers who would (rightly) be wary of Fair Use models which include broader educational exceptions. But in truth the picture is more complex. For example, many authors supporting Open Access publishing models and creative commons licensing are also ardent supporters of Fair Use. As are many of our customers and technology partners.

Whether Brexit brings about change remains to be seen, but three things seem clear. Firstly, an international author and publisher community cannot exist without a broadly aligned international copyright system. Secondly, the international consensus around copyright exceptions is creaking (particularly around educational use), with a key fault line emerging between the EU and the common law countries. Thirdly, and resultantly, as the UK government seeks to realign its economic, legal and commercial relationships with both the EU and common law blocs, there is at the very least a policy choice to be made about what the UK’s copyright future should be and how much control we want to take back over shaping it.

Baroness Neville-Rolfe and her team were persuasively confident about the future. That is just as well, for in among the debates on free movement and Japanese cars, the government’s decision on our copyright destiny could have a long-lasting and profound impact on at least the academic and educational parts of our industry. It is now in the minister’s capable hands, and her team and the PA, lobbying government on the key issues affecting our industry, need and deserve our support. Time for a deep breath all round.

William Bowes is general counsel for Cambridge University Press and chair of the International Board of the Publishers Association.