In his column published in The Bookseller on 15th February, Richard Mollet, chief executive of the Publishers Association, takes aim at CREATe, a new academic research centre investigating “copyright and new business models in the creative economy”.
According to Mollet, at least three things are wrong with CREATe: (1) The academics involved in CREATe are prejudiced in favour of copyright reform; (2) CREATe’s research programme ignores successful British companies; (3) More generally, academic research is unlikely to be helpful for creative businesses because academics lack direct experience of working in the sector. I will address these points in turn.
(1) Do we need copyright reform? It is indeed a premise of the establishment of CREATe that the digital environment is challenging copyright law as we know it. Over the past 20 years, much of the lobbying for copyright reform has been led by organisations representing established content businesses, such as the British Phonographic Industry and the Publishers Association. And largely, their project has been a legislative success. We have seen the WIPO Internet Treaties of 1996 (implemented in Europe with the 2001 Information Society Directive), which created a new exclusive “making available” right, and added a second layer of protection for copy protection and rights management technologies.
Penalties for infringement and circumvention were tightened, bringing the consumer into the ambit of criminal law. In 1998, the US extended the term for works of corporate ownership (so-called “works for hire”) from 75 years to 95 years, and the EU followed with the Term Extension Directive of 2011, extending the copyright term for sound recordings from 50 to 70 years. In 2010, the UK passed the Digital Economy Act that contains complex provisions that for the first time involve intermediaries, such as Internet Service Providers, in the enforcement of online infringement of copyright.
All these interventions went in one direction—towards the vision of a closed circuit of licensed content that would allow the creative industries to continue business as usual. The focus of legislative reform was firmly on stronger rights, and controlling unruly consumer behaviour.
Looking at the state of the music and publishing industries today, this strategy does not seem to have delivered. The British record industry has withered, EMI was sold, and now it appears to be the publishers’ turn. It is arguable that by focusing on enforcement, the copyright lobby overlooked the real drivers of change, which turned out to be the giant digital platforms that became an unavoidable part of the chain to the market. Bargaining power indeed is shifting, and copyright law may be implicated in ways not anticipated. New thinking is required. CREATe’s research agenda considers copyright afresh, not as an end in itself, but in the context of business models.
British success story
(2) What does the CREATe research programme offer to UK creative businesses? Undoubtedly, the publishing industry is a British success story. Of the more than 100 members of the Publishers Association, around a quarter have more than 250 employees (and are thus not SMEs). This still leaves large numbers of small firms, which in creative industries such as music or games are the sector’s main employers. From a policy perspective the key distinction, however, is not between large and small companies but between “incumbents” and “insurgents”. They speak with different voices, and face different challenges. Mollet’s instincts are with the incumbents, and there is nothing wrong with that. Still, incumbents need happy customers as much as anyone, and insurgents are usually much better at sensing new needs or disaffection. Where there are large swathes of unhappy customers—for example in relation to research publications (witness the data mining debate)—the reflex to reach for stronger rights and enforcement may have similar results as it did in the music industry. We don’t know but we can find out. This is what research is about. This leads us to the third question, why do we need academics to do it?
(3) Mollet peppers his column with a range of pejorative terms: “academic gifthorse”, “collection of intellectuals”, “characters” who adopt views “before a single stroke of work has been done”, their conclusions “unsullied by contact with the commercial realities of life”. The voice of the cynic seems to assume that there can be no independent research, and the voice of the authoritarian resents dissent. This bleak outlook on the academic world is a break with the great tradition of the Publishers Association, commissioning copyright scholarship that is capable of reflecting on the trade, as in the eight magisterial volumes of copyright cases produced by Evan James MacGillivray for the PA between 1905 and 1949. More recently, academics have campaigned against a change in the law (Clause 65 of the Enterprise and Regulatory Reform Bill, increasing the term of protection of copyright in mass-produced designs from 25 years to the life of the designer plus 70 years) that might harm fragile publishing interests (e.g. books containing images of artistic designs).
At the launch conference of CREATe in February, contributors included musicians, labels, collecting societies, authors, publishers, games developers, broadcasters, and digital intermediaries, with a range of mini case studies that reflected on the transition from analogue to digital, as well as “born digital” ventures. The diversity was truly impressive. CREATe is open for business.
Martin Kretschmer is professor of Intellectual Property Law at the University of Glasgow, and director of CREATe (create.ac.uk)