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Illustrated publishers have been left “aghast” by the the government’s recent decision to fast-track the implementation of new copyright law and are now discussing the possibility of resorting to a judicial review with the Publishers Association (PA).
Legal counsel and publishers from Thames & Hudson, Laurence King, Quarto, the V&A and Simon & Schuster were due to discuss their “options” with the PA yesterday (25th April) in the hope of mounting a defence against the government’s decision to refuse requests for a longer transition period for new legislation around 2D images, which they say has left them with an “impossible task”.
The government’s decision to bring legislation into force on 28th July requires publishers to clear or license rights for all 2D images in books containing “works of artistic craftsmanship” - a response that has been described as “bitterly disappointing” for those affected. As it stands, it means publishers will need to conduct an extensive review of “each and every” title, across front and backlist, to ensure images don’t infringe against designers' and rights holders' newly extended rights. A consultation at the end of last year heard publishers concerns but ignored them.
Julia Ruxton, picture manager at Laurence King, said judicial review was something "we will have to consider".
"The (government) hasn't really left us much option," she told The Bookseller. "They've done nothing but moved the date forward [when] the majority of people who responded were against it."
She added: "We have to take a view on whether we 'publish and be damned'...The law says we ought to make a decision on every photo, decide if is there anything of 'artistic craftsmanship' we need to clear, find out whose copyright it is, and then clear it retrospectively across all the books we've got out there...If we did do that, everyone would have to down tools. And we still wouldn't be able to do it in time."
The practical task involved for publishers to retrospectively license images was described as “mammoth” by Bloomsbury’s Kathryn Earle, who called into question the government’s competency, going against feedback offered in consultation and given the “impossible" administrative strain the revised deadline still places on publishers.
“Certainly it’s tremendously disappointing," she said. "Beyond disappointing, although I’m not a solicitor, I would question if it is legally sustainable. It’s quite an impossible task and the government hasn’t taken into account all the ramifications, which are industry wide. It’s not just illustrated publishers that will be affected. Images are used in other instances, covers, etc. It’s any instance of image use where legislation is going to come into effect. [In terms of what needs to be done by 28th July], just the review of the content a publisher has …for larger publishers, we have thousands and thousands of ISBNs. The systematic review of each and every single book would be an absolutely mammoth task. Even implementing something like that is a Herculean task. I just don’t think they understand the extent of the issue."
The government has reportedly attempted to reassure publishers that some rights holders (the furniture manufacturers who originally instigated the acceleration of legislation through judicial review) weren’t interested in pressing their rights against publishers. But this “cavalier” observation has been of cold comfort to publishers for whom the alternative is to be left open to being sued.
"I think that’s a really cavalier comment, because we just don’t know, do we," said Natalie Kontarsky, associate director for legal and business affairs at Thames & Hudson. "Some of them won’t [press rights] because they realise the service publishers do in promoting design, but then others, particularly estates, may take a very different view and say this is a traditional income stream. We just don’t know.
“At the very least it’s bitterly disappointing, we really are quite taken aback and shocked by the turn of events. Because the whole area is so complex and we don’t really know where we stand, means it is ripe for a court case. And no publisher wants to be that court case, do they?”
The lack of clarity surrounding the new legislation is an issue that even the Law Society has taken up. In its consultation response, it said there was "uncertainty" over which items would qualify for copyright protection and urged clarity "if there is to be any predictability as to those items which are to be affected".
This lack of clarity, combined with the appearance that the government is taking the side of foreign interests over the UK publishing industry, has been summed up as "very sad" by Kontarsky.
She said: “[The government] has been railroaded into this line by these three furniture manufacturers' judicial review; they’re not UK companies, and it’s not as though the law is even certain or clear. They won’t give us clarity, they won’t even define the ‘works of artistic craftsmanship’ which is key to this whole thing."
She added: "Every which way we’re being penalised... it feels that somehow our interests as publishers - given what we contribute to export - is not a very high priority for this government; and it’s very sad actually."
The Society of Authors said that the lack of an extension to the transition period is "particularly worrying as the delay in confirmation has resulted in a shorter time to adapt".
"The SoA shares these concerns and supports the PA," it added.