Does copyright matter to creators?

Copyright has increasingly been subjected to public debate. Two weeks before the last UK general election, in May 2015, the Green Party, unwittingly, brought copyright to the attention of certain members of the electorate. The Green Party is a left-leaning, Green, political party with one MP in the House of commons (out of 650 MPs) and 3.8% share of the vote. On 22 April 2015, scrutiny began over one of the points in the party’s policy. This scrutiny appeared to have started on social media through discussions amongst illustrators and writers – many of whom self- identified as green party supporters or at least sympathised with their policies.

The party’s policy at the centre of the discussion was to “introduce generally shorter copyright terms, with a usual maximum of 14 years”. On 23 April 2015, several newspapers picked up on the social media debate and reported that authors and illustrators were shocked and alarmed with the Green Party’s policy: it would be an “appalling injustice” if this shorter copyright term were to come to effect. There was some confusion, as to what the Green party meant by the policy – did they mean a shorter term of 14 years after publishing or, the longer interpretation ie 14 years after the death of the author, the latter many authors appeared to be less dissatisfied with. After some to and fro, Caroline Lucas, their only MP, admitted that the party had ‘got it wrong’ and had agreed to review its policy on copyright.

The traditional news media coverage ended and this was seen as a resolution of sorts. But what is interesting is that – actually the battle about legitimacy of the authors’ beliefs about the importance of copyright duration in their writing lives continued.  Through online ethnography, it emerged that the discussion amongst authors and illustrators continued on social media even after the traditional news media coverage died. In these discussions, the duration of copyright protection simply became a launch pad for a debate on the role of copyright. There were attacks on creators that suggested they should do some ‘work’ to earn a living, or that copyright is only a means for publishing houses to make money, some suggested that writers don’t earn much as they had seen it reported in newspapers and jumped to the conclusion that as such copyright is irrelevant for them. There were misunderstandings and misgivings about how copyright functions, and also much trolling! These social media discussions served to highlight the bewilderment and frustration of many creators as to the general lack of understanding today about the role of copyright in creative worlds and, how authors make a living. Some creators even saw this as hostile public perception about artists having any rights or having a choice about how they make a living.

Some may consider these frustrations of authors rather surprising, since the “creative industries” have been accused of aggressively justifying the role and importance of copyright in the digital era. But what this story suggests is that voices and perspectives of individual creators on how they exploit copyright, or not exploit copyright, and how they navigate the current economic and technological realities to make a living, have not have been adequately understood. And this incident is just example that highlights the importance of capturing and reflecting the perspectives and interests of the individual creator in debates about copyright today.

In the ‘Individual Creators’ project, which is investigating the interaction between copyright and the everyday life of creative practitioners, I have been examining the following research questions and focussing on the creators’ perspectives:

  • What is the role of copyright in the day to day practice of creative practitioners, and how is it changing? Are their views changing in relation to it and why?
  • What is the actual as well as perceived value of copyright from the creators’ point of view?
  • How are meanings and beliefs regarding copyright being shaped and how do such meanings, beliefs, and experiences regarding copyright ultimately shape the various contours of creators’ practices?

In recent months, I have shared the story above, as well as, early findings from the interview and observation data collected in the project, at a number of recent events:

  • ‘Copyright and Individual Creators: Preliminary Findings from an Empirical Study’ presented at Law and Society Association Annual Meeting, Seattle, USA, 2015
  •  ‘Life on other Worlds: Creators and Copyright’ presented at GikII, Berlin, 2015
  • ‘Creators and copyright: Voices from the field’ presented at Friction and Fiction: IP, Copyright and Digital Futures, Victoria & Albert Museum, London, 2015
  • ‘It feels like I am always hustling, constantly hustling!: Creators, copyright and business models’ presented at the Global Congress on Intellectual Property & The Public Interest, New Delhi, 2015

Slides from one such presentation can be found here.

2015: The best is yet to come!

Rather than dedicating my last blog post for 2014 to a review of the year gone by, I will briefly sketch what lies ahead and highlight one book in particular, which has helped me prepare for my future work.

Finding myself comfortably settled into the second year of my PhD, and having finally succeeded in answering the question ‘What is your PhD on?’ with sufficient succinctness so as not to lose my listener while answering their question, I look forward to 2015 anticipating that it will be the most exciting year of my project. 2015 will be the year of fieldwork: of interviews and short-term ethnographic observations (and desk-based research, but that is less novel).

Having spent a good part of my first year of research gathering information on how to collect data, I am now eager to finally go into the field and put my notes to practice.

Reaching this stage was not easy. There are dozens of books out there – on social science research methods, methodology more generally and on ‘real world research’, which theorise the pros and cons of any given method, how it should be documented, verified and triangulated and when it should be used. These are certainly important considerations for any research project.

Yet, lacking a social science background and being trained as a black-letter lawyer, I was less interested in the books which explained at length why or when to choose interviewing as a method, or the difference between structured, unstructured and semi-structured interviews, and much more so in the books which focused on how to actually go about conducting interviews.

There is one book, in particular, which I found extremely useful as a hands-on guide on interviewing. The book is written by Lewis Anthony Dexter and bears the title: ‘Elite and specialized interviewing’. It was first published in 1970 and re-published in 2006 by ECPR Press because it is just as relevant to an interviewer today as it was nearly 45 years ago.

“So Taylor, what made you pull your back catalogue off free on-demand services?” Image available under CC BY-SA 2.0 by Popeye191

I know what you must be wondering – what kind of an elite will I be interviewing? Dexter demystifies the notion of an elite interview in the first few pages of his book. It is an interview with any interviewee whom the interviewer treats in a special non-standardised way, for instance by stressing the interviewee’s definition of the situation and letting the interviewee define to a large extent what they regard as relevant rather than relying upon the interviewer’s notions of relevance (Page 18). Essentially, this type of interviewing is based on the recognition that the interviewee is well-informed or influential in the given research area, so the interviewer is willing and eager to let the interviewee teach them what the problem or the question is.

Dexter’s book is a real gem for the pragmatic way in which it covers all the relevant stages and themes of interview preparation, conduct and analysis. He consistently elucidates more abstract ideas with specific examples from his own experience, which really helps the reader understand how to implement the strategies put forward by the author. Dexter also sheds light on the notion that an interview is not a self-serving endeavour but that there is value in it for the interviewee as well. It is mainly the responsibility of the interviewer to ensure that his respondent can get something out of the interview situation.

interview1

To my future and potential interviewees, do not worry, there will be no video recording! Image freely available by Jammi Evil

Some of the topics covered in the book include: how to introduce yourself and succeed in arranging interviews; what to consider when deciding on the order of your interviewees; how to begin the interview; how to take notes and write them up; and, what I found particularly insightful, what makes a good interviewer.

On the latter theme, Dexter, quoting Sidney and Beatrice Webb [1], makes what I consider a very valid observation:

“[…] people hear some isolated point and instead of listening to the sentences that follow it, they proceed to build upon it some notion of their own of what the speaker is trying to say; and this notion is what they attend to, finding a confirmation of it in any fragments which reach their minds afterwards. In fact, they theorise, instead of trying to experience; and usually their theory is based on their own experience […]” (at page 58)

The point Dexter makes is on the importance of efficient attention and of really hearing what others have to say.

In the last two chapters of the book, the author considers the limitations of interview data and how to mitigate these as far as possible. He concludes with the importance of self-assessment in the interview process: the interviewer tends to affect what is said, the author argues, because they are themselves a set of stimuli in what is quite simply one form of social interaction.

Having read this book, my conclusion is that preparing for an interview extends far beyond reading up on the substantive themes that one intends to discuss. Preparation involves nurturing self-awareness, improving your attentiveness, keeping an open mind, being reflective and, ultimately, being a bit of a psychologist. Last, but not least, preparation will certainly involve a lot of practice.

On this note…Happy Holidays!

Christmas Tree of Books

All I want for Christmas… is more hours in the day. Image available under CC BY 2.0 by Plum leaves

[1] Webb, Sidney and Beatrice Webb, Methods of Social Study (1932) Reissued: A.M.Kelley 1968.

The Private Copying Exception is here … to stay?

It’s not about what consumers should do, it’s about what the UK legislator did and what device manufacturers don’t do. And it all comes down to private copying.

In an independent report from 2011, Professor Ian Hargreaves wrote: ‘The copyright regime cannot be considered fit for the digital age when millions of citizens are in daily breach of copyright, simply for shifting a piece of music or video from one device to another.’ True, as consumers, we weren’t exactly living on the edge when we were ripping our own CDs onto our PCs and then copying the music onto our Mp3 players, although this was illegal.

One of the recommendations which Professor Hargreaves made in his report was to extend copyright exceptions as far as possible within the confines of the EU copyright framework in order to make the law fit for the digital age.

That is what the UK Government aimed to do, but the introduction of the private copying exception (section 28B CDPA 1988, effective as of 1st October 2014) in particular sparked a lot of controversy which just yesterday culminated in an application for a judicial review of the exception.

The key questions are: what does the new exception allow and is it compliant with the EU copyright framework? How did the UK Government argue that it is and what are the arguments put forward by the industry stakeholders who have launched the legal challenge against the newly introduced private copying exception?

 What does the new exception allow?

Section 28B CDPA 1988 allows individuals to copy media which they own (CDs, eBooks, etc.) from one medium or device that they own to another, for their own private use. Individuals can only copy content which they have lawfully purchased or been gifted on a permanent basis (it therefore excludes streamed content or works which have been rented out) and the copy may not be shared with a third party (friends or family) or used for commercial purposes. The exception is technology neutral. This means that it permits copying to all types of personal storage, including remote cloud storage.

Is the new exception in compliance with EU copyright law?

Well, that is the question. The UK Regulations which introduced the private copying exception were implementing Article 5(2)(b) of the Information Society Directive. Pursuant to Article 5(2)(b) of the Directive, Member States may introduce an exception for private copying on condition that the right holders receive fair compensation. In most EU countries where private copying is allowed, their respective governments have also put levy schemes in place as a form of compensation for rights holders. Such levies have traditionally applied to sales of blank cassettes and CDs, and more recently MP3 players and other devices. A study looking into copyright levies in Europe was commissioned by the UK Intellectual Property Office and reported in 2011. It was found that the levy schemes operating across Member States varied in a number of respects, from the type of media and equipment which they applied to the ultimate beneficiaries of the levy.

When the UK introduced its private copying exception it did not provide for any compensation scheme. What is more, the explanatory memorandum (at para 3.2.4) accompanying the new Regulations made clear that the UK Government does not intend to introduce levies or taxes on media and devices as they exist across the rest of the EU.

How did the UK Government argue that a compensation scheme was not necessary?

The Government essentially argued on the basis of Recital 35 of the Information Society Directive. This recital provides among other things that in cases where right holders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. It concludes that in certain situations where the prejudice to the right holder would be minimal, no obligation for payment may arise.

The Government argued that private copying was and could be factored into the purchase price of creative works. It also asserted that because the UK private copying exception is very narrow it may only cause minimal harm to right holders, which would not require compensation as per Recital 35.

How do industry stakeholders argue that the new exception will cause more than minimal harm to right holders?

The first thing that the Musicians’ Union (MU), the British Academy of Songwriters, Composers and Authors (BASCA) and UK Music, the 3 industry bodies which applied for judicial review of the exception, always stress is that the issue of private copying is not about whether consumers should be entitled to make private copies or not. In its response to the 2012 Public Consultation on Copyright, UK Music, the umbrella body representing the collective interests of the UK’s commercial music industry, explicitly reiterated (paras 50 and 116) that it wholeheartedly agrees that the law should be changed to allow consumers to make private copies of their legitimately-purchased CDs to their MP3 players.

What music organisations do assert is that the value of copying music on a CD was not priced into the CD and that current economic realities effectively prohibit copyright owners from retrospectively factoring copying into the purchase price of a CD.

Moreover, industry stakeholders underline that there is a distinction to be made between copying that is authorised under a license, and thereby priced into the purchase, and copying that is not. Copyright owners are increasingly negotiating with various technology companies which offer or are developing ‘cloud’ services. For music-based could services, UK Music explains in para 61 of their Consultation Response, the cloud provider negotiates directly with music copyright owners to store copies of their entire repertoire in an external database (the cloud). The service provider then offers an onward service to their customers by allowing them, for instance, to stream the tracks that they have purchased, directly from the provider’s cloud service.

BPI, the British recorded music industry’s trade association argued in its own Consultation Response that if private copying to cloud services were included in the statutory exception (as it is), it would be impossible for record labels to agree licensing deals with these services, and as a result licensing revenues would decline (para 59 of BPI’s response). The legal argument behind this is that the UK private copying exception does not meet the Three Step Test, introduced in the Berne Convention in Article 9(2) and manifested in Article 5(5) of the Information Society Directive.

Pursuant to the Three Step Test, an exception to the exclusive rights provided by copyright may not conflict with a normal exploitation of the work and may not unreasonably prejudice the legitimate interests of the right holder. It is claimed that the UK exception does both.

 —

In the opening sentence of this blog post I wrote: It’s not about what consumers should do, it’s about what the UK legislator did and what device manufacturers don’t do

Consumers should be able to make private copies.

The UK legislator enacted an exception which may not comply with EU law.

What about device manufacturers? What is it that they do not do?

Manufacturers of MP3 players, tablets and other devices build successful businesses partly on the back of unauthorised reproduction of music without sharing this value with copyright owners. This is what UK Music and the other industry bodies argue and are attempting to fight. In preparation of the Consultation Response in 2012, UK Music commissioned Oliver & Ohlbaum, a media advisory firm, to conduct research in order to isolate the proportion of the value of MP3 devices that consumers attribute directly to the ability to store and play music copied from CDs. The research showed, as reported in paras 98ff of UK Music’s Response, that consumers attribute 44% of the price of a basic MP3 player directly to the ability to copy music from CDs.

“It is critically important that the Government consider the monetary benefits that have accrued to technology firms from the unlicensed private copying of CDs […]. Music copyright owners in the UK are not compensated by a private copying levy. Yet this value is what copyright owners should have been able to realise.” (UK Music Consultation Response para 103)

Now what?

Will the UK private copying exception remain unchanged? Does it or does it not comply with EU Copyright law? Something tells me that it may not be the UK courts which make this decision…