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.

From the Field and into the Maze

I have spent the first six months of 2015 travelling to London and conducting my fieldwork

London Calling...  I came, I interviewed, I left.  Image available by Karen Roe under CC BY 2.0

London Calling…
I came,
I interviewed,
I left.
Image available by Karen Roe under CC BY 2.0

which involved an exciting mixture of interviews and observations of the work of some creators’ organisations (COs). I conducted my first set of interviews with representatives from COs in the publishing industry: the Society of Authors, the Authors’ Licensing and Collecting Society and the Writers’ Guild of Great Britain. In April I then shifted my attention to the music industry and went on to interview representatives from PRS for Music, the British Academy of Songwriters, Composers and Authors, the PRS for Music Foundation (an independent charity committed to supporting new music talents) and the Musicians’ Union. I have conducted a total of 24 interviews amounting to nearly 30 hours of recorded conversation, which I am currently in the process of transcribing. I have also spent a couple of days with ALCS, PRS for Music and the Musicians’ Union which has enabled me to observe some of their day-to-day activities.

At the heart of my interviews were themes and questions aimed at understanding the work of creators’ organisations. I was interested in their role in applying the law -be it through the negotiation and application of collective bargaining agreements, through contract vetting, or through the establishment and maintenance of various licensing schemes as well as through copyright enforcement activities. I also wanted to understand their involvement in policy making and prompting change – through lobbying, campaigning and an active participation across various fora.

Beyond simply mapping the wide range of roles that these organisations assume and the services that they provide, I also explored how creators’ organisations have reacted to the way their industries have been and are continuously being transformed by the advancements in digital technologies. How has digital media challenged what creators’ organisations do? Has it made it easier or more difficult to represent creators’ interests? What have new business models meant for the balance of power in the music and publishing industries? How have these models changed contractual and industry practices, the value of copyright works and the way rights are being transacted?

Last but not least, it was my objective to not only explore the law in action but to also grasp and record the process behind the law in the making. To do this, I studied the various actors and their relationships to other industry bodies and to UK and EU policy makers. I took a closer look at the different fora in which they convene, the umbrella organisations through which they sometimes act and the considerations that underpin some of their actions.

@Edinburgh: not a field...but it will do for scenery Lovely image of Arthur's Seat available by David Monniaux under CC BY-SA 3.0

@Edinburgh: not a field…but it will do for scenery
Lovely image of Arthur’s Seat available by David Monniaux under CC BY-SA 3.0

Over the summer, I will complete the transcription of all my interview recordings with a contingency plan in place in case I need to follow-up with some interviewees to clarify any aspects of their accounts. At the same time, I am continuing to monitor relevant industry news updates, blogs, the organisations’ websites as well as social media for additional publicly available documents that may feed into, enrich or challenge my interview data.

Once I have completed these stages, I will finally leave the field behind and delve into the maze of coding and data analysis….

It is time... to take on the data! Image available by magnifulouschicken under CC BY-NC-ND 3.0

It is time…
to take on the data!
Image available by magnifulouschicken under CC BY-NC-ND 3.0

Do check back on the Copyright and Creators Blog as I will be offering updates and more substantive glimpses into some of my thematic findings as my work progresses. I will also dedicate a post on the lessons learned from the field which will almost certainly have a sequel looking at the lessons learned from data analysis.

A Problem With Parody?

The explosion of content over recent years has given rise to plentiful parodies in formats ranging from videos to games and beyond. The creators of the originals, however, can find these to be unflattering or, in some cases, even outright offensive. The law can be invoked in such circumstances by angry creators, but are the parodies really that problematic?

The past decade has seen a much-discussed explosion in user generated content, with thousands of hours of video and millions of photographs created every single day. Amongst this sea of content many popular parodies have arisen, from subtitled movie clips of Hitler ranting to parody games and cover versions of controversial music videos.

For professional creators this wave of works can be both a blessing and a curse. The widespread availability and popularity of these parodies can offer a great opportunity to catch attention of audiences – especially if they go viral! On the other hand however, not all rights holders are happy to have their works used in such manners and creators can be upset at the messages that they send. The loans company Wonga, for example, was recently involved in a dispute with a Twitter user over a parody image, while publishing firm Penguin were left unamused last month by a satirical take on their classic Ladybird books.

Wrecking Ball

Wrecking balls have featured prominently in some recent parodies … Image available under CC BY-NC-SA 2.0 by David Pickett

Such responses can be an understandable reaction to what is, in many cases, an unflattering and unwelcome use of original works. Indeed, even where the message of the parody is positive original creators can sometimes still object. Well known band the Beastie Boys, for example, opposed an advertisement that parodied their song due to their wish not to be involved with advertising in any form.

The majority of parodies therefore are produced without any license or permission from the initial rights holder. In some jurisdictions this is not necessarily a significant problem. The US, for example, has developed legal space for parodies through the application of their “fair use” doctrine. Other nations have included express parody exceptions in their copyright laws.

CourtGavel

The UK courts do not always look favourably on parodies. Image available under CC BY-SA 3.0 by Jonathunder

The approach in the UK however is much more heavily in favour of the original creator. Currently parody is not a listed exception to copyright law in the UK and the UK lacks any general exception equivalent to “fair use”. The test applied by domestic courts is to examine whether a “substantial part” of the original work has been used in the parody: If so the parody will be found to infringe, irrespective of the intent of the use or any additional original content. This is a particular problem as, by their very nature, parodies often need to take a large part from the original work to be effective. Something unrecognisable is unlikely to make a successful satire. UK law therefore favours the creators of the original and makes it difficult for parodies to survive challenge.

While creators of the original works are likely to have a strong legal case however, it is questionable whether parodies actually pose a problem in the first place. Putting aside any personal offence that may be caused, empirical research carried out for the UK IPO exploring parody videos on YouTube found that they didn’t appear to cause any direct harm to the market for the original work. Indeed in some cases they even helped raise awareness of the original. More ‘minor’ works in particular seemed to receive a positive bump in publicity from parody versions and even the very small percentage of parodies that were explicitly critical (1.5%) caused no evident harm. This led the authors to conclude that “it appears to be more advantageous for a commercial video on YouTube to attract parodies, even if highly negative, than to have no parodies at all“.

Additionally, creators who lash out against parodies can often find that taking action causes more problems than it solves. In addition to the PR backlash and perception of bullying that often accompanies enforcement efforts taking action can, as a more fundamental problem, draw more attention to the very thing that the original creator wants removed. This problem – often termed the Streisand effect – can exacerbate any reputational harm caused by the parody, something that Wonga have found out to their dismay in the aforementioned Twitter dispute.

WAR & CONFLICT BOOKERA:  WORLD WAR I/SUPPLY & SUPPORT

Attempting to remove parodies may draw unwanted attention. Image in the public domain as a work of the U.S. federal government, by Lt. William C. Fox, US Army

Furthermore the current UK legal framework may soon be changing. The draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which form part of a package of copyright changes in response to the Hargreaves Review, is set to introduce a copyright exception for:

Fair dealing with a work for the purposes of caricature, parody or pastiche

How effective these proposed changes will be – particularly as they are being included subject to a ‘fair dealing’ requirement – remains somewhat unclear: It is difficult to judge how the proposals will apply in practice. It has been suggested that there could remain uses which are prima facie parody which may, nonetheless, not qualify under the provision above. Overall however the addition of this exception will change the current position and will, at the least, weaken the legal bastion currently enjoyed by the creators of the original works.

It would appear therefore that for the creators of original works parodies may actually be beneficial; may be hazardous to attack; and may soon gain stronger legal protections than they currently enjoy. It may be best in the long term to simply let them be and laugh along with the rest. As the famous quote goes:

There is only one thing in the world worse than being talked about, and that is not being talked about.”