By Sidney Fitchett
Copyright has always been the pivot of intellectual property protection in the publishing industry, and now it is a growing issue. Not just for publishers and authors, but for creators of content in general. This article discusses the effects the digital era of publishing has had on copyright, focusing on the problems that have emerged and what is being done to protect the author generated content. It looks into old and new copyright laws, describing the current landscape and exploring how copyright might change in the future.
Keywords: Copyright, Laws, Article 11, Article 13, Digital Technology, Intellectual Properties, Internet, Challenges, Content Creators
According to the Tech Nation report 2018, the UK technology sector is growing more than two-and-a-half times faster than the overall economy (Flinders, 2018). As digital technology continues to advance, the problems facing copyright are becoming more urgent. The evolution of digital tech and the popularisation of the Internet has altered the way works and other intellectual properties are created, produced, distributed and exploited. In the publishing industry, the protection of intellectual property continues to raise challenges and concerns for authors, publishers and several other organizations. How can copyright be managed in this new age of disruption? The rules of intellectual property are being redefined in the digital age, and much is at stake for authors and publishers alike (Albanese, 2018). The question is, in the digital age, is copyright dead?
Copyright law and new technologies have a long history, dating back to the Gutenberg Press in the 15th century—more than 200 years before passage of the matriarch of copyright statutes, Britain’s Statute of Anne (Thuronyi, 2017). And now, as the digital age continues dominate the publishing world, these emerging technologies are raising more questions for copyright.
Authors and publishers are threatened by the free, flexible access to content on the internet that users have. The rapid evolution of digital technology, in particular the internet, enables the copy of a text, song, article, movie, or photo to be made without permission and to be disseminated around the world through the click of a button (Phillips, Dimock and Punniyamoorthy, 2006). If our works can be infinitely reproduced and distributed globally without any costs, limits, without our knowledge and without it ever leaving our possession, how can it be protected? If authors and publishers can’t generate income, what will assure the continued creation and distribution of intellectual properties?
As a result, creators want to ensure that their rights to the work they produce are protected and that others do not appropriate any benefits generated from it (Phillips, Dimock and Punniyamoorthy, 2006). The digital environment makes it difficult to establish the boundaries between the author’s ideal interests (personal and moral rights) and his or her material interests over the work (economic or exploitation rights) (Eguaras, 2015).
In contrast, users such as teachers, students and researchers (universities and research institutions) want to ensure that copyright laws do not prevent them from accessing information. They are confronted with legal uncertainty; to what extent can they mine the content that is accessible to them through Open Access?
Authors have the right to want to protect their works and publishers as creators and distributers of content must make sure the works of their authors are not exploited; not solely for the sake of the authors but to prevent losses in their own sales and profit. In this new environment, rightholders are finding it difficult when seeking to license their rights. It’s not just as simple as ‘why it is easier for people’s works to be exploited’. Sometimes, copyright laws can be applied, and sometimes they can’t. This is because digital technology has disrupted existing copyright regimes. For example, is a poem written by a computer entitled to copyright protection? Does a mass digitization project displaying snippets of in-copyright books require licenses from each copyright owner (Thuronyi, 2017)?
Digital technology not only affects authors and publishers. On several occasions, it has created conflict between other publishing and media organisations. For example, the clash between the Authors Guild and Google, which was one of the major copyright battles of this century, lasting between September 2005 to April 2016. A Copyright Infringement Suit was filed by the Authors Guild and the case also involved five major publishers (coordinated by the Association of American Publishers) filing suits against Google. At a conference on April 15 2016, the Supreme Court refused to take up the case anymore, effectively ending one of the defining copyright battles of the digital age (Albanese, 2016). In addition to the cost of the suit, the Authors guild lost what they saw as a potential market. They believed that Google was depriving its members a chance to license their works into an online search market.
Another example is the conflict between Tasini and the New York Times, back in the early 2000s. A federal judge discovered a New York Times led group of media conglomerate defendants licensed the work of freelance writers without their permission writers and with no payment. For writers, a significant amount of royalties was at stake. For publishers, the re-evaluation of online rights. Lead by Jonathan Tasini (currently president of the Economic Future Group), the freelance writers filed a suit for copyright infringement against the New York Times for the use and reuse of their articles in electronic format (initially licensed to be published in print form). The court confirmed copyright privileges of the group of writers whose works were originally published. They received compensation of $18 million. It’s clear that the issue is copyright is taken very seriously within the publishing industry, but as seen with the Google vs Authors Guild case, sometimes, not all cases will be solved to everyone’s satisfaction.
As for e-books, publishers started to use DRM (Digital Rights Management) systems in an effort to stop the illegal reproduction of works. The technology was based on a closed, complex system that didn’t provide protection and penalised the buyer. A new type of DRM, known as social or “soft” DRM has been introduced, offering greater respect for readers and copyright protection that is non-invasive of the reading and buying experiences (Eguaras, 2015).
Article 11 and 13
The most recent ‘solution’ to the rising copyright crisis is the European Copyright Directive. In September 2018, the European Parliament voted in favour of the directive. It will see the introductions of Article 11 and 13; two of the most discussed topics in not just the publishing industry but the entire entertainment and media sector. However, the various responses to these directives have been very contrasting, with large Internet platforms like Google and YouTube heavily opposing the directive, whilst several publishers and authors are fully supporting the proposal.
The proposal for the directive states that the difficulty rightholders are facing the license their rights ‘threatens the development of European creativity’. In response to this, it aims to provide a new right for press publishers, focusing on the facilitation of online licensing for their publications. The directive also aims to ensure that the competition in the market is not distorted (Directive of the European Parliament and Council, 2018). In the UK, the Publishers Association—along with the Booksellers Association and Society of Authors—have been welcoming. However, Brexit’s realities will have likely removed the UK from the European Union before the Digital Single Market goes into implementation (Bergman-Tahon, Anderson and Wischenbart, 2018).
Article 11 will introduce something that is now being referred to as ‘link tax’ into new law. It requires internet companies to gain permission from publishers before they use parts of their work. For example, sites like Google and Twitter sometimes show small parts of articles or books on their sites and the option to read more is available. If Article 11 was in effect, these companies would have to get permission or even pay to use these. Article 11 also requires online platforms to pay publishers if they directly link to their content. And even though the purpose of this is to limit the power these huge Internet companies have on publishers, there are flaws. Can the European Parliament expect these companies to comply every time they require the content of news and book publishers? A Senior Google Executive (unnamed) said “What worries us isn’t the money, but the precedent this would set. Imagine if we had to strike a licensing deal with everyone who uploads a recipe’. Angela Mills Wade (executive director at the European Publishers Council) says that ‘It boils down to whether you want an internet where those who invest in production are incentivised to continue to invest in production or a law that facilitates free riding and allows companies this gray area of scraping and reusing content to continue’. The question is, has this issue become a matter of economics or copyright? Wout van Wijk, (Executive Director, News Media Europe) says ‘The right is about more than getting money out of it. It is about giving publishers the legal recognition as a rights holder’ (What’s New in Publishing, 2018).
Article 13 is perhaps even more controversial than Article 11. It is based around the relationship between copyright holders and online platforms. It will force platforms to enforce tighter regulation over protected content (What’s New in Publishing, 2018). It is this part of the directive that is worrying people the most. The proposal states that ‘online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services’ (Reynolds, 2019). This means that websites that attract a large amount of user-generated content (YouTube, Twitter, and Facebook) are responsible for removing content if it infringes copyright laws. But no one can agree on how they are expected to identify and remove such content. An earlier version of the Directive referred to “proportionate content recognition technologies” which suggests it is asking platform owners to use automate filters to scan every piece of content and stop anything that might violate copyright from being uploaded (Reynolds, 2019). Whilst this would benefit authors, it could prevent several other content creators from uploading, just because their works bears resemblance to another’s. Author Cory Doctorow said ‘What a disaster for creators’ in response to the proposal.
The reason for the outcry against Article 13 is because of the effect it will have on small publishers. Although they’ll have the same legal rights as entertainment producers, they will struggle to match the commercial strength of larger organisations. They will continue to struggle attracting traffic back to their site without the use of news aggregators, who will be cut off by tech platforms in fear of breaching the new copyright laws. According to Google, there is ‘no justification for charging news aggregators’. Whilst large publishing houses may continue to receive sufficient traffic on their sites, would approval of a directive that threatens the growth of smaller publishers be worth it?
YouTube is the most vocal of the critics of Article 13, using hashtags like #saveyourinternet in an effort to promote opposition against the directive. On November 21 2018, they emailed a letter to their users, encouraging them to protest against Article 13, saying ‘Imagine an internet where your videos can no longer be seen. Imagine an internet without your favourite creators. Imagine an internet where new artists are never discovered. It could happen in Europe’ (Eyre, 2018). Because of this, the Society of Authors (SoA) criticised YouTube, saying that they only oppose Article 13 because it will finally force them to take action to protect creators and tackle copyright infringement on their sites. Tim Gallagher (public affairs manager at SoA) said ‘This is welcome progress for creators and users alike’. The Bookseller’s Charlotte Eyre said that ‘The progress made today is a good thing for publishing and the wider creative industries, but there are still a number of further steps to go down before this becomes law’.
Article 11 and 13 will affect publishers, authors and large companies in a variety of ways. But how will affect users? Other than platforms like YouTube, there won’t be any automatic filtering, meaning that users must become hyper-aware of the new laws that could surface in the near future. Punishment for copyright breaches in the UK is typically a 3-6 month prison sentence and/or a £5,000 fine, so staying original has never been more important (Jones, 2018).
As with all legislation, these new laws won’t come into effect for a while. But the approval of both articles will have a major impact on how publishers use and share information. It will also change Internet companies’ attitudes towards the way they approach publishers and their content. Whilst the copyright directive will affect authors and large publishers in a positive way, small publishers and large Internet companies may be on the receiving end of these new laws. Does this mean the digital age has affected the publishing landscape in a good or bad way? Whilst it has caused problems, technology’s advance has helped copyright’s growth over the years. From the first Copyright Act of 1790 which only protected against unauthorized copies of maps, charts and books to copyright laws that have expanded to protect other expressive works such photos, visual art, sound recordings, architecture and motion picture. Whilst both technology and copyright have evolved, they struggle when balancing existing rights with new claims by creators and owners of copyright (Eguaras, 2015). Perhaps the greatest challenge copyright faces is the recognition of new tech and evolving interpretations of copyright.
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