Creators' and consumers' common ground
As the Creators' Rights Alliance observes in its March 2012 submission to government, in the new digital environment, changes to copyright law affect every citizen.
We have therefore co-organised with Consumer Focus, the statutory consumer champion, meetings to explore areas of common ground. The latest of these was at the House of Commons on 13 March, under the auspices of PICTFOR, the Parliamentary, Internet, Communications and Technology Forum which is the lead parliamentary group in Information and Communications Technology.
We are broadly in agreement:
- on the need for automatic moral rights, particularly attribution, and better metadata identifying creators throughout the distribution chain;
- on the importance of addressing problems with contracts - both those between end-users and intermediaries and between creators and intermediaries;
- that we share considerable interest in the idea that economic rights could revert to creators after a certain time or when not exploited.
Detailed notes of the meeting:
Alun Michael MP in his introduction from the chair welcomed the constructive move by the Creators' Rights Alliance and Consumer Focus to seek common ground.
Saskia Waltzel, senior policy advocate for Consumer Focus, opened by introducing Consumer Focus and their work. Their interest in copyright exceptions and licensing grew out of their work on infringement. CF want to see licensing made easier, to get works to market.
Research shows consumers to be broadly supportive of copyright - so long as their money is going back to the creator. They are, however, bewildered by aspects of current law, for example the part that disallows format shifting. Consumers have not traditionally been regarded as stakeholders in the debate on copyright but this is changing.
CF supports many of the recommendations made in the Hargreaves Review, such as bringing the right to limited private copying up to date. Consumers expect private copying to be legal, and P2P file-copying to be illegal.
CF is aligned with creators on exceptions on review and criticism. In the digital age lots of the exceptions that were made with professional creators in mind are being used by consumers - such as that for reporting current events to copy quotes onto blogs. Exceptions must work for consumers and creators.
There is also common ground on enforcement. CF has long argued for a small claims track for copyright, which will hopefully be introduced in October of this year. Previously the expense of bringing a case deterred both consumers and creators.
The report by Professor Ian Hargreaves focuses heavily on markets and made lots of suggestions to ease licensing of copyrighted works. Copyright law should ensure that the money filters back to the original creators - but this is scarcely looked at in the report and moral rights and contracts are similarly disregarded.
The focus on economic rights overlooks the rights of creators - and historically creators have not had a strong voice in the debate.
The link between economic growth and creators’ rights is under-examined - although the Mergers and Monopolies Commission looked at the question of monopoly in the music business and discovered that this meant that unfavourable contracts were imposed on artists, it took no action.
The question is: how can we create a copyright system that recognises the many intermediaries in the chain, but gets the money back to creators?
Mike Holderness, chair of the CRA, agreed with Hargreaves that the creative industries are central to the UK’s economic growth: but there's a problem with encouraging sustainable growth because there is, as Saskia acknowleged, a problem getting money back to the individuals who do the creative work, so they can sustain themselves to do more.
Probably most people working in this field are freelance – that is, sole traders. This means that the playing field is far from level when it comes to bargaining power.
Hargreaves and the current review have focused on the role of the intermediaries rather than creators - whether they be the traditional intermediaries such as publishers or those who aim to "organise all the world's knowledge" and sell advertising on the back of it.
And also, at at time when practically every child now in school will be a "published" or "broadcast" creator before they can vote – thanks to YouTube and FaceBook and so on – changes to copyright will affect every citizen's rights, not least the right to complain when their work is abused.
Wikpedia is a marvel of what people will do in their spare time - as though a creative economy could be built on such work for free. But if an entry in the encyclopaedia fails to cite professionals in the field - whether chemists or journalists - it's flagged as unreliable. The free work builds on professionals' work.
Hargreaves says little about how the UK can retain a professional cadre of creators.
It is particularly important that journalists take responsibility for their work outputs. Currently journalists lack the right to defend the integrity of their work - an editor can change their piece without asking permission. They don't have a right to be identified as authors of their work. Journalists - and other creators - need an enforceable, unwaivable right to be named. This is as much in the interest of the "consumer" - who needs to know the provenance of what they're seeing or hearing – as the creator.
Moral rights are a precondition for many of Hargreaves recommendations. They are important, not just for professional creators, but for consumers and for every child who will now leave school a published writer or broadcaster.
Gwen Thomas, consultant to the Asssociation of Phogographers, spoke about contracts and moral rights. Recent research in the field had shown that
- 50% of photographers said their bargaining power has worsened;
- 40% reported an increase in assignments of copyright and other rights;
- 24% reported an increase in moral rights waivers and a decline in attribution; and
- 31% saw attribution decreasing going forward.
The reality of the situation is that for every photographer who wants to retain their rights there is a queue of others who will sign any contract on any terms. While there is no mechanism in the UK to help photographers retain their rights, this is unlikely to improve.
Moral rights are particularly important to photographers, not least in preventing works from becoming orphaned; in giving photographers a way to defend their work against distortion and manipulation; and in helping people be remunerated - if you can’t be traced, you can’t be paid.
Photography is not the preserve of the professional alone, and nor is digital manipulation of images. People must understand how their reputation might be damaged if their photo is misused, and the implications for any people who could be identified in their images. Moral rights are critical and the UK lags behind many other EU countries already.
On orphan works, Gwen pointed out that the "metadata" that should embed identifying information within a digital photograph is often removed during the process of uploading a photo to a sharing site. She called for strong sanctions against its removal, alongside more money to research how to do metadata more effectively. She concluded by saying that moral rights are essential for the public and for economic growth.
Simon Indelicate of the band The Indelicates described the various references in his song "Savages", from musical ideas to literary works. Despite the song being deeply personal, he finds it difficult to describe what is his in the song. Copyright as a concept sits uneasily with him as references to other works help him to communicate. Creators must consume other creative works; creativity demands constant access to culture and copyright law should not restrict this access.
In conclusion, Alun Michael said that legislation based on values and principles should be the way forward. The Digital Copyright Exchange idea gives an opportunity to do this.
- See also notes on the meeting from PICTFOR