14 January 2021

How Britain can create a world-class copyright system outside the EU

By

On New Year’s Day, there was more to celebrate than just the end of 2020. It was also the day that thousands upon thousands of works, by creators long dead, finally entered the public domain. Among them were George Bernard Shaw’s Pygmalion, and George Orwell’s classics Animal Farm and 1984.

Why? Because the authors died in 1950, and copyright lasts for 70 years after an author’s death, as calculated by the calendar year. What this means is that filmmakers, authors, playwrights, artists, and others will now have the freedom to reimagine these great stories without having to ask the permission of the author’s estate.

They can create extraordinary value. One of the most anticipated books of the year is a prequel to The Great Gatsby, Michael Farris Smith’s Nick. Yet Smith wrote the work over five years ago. Like the vast majority of the public, he was unaware of how copyright really works, and did not realise that it was restricted in the case of F Scott Fitzgerald’s classic. In his case this had material consequences. He was finally allowed to publish Nick only this month, when the American copyright on Gatsby finally expired. 95 years after publication.

Unlike Smith, most of the public routinely infringes on copyright, without even realising they are doing it. They share photos and text, screenshots and files, assuming that such limited, personal copies are legal. But they are not. As I argue in ‘Fixing Copyright’, my new report for The Entrepreneurs Network, although the internet has unleashed an era of mass copyright infringement, many of the same digital technologies are now being applied to enforcing it. Forgot about that banal stock photo you once put up on a blog a decade ago? You might soon be getting an automated demand for unpaid licence fees on behalf of the photographer. The age of mass enforcement is nigh.

So now, more than ever, it is worth examining our copyright laws. The system was created to encourage creativity, first as a monarchical privilege extended to publishers for just a few years, and over the centuries evolving into the rules we have today. It has been extended to all sorts of creative works: from written work to art, photography, sculpture, recordings, musical composition, typography, film, video games, databases, and more. Unlike other forms of intellectual property rights, like patents, copyright can in some cases last for well over a century, depending on when the creator dies. And it is automatic. There is no register of copyrights. From the moment the creation is ‘fixed’ in some physical or digital form, you and your heirs for decades have a total monopoly over how it is used.

And yet, for all that strength, it is often confusing to the creators it seeks to protect. Many musicians, for example, mistakenly believe that there is some sort of ‘five second rule’ for sampling the tracks of other musicians, without needing to ask or pay them. Likewise, many of us wrongly assume that when we purchase a song or a film or an e-book, that we can store the files however we like, making copies for personal use – a process known as format shifting.

For songwriters, things have recently become even more confusing, with a recent legal judgement in the US – which could set a precedent worldwide – suggesting that copyright can be infringed just for replicating a similar ‘feel’ to an old song, even though it has no melody or lyrics in common.

To continue supporting creativity then, copyright needs reform.

Creating an exemption for format shifting for personal use should have been done years ago, like it was in many other countries. More importantly, however, the system should provide certainty, especially for our innovators and entrepreneurs, with clearer rules or guidance on what counts as copying. The Intellectual Property Office should probably take a more proactive, anticipatory approach to offering guidance on how the system will affect new technologies (video games, still in their relative infancy as medium, are an absolute minefield of unforeseen issues that may explode decades from now due to how long copyright lasts).

And it should put the encouragement of innovation at the heart of its mission. Unlike in the US, there is currently no claimable exception in the UK for creating something transformative from another work. There ought to be one. But there can be a fine line between transformation and plagiarism, and so the IPO should work with industry bodies to help define that line, so that innovators aren’t always at risk of being sued.

Following Brexit, the UK has an opportunity to pick and choose the best of copyright policies from around the world. It can avoid doing what the EU has done, for example, to penalise online platforms and threaten freedom of expression on the internet by insisting upon the use of ‘upload filters’ – technology to prevent you even posting a photo or video or song that you don’t own the rights to. The risk with such technology is that it might prevent legitimate sharing of content, which takes advantage of the various exceptions to copyright for things like news reporting and parody. On the other hand, it should also adopt some of the best of EU policy, like its stipulation that for a work to be copyrighted it must be at least somewhat original. Without this, various UK museums and art galleries have been claiming copyright over exact photographic reproductions of art that has been in the public domain for centuries. Public domain should mean public domain.

And there are opportunities for the UK to go further still, by leading the way in improving copyright. Many old creative works, for example, have become simply unusable, because their owners cannot easily be traced. Of the estimated 91 million of such ‘orphan works’ still under copyright, a mere 1,100 have been licensed by the Government for use since an Orphan Works Register was established six years ago. The system should be made dramatically easier for users, by allowing them to use first and only pay limited damages if the owners hadn’t already put the work on the register a decade after the creator’s death. That way, heirs can still protect their ancestor’s copyright, but those that don’t care about it won’t stand in the way of a work potentially getting a new lease of life.

Similarly, there are opportunities for the UK to take the lead with cutting-edge technologies like Artificial Intelligence, becoming one of the best places in the world for its development. As things currently stand, there is an exemption for text and data mining by such algorithms, but only for non-commercial research. Meanwhile, in the US, text and data mining of all kinds is claimed by some organisations as being exempt under their ‘fair use’ rules, but the issue is yet to be fully resolved by the courts.

The uncertainty in this area offers the UK a chance to gain a competitive edge by creating a clear and certain exemption for text and data mining of all kinds. We don’t penalise humans for looking at things to form an analysis, so why should we penalise machines for effectively doing the same?

My proposals for reform are not especially radical. The system as a whole should remain, and as my report sets out, the details of the reforms focus on ensuring that copyright owners do not lose out. As a rule, the reforms should end up as win-wins for users, creators, and owners. But the system needs to be reformed to keep up with changing norms and technology. For if it fails to adapt, creativity and innovation will suffer.

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Anton Howes is a historian of invention and Head of Innovation Research at The Entrepreneurs Network.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.