SHOULD THE TERM OF COPYRIGHT PROTECTION BE EXTENDED OR SHORTENED IN THE UK? 6pm – 8:30 pm Thursday 29 th September 2005

The Durham Street Auditorium, RSA , 8 John Adam Street, London WC2N

The Labour Manifesto committed the Government to “modernise copyr ight and other forms of protection of intellectual property rights so that they are appropriate for the digital age”. The Department for Culture, Media and Sport is currently undertaking a review of copyright with the aim of developing an IP framework tha t balances the needs of consumers, creators and businesses.

However, most attention and press speculation has centred on the possible extension of copyright term, particularly in sound recordings, in the UK. This evening seminar, organised jointly by the ippr, PCM LP and the RSA, sought to directly consider the question “should the term of copyright protection be extended or shortened in the UK?” and to provide discussion around the pros and cons of alternative approaches in the context of supporting creat ive industries, and creativity, in the UK .

Speakers:

• Professor Lawrence Lessig , Professor of Law, Stanford University and founder of the Centre for Internet and Society, Stanford

• John McVay, Chief Executive, Pact

• Adam Singer , CEO, MCPS -PRS Alliance

Ch air: John Howkins, RSA

Presentations were followed with a question and answer session. LAWRENCE LESSIG

Lawrence Lessig began by detailing the history of copyright and accused current policy makers as having forgotten this history . Inst ead of discussion over fair length of term and limits, there was now a race for perpetual copyright motivated largely by a process of ‘harmonisation’.

Turning to the topic of the seminar, Lessig asked, if copyright is about encouragement and incentive for artists, will an extension in term improve incentive? In considering this question we should distinguish between prospective and retrospective change. In terms of prospective change, is the current fifty year term enough of an incentive to create? How much more valuable is a 95 year term?

Lessig claimed the difference in income is tiny. If we consider the discount rate of value of creative content as 10 per cent, then the difference in income receive from a 50 year term and a 95 year term is 1 per cen t. Lessig denied that restricting the length of term and not increasing prospective value of copyright by 1 per cent would deter any would be creators from creating.

In terms of retrospective change, the benefits of extending length of copyright term to society are nil. The 1 per cent increase will make people richer but would essentially be a gift that bore no requirement for re -investment in new creative works. Thus, if we focus on the principle of copyright, i.e. providing an incentive to create, the re is no reason for extending term.

Looking at the issue pragmatically, Lessig thought that copyright term would be extended but, he said, there was no reason to extend it indiscriminately. A vast amount of works still protected under copyright are comme rcially unviable and, as such, unavailable for access. In a large number of cases, where attempts could be made to place such creativity in the public domain these are restricted since it is impossible to trace the copyright owner. Thus while public inst itutions such as the British Library work to digitise cultural heritage and provide public access, there work is made more difficult by being unable to trace the owners of many works, a situation which is likely to get worse if copyright is further extende d.

Lessig proposed a solution introducing discrimination into awarded copyright. Copyright could be kept at the current length of term. If, once this is facing expiration, you want to extend protection copyright holders should be made to re - register and to pay a nominal sum of £1 to do so. The vast majority of rightsholders would not re -register.

JOHN McVAY

Speaking as someone representing rightsholders, John McVay stated that he would not like to see a decrease in length of term as this would work as a deterrent for investment, much of which comes from the city for high fixed costs productions such as films etc. It was important to recognise the important of television and film content to the UK economy - the UK is second only to the US in global TV exports – and the importance of copyright term in attracting investments and getting a return on these.

There are concerns in the creative industries about where intellectual property rights could stifle legitimate access and creativity as many creators are users of rights as well as rightsholders. McVay emphasised the need for creating a sustainable, flexible regime. He referred to the work undertaken by the Government IP Forums who have recently produced a manifesto for creativity, under the banner C REATE (Creativity, Respect, Education, Access, Trust, and Economics ).

ADAM SINGER

Adam Singer defended the creative industries’ reactions to such things as creative commons and so on, saying there is a lot of fear amongst industries that are seeing their traditional revenue models threatened. The main question we must seek to answer, he said, is what is the right structure to ensure a creative community? With manufacturing in decline, intellectual property is growing in economic importance. We need to think about how we can encourage investment in the creative industries.

DISCUSSION

Re -registering Copyright Previously, registering copyright was seen as too burdensome and costly for creators and thus copyright is awarded automatically. However, we now have the technologies which are capable of making this process much less troublesome: we are quite happy to re -register domain names every few years for example. There was some debate not about whether re -registering was right or wrong, but at which poin t re -registration should be demanded.

Moral Rights There was much discussion concerning moral rights, and whether they should be perpetual and / or inalienable. There was some opinion that the moral right system should be the one to focus on during the in ternet age. Lessig stated we should seek to distinguish between strong control for your work and strong control over others building on works. We need to recognise the importance of encouraging derivative works. Copyright is also different for derivativ e works in music and film for example, in music several artists can cover the same song however film makers cannot make different films from the same book. It was felt that, on occasion, we could be realising more value for creative works if it weren’t fo r the legal systems.

There was a different perception in the importance of moral rights depending on what medium of creativity was being used. For example, in the context of text we don’t question the legitimacy of using sections for criticism and parody but there aren’t these norms in film and music etc. As people become multi media producers, there was a sense that the gap between the markets would shrink.

Assigning Copyright There was concern over creators assigning their copyright over to large corp orations and not seeing the benefits should there be significant return later in the copyright term. In copyright transfers there is a legal right for the original creator to terminate transfer after 35 years.

Assigning or giving up copyright has been one of the music industry’s major criticisms of Creative Commons. Lessig announced Creative Commons is working on a project to allow for people to ‘get back’ copyrighted material they have previously released under a creative commons license. The role of contract was also discussed. In the US, copyright is only granted to authors rather than authors and a proprietor therefore being able to make money from your creation is in some ways inalienable.

Tracing Copyright Many institutions attempting to put cr eative heritage online have faced problems in tracing owners of protected works. The collecting societies have largely provided an economy of scale in enabling people to exploit works without having to enter new negotiations for every single use. Collect ion societies have lowered the costs of law and lessened transaction costs but they are territory based, which is not in line with the global nature of the Internet. They also cannot create scarcity therefore the question was posed as to whether a monopol y system was the best way of achieving value.

The Public Domain The panel was asked why we are so worried about the public domain now, given that in some senses it is stronger than in the 18 th century for example.

Lessig did not agree the public domain w as more robust. The scope of copyright is much broader and a smaller group of people, through media concentration, have much greater control. There is a range of new ways to use culture which are currently being restricted by intellectual property rights . For example, Google has recently been working to scan books to make them available online, for people to search for specific words and phrases. For Lessig, this represented an important advance in access to knowledge. However, in some cases Google wer e unable to establish who owned copyright for some works. They offered to remove any books if the owner asked them to. However, the plan has now been suspended due to objections from rightsholders.

There is also an emerging conflict in the way people ar e using new technologies to interpret culture. A large stock of creativity is now found in remixing existing culture and presenting it in different ways rather than creating something entirely ‘new’. This conflict is apparent in education, but also in n ew forms of creativity which incorporate samples from other media. The current intellectual property regime does not appear flexible enough to deal with such emerging uses.

The Public Interest The difficulty of representing non commercial use at debates on copyright was raised. There is no formal body that can represent the public interest. The National Consumer Council does do some work in this area. It was agreed that governments should be more sceptical of vested interest groups claims in the area of copyright. However there is a difficulty in balancing with economic claims since there is great difficulty in quantifying social benefits of information freedom.