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This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. CREATORS’ ORGANISATIONS AS ACTORS IN COPYRIGHT POLICY: MAPPING THE COMPLEXITY OF STAKEHOLDER BEHAVIOUR, DYNAMICS AND DIFFERENCES Nevena Borislavova Kostova Ph.D. in Law The University of Edinburgh 2017 Declaration In accordance with Regulation 25 of the University of Edinburgh’s Postgraduate Assessment Regulations for Research Degrees 2016/2017, I hereby declare that this thesis has been composed by me, that the work is my own, and that the work has not been submitted for any other degree or professional qualification. Copyright in this thesis rests with the author. ________________________ ________________________ Nevena Kostova Date i ii Acknowledgments I have never run a marathon but I imagine that it is in many respects like writing a thesis. It is up to you to take on the challenge, to train and pace yourself, to stay on track, run the distance, and finally, to cross the finish line. Yet, at every stage, what spurs you on is the guidance, encouragement, care, and support of so many wonderful people. Frankly, you know that without them you wouldn’t be crossing that finish line, and it wouldn’t really be worth it either. * I am grateful to the RCUK Centre for Copyright and New Business Models in the Creative Economy (CREATe) and to the Edinburgh Law School for the studentship that enabled me to pursue this research and develop my capacity to conduct empirical work. I am also very grateful to my supervisors, Smita Kheria and Shawn Harmon, for their valuable advice, guidance, direction, and patience. They were fantastic at challenging my thoughts and arguments, at playing devil’s advocate and thereby driving my own critical thinking and reflection. There is a long list of faculty members at the law school, who have supported me throughout my PhD journey, whether with words of encouragement, or through thought-provoking conversations. I am thankful to Andy Aydın-Aitchison, Nicolas Jondet, Jane Cornwell, Daithí Mac Síthigh, James Harrison, and Anna Souhami, to name a few. Acknowledgments are also due to my helpful, forthcoming, and engaged research participants from The Society of Authors, the Authors’ Licensing and Collecting Society, the Performing Right Society, and the Musicians’ Union. Without their contribution, this research would not have been possible. Over the years, I have been fortunate to be surrounded by fellow PhD students and friends, including Andrew, Yolande, Jiahong, Anna, Laura, Jesus, David, Ben M, Ben C, Shane, Emily, Lorna, Louise, Jamie, JP, and many others, who have always made iii their presence felt, lent an ear, and given me a sense of community, which I deeply appreciate. Finally, I have had an absolute dream team of family and close friends to whom I am endlessly grateful for being by my side through thick and thin. I am thankful to Teresa and Mimi for looking after me and faithfully seeing me through the final stages of the thesis. I am also thankful to AD and Ali for their friendship and companionship, which kept me going during many difficult periods. Thanks are also due to Hanna, Sarah C, Toni, Alex, Ioanna, Anthony, Harsh, Kevin, Michael A, Slavi, Toby, Michael C, Sarah M, Quentin, Juan, Anna and Helene J, Neli, and Lukas for being an important part of my life, and for helping me, at different times, and in different ways, to gather the necessary strength to reach the finish line. I am deeply grateful to my family for their love and support. I would especially like to acknowledge my wonderful mother for her endless love and care, in which I have always taken comfort. I thank her for giving me courage, for her patience and motivating words, and for always being there when I needed her. I am also immensely grateful to Seb for his unconditional love and dedication, for knowing, understanding, and accepting me, and for doing everything he possibly could to make me smile. He consistently stood by my side as a seemingly infinite source of kindness, patience, and calmness. iv Abstract A basic tenet and challenge of copyright law is the need to balance the interests of a range of stakeholders, from authors and performers to publishers, producers, broadcasters, intermediaries, service providers and the general public. To ensure that this balancing act takes place, policymakers involve organisations representing these stakeholders in the development of policy and the drafting of legislation in several ways, including through meetings, public consultations, and stakeholder dialogues. However, the process by which stakeholders steer the course and substance of copyright law and policy, their behaviour, as well as the varying extent to which they impact and characterise the copyright policy framework, have rarely been the specific focus of empirical research in IP. The present thesis examines creators’ organisations (COs) as participants and shapers of copyright policy. Through a socio-legal study into the workings of The Society of Authors, the Authors’ Licensing and Collecting Society, the Musicians’ Union, and the Performing Right Society on several contemporary policy issues, the thesis observes how two types of organisations: trade unions and collective management organisations, across the music and publishing industries, engage in policy work. Through in-depth analysis of primary data obtained from interviews with CO representatives as well as documentary data (public consultation responses, policy briefings, press releases, reports, academic studies, and more), the thesis captures and discusses differences in the behaviour of these actors and argues that these differences are not fully understood by policymakers. It illustrates how factors such as an organisation’s mandate, resources, membership composition, political power, and self-concept, influence an organisation’s policy proactivity. Some actors may be more concerned with influencing the copyright policy agenda itself, while others primarily seek to shape its outcomes. The thesis also identifies power dynamics and imbalances between the COs and argues that some actors are in a better position to effectively participate in policy v compared to others. Furthermore, it discusses the effects of the plurality of actors with varying interests and priorities, as well as the competition of policy issues that this provokes. In this context, the thesis illustrates the complex structure of the copyright policy environment and, in particular, the role of umbrella organisations and ad-hoc coalitions in the furtherance of a particular policy issue or position. It concludes that as a result of complex stakeholder dynamics, power imbalances, and policymakers’ insufficient understanding of these phenomena, certain creators’ issues will not surface onto copyright policy agendas and will thus remain unaddressed by copyright law. The thesis further concludes that complex stakeholder dynamics challenge the objective of developing evidence-based policy and render the copyright policy process unclear and its outcomes unpredictable. Given the disparity of views and positions on many copyright law issues, policymakers often attempt to shape law and policy outcomes as a compromise between different stakeholder interests. However, this does not always produce sound or appropriate results for copyright law. vi Lay Summary A basic principle and challenge of copyright law is the need to balance the interests of a range of stakeholders, from authors and performers to publishers, producers, broadcasters, intermediaries, service providers and the general public. Policymakers try to ensure that this balancing act takes place, by involving organisations that represent these stakeholders in the development of policy and in the drafting of legislation. This occurs in several ways, including through meetings, public consultations, and stakeholder dialogues. However, our understanding of the process by which organisations influence the substance and direction of copyright law and policy is limited. In particular, it is unclear how individual organisational actors behave, what dynamics characterise the stakeholder environment within which they seek to represent their members, and what effect organisations’ behaviour, environment, and dynamics have on the way substantive copyright law is made. This thesis looks at the way creators’ organisations (COs) participate in and shape copyright policy. Specifically, it considers how The Society of Authors, the Authors’ Licensing and Collecting Society, the Musicians’ Union, and the Performing Right Society engaged with policymakers on several contemporary policy issues. The thesis thereby observes how trade unions and collective management organisations across the music and publishing industries