Copyright, Contracts and Creativity

It may come as a shock to those who spend much of their lives wrestling with copyright licences that there has, to date, been very little academic research on the subject of the relationship of copyright and contract. The Centre for Intellectual Property Policy & Management at Bournemouth University has now begun to plug this gap by posting materials from its September symposium on Copyright, Contracts and Creativity – here.

The symposium did not arise in a vacuum. Its organizers are undertaking research on this topic for SABIP (the Strategic Advisory Board for Intellectual Property Policy). SABIP’s research is feeding into government copyright policy.

The government’s copyright agenda published in © the way ahead last month is ambitious. Facing up to the challenges presented by the ease of digital copying, it proposes both to make it easier to get permission (orphan works legislation, extended collective licensing, voluntary rights registers, perhaps an EU non-commercial exception) and harder to infringe (three strikes). Undaunted by the size of this problem, the government is also looking at the fairness of copyright contracts as a parallel line of enquiry.

The symposium focused on contracts with primary creators and, in tune with the government’s concerns, reveals just how discontented those creators often are with their contracts. For example, they resent being pressurized to assign their copyright or waive their moral rights.

The government for its part made the following promise in © the way ahead:

“The Government will draw together a group to develop model contracts or contract clauses that strike a fair balance between the rights of creators and publishers, which will form a benchmark for good practice. These should include alternatives based on licensing of rights to publishers as well as assignment of rights, including reversion of rights where works are no longer being made available. We expect this group to operate in a similar way to the one that created the Lambert Agreements on university business research collaborations.”

This is no mean challenge. Firstly, one of the other issues the government is concerned about is reducing the complexity of rights contracts – less assignments would result in greater complexity. Secondly, however a contract is structured, the key term that determines how fair it is is the one that begins with the letter £. The only sure way to fix this is to reduce the number of talented people who are prepared to work in arty industries for next to nothing.