"Do we come to bury copyright -- or to praise it?" Debate report

The 1709 Blog is grateful to Emma Beverland and Sam Bardon (Freshfields Bruckhaus Deringer) for preparing this report:

The Copyright Debate organised by the 1709 Blog in conjunction with the IPKat, “Do we come to bury copyright – or to praise it?” took place on Tuesday 12 July 2011at the lovely offices of Freshfields Bruckhaus Deringer at 65 Fleet Street, London before an audience of over 200 people.

Setting the scene

The debate aimed to consider two opposing views of copyright: “a vital tool for protecting authors, composers and artists, and for encouraging investment in the recording and transmission of their works to the public” or “ an outdated, cumbersome barrier to the spread of information and to the stifling of the very culture which it purports to promote”.

Mr Justice Arnold, in the Chair, briefly introduced each of the speakers – those who wished to praise copyright: Emily Goodhand (Copyright and Compliance Officer at the University of Reading, she writes the copyright4education weblog and tweets as @copyrightgirl) and Richard Mollet (Chief Executive of The Publishers Association and previously Director of Public Affairs for the BPI), and those who wished to bury it: David Allen Green (head of media at Preiskel & Co LLP, a City TMT firm, legal correspondent for the New Statesman and writer of the “Jack of Kent” blog); and Crosbie Fitch (an R&D software engineer and researcher who tweets and writes the Cultural Liberty weblog).

An initial poll of the audience suggested that a handful were in favour of praising copyright, a handful wanted to bury it, whilst the majority sat somewhere in the middle.

The debate

Emily began the debate with suitably Shakespearean oration, giving her “friends and countrymen” the option to either kill copyright or allow it to live, with no middle ground. In Emily’s view, something that is dead cannot be reformed and so those who would propose to bury copyright must also show that there is a better system to replace it.

Emily discussed the reasons copyright exists and the purpose it serves: it is fundamentally a proprietary right in the work which is the expression of an idea. She argued that those who see copyright as a denial of something they want to do can be compared to those who break speed limits – just because they can do it, does that mean they should? Just because people can drive at 90 miles per hour, does that mean traffic laws should be abolished?

In Emily’s view Copyright gives creators the power to decide what to do with their works – if creators want to put their works into the public domain, they can. Copyright also gives creators recourse to justice if somebody misuses their works. In a world without copyright, creators’ choices are limited as they lose the right to protect their work. She submitted that disregarding the right to own and protect would not liberate creators, but rather would usher in a new dark age. Emily also acknowledged that copyright acts as an economic incentive; most people want something more than satisfaction in return for creating a work.

Emily then considered the fine line between replicating a work and being inspired by it. In her view, defences in the law of copyright allow people to be inspired by works, without protecting verbatim copies. Emily accepted that the defences could, and would, benefit from being updated, but when faced with a choice, she advocated reform of copyright and its solid principles, rather than burying it.

Speaking against the copyright status quo, David hit zenith of Roman imagery when he likened copyright to the gladiator chasing the scrawny slave around the Colosseum in the Life of Brian – out of shape, struggling to do its job. Rather confusingly, David then explained that he did not actually want to bury copyright, but that he had never been over impressed by it in his career as a “bog standard” media lawyer and journalist. David looked at copyright from a practical point of view and considered “worlds without copyright”. From a foray into fashion law, David saw two different attitudes to protecting intellectual property: on one hand, brand was to be protected at all costs, while, on the other there was complete disregard for other creators taking “inspiration” from the designs of clothes (the 6-month-fashion-cycle making enforcement actions pointless). David then pointed to the copy-and-paste world of blogging, where very little copyright protection exists, and yet creativity flourishes. However, David did point out that when one of his blog entries was recently copied verbatim, he (potentially jokingly) asked to whom at the offending publication he could sent his licence agreement.

David further argued that it is unnecessary for copyright to protect an assignee (up to) 70 years after the creator’s death; David was unconvinced that creators and assignees should have the same rights under copyright. David also stated that the current state of copyright law defences and remedies was unsatisfactory – lack of a parody defence and remedies other than a licence fee being available were particular concerns.

David also raised general points about how copyright is treated – should it be seen as a tort, and if so, can we abandon all reference to criminality? He also wondered how much further than moral rights copyright extends, and why the legislation limits the scope of the term “works”.

David concluded that, while he did not want to bury copyright, he did not care very much for it and could not see creativity being limited by diminishing the protection copyright currently affords.

Moving again to the pro-copyright side, Richard began by emphasising that copyright is vital for the economy and cultural society, it’s importance to the “real” world. He caveated his praise by admitting that copyright was not perfect. However he asserted that even if the problems associated with copyright could not be solved, its benefits outweigh its weaknesses.

Richard argued that copyright is the means by which creators are supported, protected and rewarded and the mechanism by which creating becomes economically beneficial to the community. Publishing houses and record labels give economic, creative and distribution support to creators, and it is copyright protection which incentivises these invest to do so. They can engage in trade, confident that they have a right to the works they deal with.

Richard then considered alternative systems. He felt that patronage left the patron rather than the creator calling the tune, and questioned how a creator would meet a potential patron – this could lead to a drop in the different areas of society which contribute creative works. He dismissed micropayments and “contingency markets” systems, suggesting that copyright already included such the features of these alternatives. Richard considered it difficult to think of a system other than copyright which would provide such incentivisation to invest in creativity; providing a Winston Churchill quote, he noted: “copyright may be the worst means to drive the economy…except for all the others”.

As for the people who advocate that creativity and the economy should not be related; Richard dismissed this view as an indulgent state of fancy not in line with the current, parlous state of the economy. He emphasised that copyright has a proven track record of incentivising investors and that the creative economy currently contributes around 7% of the UK’s GDP, and the UK has the biggest exporting publishers in the world. According to Richard, unless we are able to replace copyright and replicate its benefits, we should not support its burial.

Crosbie then took up the anti-copyright cudgel, opening by stating that he was not proposing to bury copyright either, but rather to explain why it was coming to an end. He began by considering the history of copyright. He stated that before copyright there were natural rights; that these rights precede law and are superior to it. Crosbie explained that it is nature, not law, that creates rights. In his view law’s purpose is to protect these rights – rights to life, privacy, truth and liberty. By contrast, Crosbie characterised copyright not as a right but a privilege granted to the minority. He recounted the history of the 1709 Statute of Anne which created copyright for the benefit of the Crown and the Stationers Company in order to recreate the effect of a monopoly and to eliminate the sedition that had arisen in the free press. He asserted that privileges are unconstitutional, unethical and would be viewed by Thomas Paine as “the rights of all, held in the hands of a few”.

Crosbie felt that in the 18th century the relatively few press could be policed and controlled, but that in the 21st century this control has broken down – in the modern world we are all publishers, so copyright can no longer work. In his view, people have been indoctrinated into believing that copyright is a right, but that in fact each of us has the right to copy – law has attempted to annul that right, but it has never left us. Crosbie pointed to recent draconian punishments – fines of over one million dollars and prison sentences for sharing relatively few files – as evidence of publishing houses and record labels resorting to scare tactics to maintain the deception.

Crosbie continued that copyright is a historical accident from a les judicious time which should be rectified. His alternative would be for artists to exchange their works directly for money from fans in an open market – for example if 1,000 fans collectively agree to pay money to an author in exchange for that author agreeing to write a new book. He also asserted that without copyright moral rights remain, to prevent out and out plagiarism, for example . He concluded that copyright is a dead parrot that the market can and will continue without.

Questions from the floor

Mr Justice Arnold then allowed questions from the floor. There were a wide range of questions, the highlights were as follows:

A question on extensions to the length of copyright protection – in particular focusing on the recent USA/ Australia treaty. Are these increases just to further monopolistic interests? Richard answered that it was only right for creators to receive their just rewards, and to be able to provide for their families through their work. Now that people are living longer, the protection copyright affords should be extended as well

One member of the audience questioned why the length of protection afforded to copyright was so long when compared to, for example, protection provided by a patent over pharmaceutical products. Richard answered this by asserting that, despite Crosbie’s views, copyright is a fundamental property right and if we compare copyright protection to that afforded to real property, it is actually an incredibly short period of protection. Given the value of pharmaceutical products to society as a whole, they should be more widely available for exploitation at an earlier point. As Richard put it “songs may change lives, but drugs save them”.

Another member of the audience asked how much copyright has been undermined and damaged by the internet. Emily admitted that she was unsure how to either assess or quantify such damage and flagged this as an area which she considered would benefit from independent research. Once again, she pointed out that certain aspects of the defences to copyright infringement do not hold water with the current times, and were in need of serious examination.

One member of the audience was curious as to why copyright had to be buried in order for a new system to emerge: we have the potential for competition between providing complete protection, and allowing complete freedom, and creators should be allowed to choose the system they prefer to express their creativity.

Mr Justice Arnold also put forward his view that worldwide collective licensing (as per Virgin Media/Spotify) would potentially solve may of the problems.

To bury or to praise copyright?

A final poll of the audience revealed that there were still a handful in favour of the burial of copyright, but that the “praise” group had persuaded a larger smattering of the fence-sitters to their cause.

The majority of the audience were also in favour of a new copyright act being drafted.