Princes or Paupers: Does copyright reward creators?

The sale of creative works for sums in the high millions and the popularity of TV shows featuring wealthy creators can give the impression that producing copyright works is the path to an opulent life. But how does reality for most creators compare?

As one year ends and another begins many turn their attention to looking back at the success brought by the last twelve months. For those working on creative pursuits the headlines can make for enviable reading: Damien Hirst regularly sells works for hundreds of thousands of pounds; J. K. Rowling continues to earn tens of millions (even after Harry Potter); and the top ten musicians of 2013 each individually brought in over $50 million US dollars. Copyright can be lucrative business. But these individuals represent the peak of their profession – the superstars of their respective industries. How does the picture differ for the average creator?


Available under CC BY 3.0 via Wikimedia Commons

Unfortunately for those looking into the subject many everyday creators can be reluctant  to talk openly about their earnings. As a result there is little public discussion to guide the expectations of the majority. Nonetheless over recent years a few artists have been making an effort to spark a dialogue about the realities of creative careers by sharing information on their annual earnings and commercial contracts. Academic work has likewise looked at earnings for some creative sectors in an attempt to build a picture of the realities faced by creators in certain sectors.

The results make for a much more modest picture that the attention grabbing figures of the rich and famous. A consideration of over two decades worth of earnings data – covering authors, visual artists, musicians, and performing artists from the UK, U.S. and Germany – has found that their mean earnings are consistently below the national average wage of their respective countries. Furthermore creators’ wages are highly skewed: The top 10% in many creative sectors earn over half of the collective total of all, while the remaining 90% earn on average sums in the £10,000 range. For most the financial rewards of creativity are low indeed.

Guitar Broken

Available under CC BY-NC 2.0 by Paul J. S.

Unsurprisingly therefore even many ‘successful’ creators remain a long way from living a rock star lifestyle. Frequently creators work second, or in some circumstances even third, jobs in order to get by. In one study by Peter DiCola, for example, only two out of every five musicians were able to work full time on their creative careers and even the relatively successful novelist Jim Hines – an author who has published nine commercial books to date – has found himself unable to commit to working full time to his writing alone. For many their situation is summed up by the title of one Australian survey: “Don’t give up your day job”.

More recently new technology platforms have risen to prominence with claims that they can improve this situation for artists, enabling them to earn revenue from new sources and claiming to pay out at better rates than traditional sources. Not everyone agrees. A particular source of criticism has been the lack of transparency surrounding earnings from such services amid claims that the royalty payments – like earnings generally – are skewed in favour of the minority of superstars and pay little to the average new artist. While the services themselves claim that they provide a fair deal for artists the secrecy and variability of individual royalty agreements makes it hard for the average creator to get a clear picture of who is in the right.

Again therefore the lack of conversation about earnings is highlighted: It is hard to get an accurate picture of what most creators really earn. Despite some efforts by the technology services to become more open frank discussion is still rare and limited to only a small proportion of artists. Irrespective of the source of earnings it appears that the majority simply do not want to talk openly about their financial situation. Arguably this is a loss.

Food for Thought – and Action!

From the 10th of January until the 28th of February, stake holders can once more voice their opinions on the implementation of the UK orphan works licensing scheme and the EU orphan works Directive through the IPO technical consultation on the draft secondary legislation. The document summary page explicitly clarifies that views are sought on the structure and effect of the proposed legislation, while the overall policy shall remain outside the consultation’s scope.


Available under CC BY 2.0 by Marco Bellucci

In brief, the scheme will allow for the commercial as well as non-commercial use of any type of orphan work by any applicant, provided that the applicant has conducted a diligent search for the rights holder and has paid the necessary licence fee. The UK instrument significantly exceeds the scope of the EU Directive, which only allows for certain specified uses of orphan works (excluding in particular stand-alone photographs) by publicly accessible archives, libraries and other institutions dedicated to public-interest missions.

Going through the consultation paper and the questions put forward, it was interesting to review some of the preliminary decisions drafted in the proposed legislation. Perhaps rather less surprising is the choice of the IPO as the body authorised for the licensing of orphan works, bestowed, among others, with a duty to ensure that an applicant’s search for the rights holder meets the requirement of diligence.

The proposed legislation seems to have taken account of a few of the concerns voiced in the previous consultation, for instance, by conceptualising the scheme as ‘domestic’, i.e. the IPO will only be able to license use of orphan works within the UK and will thereby not interfere with or override potentially different approaches to the handling of such works in other countries. Previously, the Association of Photographers Limited had expressed its worry that authorising the use of orphan works outside the UK could result in a ‘quid pro quo’ situation where other countries could start licensing their orphans in the UK, thereby negatively impacting the use of UK oriented works and damaging creators’ incomes.

The draft legislation further intends to equip the IPO with discretion to refuse the grant of a license when it deems that the proposed use may constitute derogatory treatment of the work, or for other public interest considerations. Also with regard to moral rights, creators’ organisations’ views were heard.  The proposed instrument provides that the use of an orphan work does not affect the moral rights of an author and that such rights shall be treated as having been asserted.

Open for consultation remain in particular the questions of how unclaimed licence fees of orphan works should be distributed and at what point this should happen. For how many years will a re-appearing right holder have the right to claim the money collected?

In its last set of questions pertaining to the domestic UK scheme, the IPO once again seeks to gather information on the anticipated volume and type of use of orphan works. Updated facts and figures need to complement the existing impact assessment if stake holders want a law which will adequately meet their needs. The clock is ticking…