A Country with Exceptional Copyright Law


Available under CC BY-NC-ND 3.0 by DrMeloche

A very engaging and thought-provoking report on the ‘Contractual Arrangements Applicable to Creators’ was completed in January 2014 and recently published. The study, authored by members of CRIDS and KEA, and requested by the European Parliament Committee on Legal Affairs, explores and compares relevant legal provisions under copyright and contract law in eight European jurisdictions. It thereby seeks to draw conclusions on the extent to which the existing legal framework of Belgium, France, Germany, Hungary, Poland, Spain, Sweden and the UK sufficiently addresses the special circumstances of creators, in particular their weaker bargaining position, when they undertake contractual obligations to exploit their rights.

The study expressly limits its focus to the initial contract between the author and the first publisher or producer, acknowledging that the later chain of contractual agreements, between the publisher and third parties, which allows for the full exploitation of the work, significantly impacts on the ultimate position of creators.

In the first part, the authors of the study provide some background information on the context of exploiting works. Next, they look at provisions, available under copyright or general contract law, which offer protection to creators in their contractual dealings. This is followed by an analysis of a selection of contemporary issues, which pose particular challenges to the protection of authors and the fair exploitation of their rights.

The study provides a very insightful account of the issues concerning authors’ contracts and ample food for thought in its concluding section, which discusses and offers recommendations on how to tackle some of the identified challenges. Within the second part, the review of the legal provisions protecting the author in copyright contracts, what struck me most was the frequent recurrence of a set of synonymous phrases: “With the exception of the UK”, “There are no rules in the UK”, “The UK has no rules”, “The UK differs from other countries”, etc. Interestingly, all these phrases are used to describe the present state of UK copyright law, in comparison to the other examined jurisdictions, with regard to provisions which could arguably reinforce the position of authors in their contractual dealings.

Having come across these phrases a few times, I decided to make a list of the areas identified in the study, where, in comparative terms, UK copyright law appeared to be lagging behind in authors’ protection. Although my list became quite lengthy, I will now outline some of the issues.

The first set of differences relate to the broader issue of determining the scope of rights transferred (at 2.1.3) in the copyright contract. The study identifies that a number of countries have introduced mandatory contractual provisions in their copyright laws, in order to ensure that particularly the transferees, a term used in the report to designate the other party to the contract, draft the actual scope of the rights to be transferred more precisely. With regard to future works (at for instance, i.e. works which have not yet been created and the form and content of which are still unknown to the author herself, contract clauses which license the use of an unlimited number of future works are null and void in Belgium, France, Hungary, Spain and Poland. In the UK, on the other hand, case law permits the assignment of future rights and there are not rules limiting the transfer of future works to protect the interests of authors.

Similarly, strict rules limit the possibility of parties to sign a contract transferring all unknown forms of exploitation (at in Belgium, France, Hungary, Poland and Spain, while German copyright law allows such clauses but grants authors the right to demand adequate remuneration. With new, often unpredictable, business models constantly springing up in the digital marketplace, the want of transferees for abstract contractual clauses enabling them to tap on such new revenue streams in the future, is more than understandable. However, so is the interest of authors to be able to control and benefit appropriately from future uses of their works. In this respect, again, the UK has no provisions under copyright law, regulating the transfer of rights for future and unknown forms of exploitation.

Restrictions on the transfer of moral rights (at also fall under the category of compulsory contractual provisions determining the scope of rights transfer. In this context, the UK is once more described as an exception to the general case within other jurisdictions where moral rights cannot be waived entirely, while partial and limited waivers may be possible.

The study further reveals that, with the exception of the UK, the countries reviewed have a number of rules dealing with the remuneration of authors and recognise in their legislation that the author has a right to be remunerated for the transfer of her rights (at 2.1.4). Also, some jurisdictions have an “in dubio pro autore” rule in place for the interpretation of unclear contractual clauses. Accordingly, if a right or a form of exploitation does not appear in the contract, it is presumed to not be covered by the transfer. A similar rule, favouring authors, exists in German copyright law. It is known as the “purpose-of-transfer” rule, according to which uses which were not envisaged at the time the contract was signed remain outside its scope. Again, the study informs, UK copyright law differs from other countries as it lacks any author-friendly rule on the interpretation of unclear contractual terms.

What puzzles me is that current UK copyright law clearly appears to leave much room for improvement when it comes to author-friendly provisions. Reports, such as the 2013 Global Intellectual Property Index, which compares 36 jurisdictions and ranks UK copyright law at the very top, drive attention away from this problem and possibly even send the wrong message to the UK legislator.

When it comes to copyright contracts on the island, policy makers can at least uphold the principle of freedom of contract… but doesn’t this principle presuppose equality among the contracting parties?

Squaring Analogue Copyright with Digital Humanities or… “Storming the Barricade”?

By Chen Wei Zhu

Modern copyright—which owes its origin to the Statute of Anne of 1709—is an institution constantly facing challenges. This three-century old legal regime, which has largely co-evolved with print culture, is again called into question on a tumultuously large scale by the latest development in the digital humanities. Digital_Humanities, a refreshingly forward-looking treatise on the subject, throws down the proverbial gauntlet:  

“The copyright system is badly broken, and it is seriously curbing innovation on a multitude of fronts. Digital humanists will have no choice but to continue to storm the barricades for the causes of open access, copyright reform, and the global cultural commons.”

Suppose you are a copyright lawyer and are not content with just being a black-letter one: are you ready to respond to the digital humanists who are determined to “storm the barricades”?  Before answering this question it is probably worth asking a more basic one: What exactly is meant by “digital humanities”? A quick search of the landscape will soon prove that an attempt to pin down “digital humanities” within 5 minutes is doomed to fail. This seemingly “basic” task is by no means a trivial undertaking. Instead it turns out to be a ponderously profound philosophical one; one which goes straight to the heart of the meaning of the “humanities” and, ultimately, that of being “human” in the digital age. A Cartesian-type motto “I digitise, therefore I am” is unlikely to be satisfactory. The existential angst is prevalent among digital humanists, but it is largely a healthy one. It has already resulted in a few weighty tomes such as Defining Digital Humanities, Debates in the Digital Humanities, and Understanding Digital Humanities which almost turn this ontological search into a near-respectable academic discipline in its own right!

The proliferation of published studies on the definition(s) of the “digital humanities” indicates a lack of consensus among scholars, though this does not have to be a sign of lack of enthusiasm. In fact, the self-questioning among digital humanists strikes me largely as a vibrantly healthy one. As it is impossible to explore the total complexity of the issue here, please allow me to highlight just three characteristics of the digital humanities. These are: (1) the use of computational methods; (2) the “compositionist” approach; and (3) the scepticism about (or possibly activism against) intellectual property, each of which I will try my best to briefly elaborate on in turn.

Firstly, the digital humanities grows out of “humanities computing” which extensively employs computational methods in humanities subjects. Its beginning harks back to the admirable efforts of the Jesuit priest Roberto Busa (1913-2011) who started to plan a machine-made concordance of Thomas Aquinas’s oeuvre as early as the1940s. Busa’s experiment, assisted by IBM, eventually resulted in a 56-volume Index Thomisticus in print, which was achieved before the digital age (A digital version of this was only later made available on the web). Today’s “digital humanities” are essentially built upon Busa’s ambitious vision, which attempts “the automation of every possible analysis of human expression” spanning this “in the widest sense of the word, from music to the theatre, from design and painting to phonetics”.

Roberto Busa

Roberto Busa and his Index Thomisticus
Available under CC0 1.0 by Antonio G Colombo

The second characteristic of the digital humanities is marked by its endeavour to “compose” or “build” digital objects. It is subtly different from the conventional understanding of humanistic queries as “critique” that merely intends to tear things down. This distinction is made clear in both Latour’s Compositionist Manifesto and Stephen Ramsay’s much quoted “On Building”. For Latour a discursive shift from “critique” to “composition” is like using a hammer to “repair, take care, assemble, reassemble, stitch together” rather than to “break down walls, destroy idols, ridicule prejudices”. (A hat tip here to Robin Wharton’s lucid explanation of this “compositionist” model in the digital humanities.)  For Ramsay, “building” represents a radical change in humanistic exercises from “reading” to “making”. (Note Mark Sample’s argument that digital humanities is also about “sharing”). Digital humanists as builders are like those good old software programmers who know how to hack smartly rather than just yacking loudly. I cannot resist using Old Bailey Online as an example that has been persistent in “building” an invaluable resource containing digitised court proceedings from 1674 to 1913. It also makes itself hackable by providing an API – an Application Programming Interface – for ordinary working historians to use to perform data mining via the Zotero reference manager.

Finally, digital humanists believe in “open source and open resources” as firmly asserted in the Digital Humanities Manifesto 2.0. This thought-provoking manifesto argues that “copyright and IP standards must be freed from the stranglehold of Capital” and, more fundamentally, calls for the restoration of the original meaning of the word “copy”: namely “abundance”:

“COPIA = COPIOUSNESS = THE OVERFLOWING BOUNTY OF THE INFORMATION AGE, an age where, though notions of humanistic research are everywhere under institutional pressure, there is (potentially) plenty for all.” (Original emphasis)

Interestingly, the above statement reminds the readers of the fact that copyright is not just about content owners’ exclusive rights. It also has a laundry list of exceptions allowing the non-owning public to “copy” abundantly without permission. The recent ruling in Authors Guild v Google, which won a prestigious Kat-award for the most important copyright decision of 2013, may just be seen as an olive branch sent by copyright law to the digital humanities community. The court seems to have been largely persuaded by an amicus brief co-written by digital humanists and law scholars, who argue that Google’s mass digitisation is fair use because of its non-expressive and transformative character. It is further believed that this American copyright decision may also have an indirect impact on the European legislative scene.

Combining the three characteristics briefly touched upon above the digital humanities must not be seen as one discipline. Instead it is an inter-disciplinary platform that is gradually being both created and tested out at the same time. It worries about its own ontological existence just as much as it is sceptical about copyright as a legal form that regulates digital creativity. However this worry and scepticism does not have to be devastating but may instead inject new insights that help to envision the future of the humanities as well as that of copyright.

Dr. Chen Wei Zhu is currently a Postdoctoral Fellow in the Institute for Advanced Studies in the Humanities (IASH) at the University of Edinburgh.

Stack Them High, Sell Them Low: Can Creators ‘Get Lucky’ By Selling Merchandise?

Spotify has recently announced the ability for artists to offer merchandise to fans through their platform without taking any commission. Is this a valuable opportunity for creators or, as some have claimed, simply a cynical attempt by Spotify to improve its sometimes shaky relationship with artists? Is merchandising actually useful as a source of revenue?

All sorts of goods have been offered for sale by creators over the years. The American band Kiss has sold coffins; Boy band One Direction have their own line of toothpaste and toothbrushes; and recent Grammy award-winning band Daft Punk last year released a range of condoms packaged with the distinctive art of their hit record “Get Lucky” (although, as one commentator noted, they missed the golden opportunity to brand after their song “Harder Better Faster” instead ). The opportunities are endless.

When done well these offerings can make huge sums for their original creators. Pixar, for example, produced a follow up to their animated film Cars on the back of an estimated US $10 billion in revenue generated from merchandise associated with the first instalment. Even smaller movies such as the Australian work Beached Whale have been able to raise over US $2 million through such channels despite being made on a budget of only fifteen Australian dollars and being freely distributed on YouTube. With the decline of traditional revenue streams, such as licensing, merchandising is only likely to continue to be an important part of monetising works such as animation. Indeed capitalising on the market for merchandise will arguably be critical to long term success: it can even make money from beyond the grave!

This is not a new concept. For generations musicians have sold t-shirts and other goods at gigs while many museums over the years have found that free access to their collection can be offset by revenues gained from selling merchandise in the gift shop. Merchandising has long played a part in the business models of creators from across the spectrum of pursuits.

Old Money

Available under CC BY-NC-ND 2.0 by Christopher S. Penn

It has however become an increasing topic of discussion in recent years as the traditionally dominant revenue streams in some industries have dwindled. The recorded music industry in particular has seen increased attention paid to merchandise as falling record sales have been met with an increase in record labels signing artists to so called ‘360 degree deals’: deals in which the label takes a share of a several of their artist’s revenue streams rather than solely record sales. Merchandising is often included.

These kinds of deals leave the signed musician in an uncomfortable position. While the record labels see ‘360 degree’ contracts as a partnership with artists for mutual benefit it can be argued that for many artists they are not a good idea. Merchandising is one way in which a band can compensate for the fact that record contracts rarely provide the band with much revenue. Giving the labels a slice of merchandising revenue on top of the traditional record sales can therefore erode musicians’ earnings.

This is only compounded by the fact that the sums raised from merchandise do not appear to be large to begin with for most artists. Some studies have found that as few as five percent of musicians are able to earn more than a tenth of their income from the sale of merchandise and it seems clear that merchandise, while a nice bonus, simply doesn’t earn enough to play the bills for the majority. To lose a portion of this already meagre income may be painful.

One Direction Merchandise

Not all merchandising is this successful … Available under CC BY-SA 2.0 by Eva Rinaldi

In other sectors creators may even need to think carefully about whether some types of merchandise can be useful at all. For traditional visual artists, for example, the sale of merchandise may harm more than it helps. If merchandise bearing an image of an artwork is sold in close proximity to the original work sales may be cannibalised: Replicas can be a substitute for the original for some. If not carefully thought through therefore some types of merchandise may actually lose a creator money.

Even where selling merchandise doesn’t make an artist rich however it can still be worth doing. Merchandise can play a significant role in the building of a brand around a creator and their works and thus can benefit their career overall even if it contributes little financial return in the short term. A creators’ brand can have a big impact on their chances of success and some industry players have even gone so far as to argue that it is an essential consideration.

Overall therefore it appears that merchandising has many upsides and few downsides. While for most it may not prove to be a huge earner it can help to grow a brand and, if carefully thought through, will likely contribute at least a small increase to net revenue. While it is possible to assign cynical motives to recent efforts by Spotify to allow the sale of merchandise it therefore nonetheless offers a valuable avenue for creators to exploit.