Copyright – Page 3 – Copyright and Creators

The Fall and Fall of Authors’ Earnings

July 18, 2014 Nevena Kostova Business Models, Copyright

On the 8^th of July ALCS, the Authors’ Licensing and Collecting Society, published the results of its latest survey on the earnings of authors. The reported figures were so staggering that they received wide media attention through publications on the BBC, the Guardian, the Telegraph and the Bookseller, to name a few.

In brief, the main findings of the survey ‘What are words worth now?’ conducted by Queen Mary University show that only 11.5% of professional authors (a term used to refer to authors who dedicate the majority of their time to writing) make their living from writing alone. What is more, the typical annual income of professional writers stands at £11, 000. This figure is in itself disconcerting but it appears even bleaker when compared against the ALCS last piece of research on authors’ earnings from 2007, which reported annual median earnings of £12,330 for the financial year 2005. The ALCS also criticises the low figure by highlighting a 2013 finding by the Joseph Rowntree Foundation that single people in the UK need to earn at least £ 16,850 before tax to be able to achieve the minimum acceptable living standard.

Image available in the public domain by Wikimedia Commons

All these numbers so far relate to the earnings of professional authors, which, as the survey suggests, only make up a little over a tenth of all writers. For the remaining 88.5 % the trend is similar. The 2013 median income of ‘all writers’, i.e. full-time, as well as part-time and occasional writers, stands at £ 4,000. That is around £ 4,800 less than what was reported as the annual income of all writers in real terms in 2000 by the Society of Authors. The newly published findings are based on the data of 2,454 participants, hardly a negligible number. Hence, when the ALCS communicated the results of its latest survey on its website it introduced them with the following caption: ‘What are words worth now? Not much.’

It seems to me, however, that ‘Not much’ doesn’t really do reality justice. Books, along with other creative goods, must clearly be worth a lot. How else is one to interpret the 2014 statistics issued by the Department of Culture, Media and Sport according to which the creative industries now contribute £71.4 billion per year to the UK economy? The survey answers the question of the monetary value which creative works deliver to creators. Yet, further questions which need to be addressed include, where does the rest of the money go? What is the role of copyright in this context? And finally, who can do and who is doing something to change the present landscape for authors?

Image available under CC BY-NC-ND 3.0 by Ian Britton

Various reasons have been suggested to explain the newly published findings. Nicola Solomon, the chief executive of the Society of Authors is quoted by the Bookseller as affirming that the author’s share of the profits from publishing and book retailing has gone down. She also identifies as a knock-on effect for authors Amazon’s increasing share of the book retail market. In light of the high discounts which the company offers it successfully drives prices of works down on a larger scale.

Other factors which have been brought up in connection with the survey include disproportionately low royalty rates for e-books, ineffective measures against illegal downloading as well as a general decrease in book sales and an ensuing decrease in publishers’ advances to authors.

Considering the role of copyright in this context, it is interesting and perhaps a little dubious that according to the ALCS survey over 69% of the respondents reported that their contracts allowed them to retain copyright most if not all of the time. One may have expected a different picture given the reported numbers on authors’ earnings. After all, in theory, copyright is the intellectual property right which empowers creators, such as authors, to control whether and how the work is used by others. It is the economic asset which authors can exploit to receive financial rewards for their works. If authors still own their copyright, then this should put them in a stronger position to negotiate the terms of use of their works.

Yet, if the majority of authors retain copyright in their works and still only earn as much as they do, where does the problem lie? Why is copyright not working the way that theory prescribes it should? The survey findings may be taken as an indicator that industry practice is focussed not on right transfers but on licensing. Although authors retain their copyright, they may be forced to negotiate unfavourable exclusive licenses, which in turn, may cover a wide range of uses. This means that authors lose the opportunity to negotiate different conditions with a number of marketers for various types of content exploitation. Furthermore, the question of copyright ownership is irrelevant in the context of piracy and illegal distribution of copies of works.

Perhaps in order to highlight a way of avoiding the conditions of market intermediaries, the ALCS survey also reports on the number of authors who have self-published their works (just over 25%). In principle, this model could enable authors to retain larger shares from the sale of copies of their works. However, while self-publishing as a business model seems to be on the rise, self-published works cannot compete with the marketing efforts and publicity that traditionally published works enjoy.

Overall, the survey sheds light on many important issues and problems. The question is how these challenges can be tackled, and by whom? During a mid-June event this year organised by the Westminster Media Forum on the next steps for copyright policy in the UK and EU Maria Martin-Prat, Head of the Copyright Unit of the European Commission, mentioned vaguely that the Commission had been studying the extent to which there are legislative mechanisms which can help authors and performers get fair remuneration for their contribution to creativity. It will be interesting to see if and how the new Commission picks up on this issue.

justice_league_fanfic_by_theyallfalldown-d372vzj

Authors may need a justice league of their own. Image available under CC BY-NC-ND 3.0 by theyallfalldown

Still, when it comes to industry practices not all is, or should be, in the hands of the legislators. Various organisations, including ALCS and the Society of Authors can and do play a role in representing and promoting the interests of authors. How do they execute this role and what contribution do they make to improve the working conditions for authors? I will seek to shed light on these questions in the course of my research.

Periodic studies into authors’ earnings such as those commissioned by ALCS and the Society of Authors are already a valuable instrument which helps us identify industry trends and shortcomings as well as anticipate future challenges. In commenting on the latest survey, Owen Atkinson, Chief Executive of ALCS, noted that the decline in author incomes and in the number of authors who take up writing professionally may have serious implications for the success of the UK creative industries. This seems inconceivable given present statistics on the state of these industries. Yet, business models which continue to drive authors’ earnings down cannot possibly be sustainable against the increasing costs of living. It is questionable how long we can afford to take authors’ insufficiently valued labour for granted.

Technological Tools in the Legal Context: A New Approach to Legislative Enforcement?

July 4, 2014 Blogger Business Models, Copyright, Technology

By Guest Blogger: Jesus Manuel Niebla Zatarain

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In today’s digital society information technological tools play an increasingly major role in everyday life. By the end of 2013 as many as one fifth of the global population owned a PC and the number of people with access to the internet worldwide is rapidly approaching three billion.

The legal framework has been forced to adapt as society has increasingly been inclined to use technological implementations to perform acts that, in the past, had solely been carried out by humans. As the use of computers grew so both did the need for laws to govern these emerging uses and for technological devices that could allow the law to be enforced.

For creators, information technology has correspondingly become a key part of their business reality. Digital sales in books, music, and videogames have all outstripped their physical counterparts over recent years and around the world laws have been enacted and technical means attempted to help protect their creators legal rights. With these approaches struggling to have an impact, however, could information technology tools help creators in another way by allowing the law to develop a more effective approach?

The internet can be a beautiful thing … Image available under CC BY 2.5 by The Opte Project

The idea of using technological devices to improve the way in which law is implemented is not a new one: The field is called legal informatics and, as Erdelez and O’Hare explain, it draws upon an interdisciplinary approach:

“The American Library Association defines informatics as “the study of the structure and properties of information, as well as the application of technology to the organization, storage, retrieval, and dissemination of information.” Legal informatics therefore, pertains to the application of informatics within the context of the legal environment and as such involves law-related organizations (e.g., law offices, courts, and law schools) and users of information.”

As a branch of legal science problems are solved in legal informatics by the application of those legal criteria which are considered to be accepted, relevant and comprehensible by the legal community. Where legal informatics goes beyond traditional legal approaches and is through the use of electronic devices that it can address to problems that are unreachable through common legal standards.

In today’s world parliamentary legislation has increasingly become just one amongst many sources of legal regulation and has faced a number of criticisms as a potential source of protection. Legislation is static and slow to adapt in the face of a swiftly changing technical realities; national in the face of an increasingly global world; and is created by political bodies lacking the necessary technical, economical, and legal competence to address the increasingly complex problems that arise as a result of technology.

… but technology can sometimes cause problems. Image available in the public domain by OpenClips

Some scholars have however argued that information technology is not just a problem that legislators have to grapple with but can also be part of the solution. The fact that legislation needs to coexist with other sources of the law does not make it less important and less central, rather it is in these kinds of situations where the co-operation between law and technology can be exploited at the highest. Information technology tools could potentially help make the law more responsive by enabling legislation to anticipate technical development at a fundamental level and legislators to anticipate the results of potential changes in advance. Such tools can also improve the ability of non-experts (such as creators) to take advantage of the law by making legal information more accessible and enabling greater participation in the legislative process.

Such an approach is not without its challenges however. Legal informatics is a discipline which deals with the use of information technologies to process legal information and support legal activities: namely the creation, cognition and application of the law[1]. These are however activities which involve processes related to human reasoning such as decision taking, problem solving and learning. The use of information technologies in these contexts therefore requires the development of AI software that is capable of emulating features that are closely related to human intelligence in order to be able to solve problems and create logical replies – a challenge indeed!

Also, even if effective AI can be developed for these purposes it is worth mentioning that human operators would still be required to play a role in the enforcement and evaluation of the law. While information technology tools could improve the quality of the legal decision making their use will depend of their operator’s will to do so.

Overall, there are many possible implementations of informatics to the legal world which could potentially improve legislation such as copyright but there are still challenges that must first be overcome. Information technology tools could ensure that legislation and legislators are better equipped to cope with technological change whilst also making it easier for stakeholders such as creators to engage with the law more effectively. However their full and effective use is dependant upon the development of robust and flexible AI systems.Despite the challenges however it is clear that legal informatics offers the potential for interesting things in the future.

AI, Copyright, Legal Informatics

Back of(f) the net? FIFA, football, and online streaming

June 20, 2014 Blogger Copyright, Technology

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As many readers will undoubtedly be aware, the most expensive football World Cup to date kicked off recently in Brazil with thirty two teams competing over the course of a month for football’s biggest prize. Millions of fans are expected to travel around Brazil in pursuit of World Cup festivities while billions more around the world follow the matches live on TV. In today’s digitally connected world many of these fans will tune in online, leading to predictions that this year’s World Cup will set new online records for the streaming of content.

For such a huge (and financially lucrative) event the organisers FIFA understandably aim to ensure that fans stick to legal, licensed broadcast avenues. In an effort to achieve this online as well as off FIFA have reportedly sent letters to the owners of prominent streaming websites, warning them of the potential consequences of allowing their sites to be used for illegal match streams.

In their letters however FIFA not only ask site owners to do all that they can to remove copyright infringing content but also ask them to put in place pre-emptive measures during the World Cup to make sure that this can be done swiftly. Allegedly this includes demands that both sites have staff present during each and every World Cup game to take down material and that they provide FIFA’s own enforcement company with the tools to remove any infringing streams directly.

With online streaming presenting an ongoing problem for many football rights holders (and with streaming increasingly becoming an important source of revenue for many other content creators) it is worth exploring whether the copyright enforcement measures demanded by FIFA can in practice be enforced. Can creators and rights holders really demand that intermediaries grant them control over content and commit to take-down times in the minutes?

These aren’t the kinds of streams that FIFA is worried about… Image is in the public domain by mandy

As a starting point to any such discussion it is important to establish whether online streaming infringes upon copyright at all. Fortunately, the European courts have provided some guidance in this area. Copyright grants its holders a number of exclusive rights including, most notably for streaming purposes, the right to restrict communication to the public of the protected work. The European courts were invited last year to consider whether online streaming qualified as a ‘communication to the public’ for these purposes and, in their judgement, came to the conclusion that it did. As such streaming a work falls within the exclusive rights of the copyright holder.

In the UK implementation of this decision however there is an important caveat that may undermine its impact. Section 73 of the UK Copyright, Designs and Patents Act provides a defence against copyright infringement for those who re-transmit by cable the content of a wireless broadcast made by any of the listed ‘qualifying services’ (a list which includes, in particular, TV broadcasts by the BBC or channel 3 – the two channels who, unfortunately for FIFA, will be broadcasting the 2014 World Cup games in the UK). The UK courts in this case found that streaming websites are able to take advantage of this section when re-transmitting live TV over the internet, although only to the extent that they are streaming to users in the region to which the original broadcasts were made. As a result, demands that streaming sites remove these channels may face difficulties on this ground.

It looks like a lot of people will be spending the upcoming month watching these very closely… Image made availble under CC BY-SA 2.0 by Glenn Harper

Outside of this particular exception however rights holders generally will have the right to prevent streaming websites making their content available to the public without permission. Nonetheless, while rights holders would be within their rights to demand the removal of their content by site owners what is not clear is whether they can insist upon the level of co-operation and access that are being sought by FIFA in their World Cup letters.

That infringing content appears on streaming websites does not automatically mean that rights holders can require these sites to take any action that they desire to prevent or remove it. A series of previous European decisions, concerning the filtering of copyright infringing content, has established that courts must strike a balance when considering the appropriateness of copyright enforcement measures between the intellectual property rights of the copyright holders and the protection of competing fundamental rights for the businesses and individuals affected.

Image is in the public domain by Jon Sullivan

In particular the courts have noted the need to weigh effective enforcement against the right of the intermediary to conduct a business and against the freedom of information of internet users. Demands such as FIFA’s must therefore be considered in this context.

In FIFA’s favour fall arguments that events such as sporting matches are time-sensitive and, as a result, the value of enforcement diminishes significantly if it can’t be carried out before the event is over. If the removal of links is delayed until hours or days later the majority of the loss from this will have already been suffered by the rights holder.

On the other hand, however, the owners of streaming sites could argue that requiring take-down times measured in the minutes (as FIFA’s demands would appear to require) would create such a burden on their resources that their business would struggle to survive. FIFA’s alternative – that site owners allow enforcement companies to take down content directly – is arguably even worse, as it would give a third party substantial control over the content of the site and allow them to govern what information flows through it.

Finally, any balancing act would have to take into account the availability of alternative means of protection. A large number of sites have been blocked at an ISP level in the UK and the Premier League has already demonstrated that it is possible to get streaming websites blocked as well. It may therefore be hard to convince a court that the burdens of the suggested enforcement actions are necessary while working alternatives exist.

Overall therefore it would appear that, while creators may often have the right to have their unauthorised copyrighted content removed from streaming websites, any demands such as those made by FIFA would be subject to a balancing test by the court: A balancing test that, it could be argued, they would struggle to pass.

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