stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43

Stopping the supertanker

Famously, because of their sheer mass and momentum, supertankers take a very long time to stop or change direction. Equally famously, they can cause appalling environmental pollution. Collectively, Clause 43’s proponents closely resemble a supertanker.

On the 19th of March, the British Library issued a press release triumphantly publicising its new relationship with brightsolid, owners of Friends Reunited and commercialisers of 1901 and 1911 UK Census data:

“The British Library's Chief Executive, Dame Lynne Brindley, will today announce a major new partnership between the Library and online publisher brightsolid... The ten-year agreement will deliver the most significant mass digitisation of newspapers the UK has ever seen: up to 40 million historic pages from the national newspaper collection will be digitised.”

“brightsolid is taking on the commercial and technical risks of the project, with no direct costs to the British Library. The firm will digitise content from the British Library Newspaper Library, which it will then make available online via a paid-for website as well as integrating it into its family history websites.”

Let’s just note that use of the word “commercial” for a moment. brightsolid continue:

"We're also closely linked to the publishing community through our parent company, DC Thomson and we very much see this project as a collaboration with the industry. In fact we are already in dialogue with some rightsholders and expect this to continue throughout the project.”

Unfortunately that dialogue doesn’t appear to include James Murdoch, Chairman and Chief Executive of News Corporation. The British Library press release continues:

“Along with out-of-copyright material from the newspaper archive - defined in this context as pre-1900 newspaper material - the partnership will also seek to digitise a range of in-copyright material, with the agreement of the relevant rightsholders. This copyright material will, with the express permission of the publishers, be made available via the online resource - providing fuller coverage for users and a much-needed revenue stream for the rightsholders.”

Mr. Murdoch doesn’t seem to be terribly keen on this:

“Take the current controversy over the Library’s intention to provide unrestricted access to digital material. Material that publishers originally produced – and continue to make available – for commercial reasons. Like the search business, but motivated by different concerns, the public sector interest is to distribute content for near zero cost – harming the market in so doing, and then justifying increased subsidies to make up for the damage it has inflicted.

The case of the British Library goes even further. Just yesterday, the Library announced the digitisation of their newspaper archive – originally given to them by publishers as a matter of legal obligation. This is not simply being done for posterity, nor to make free access for library users easier, but also for commercial gain via a paid-for website. The move is strongly opposed by major publishers. If it goes ahead, free content would not only be a justification for more funding, but actually become a source of funds for a public body."

To recap, the British Library intend to digitise in-copyright newspaper pages and make them publicly available. Everyone involved appears to forget that a typical newspaper page embodies multiple copyrights: the layout, text and photographs created by the publisher’s employees are the publisher’s copyright, but text and photographs syndicated or licensed from freelancers or agencies remain the copyright of their creators and rights holders. The publishers of said newspapers would not be the copyright holder - they are a licensee but not the licensor. Single use rights would have been assigned to the newspaper for the printed edition and payment made on that basis, so any further use, including digitisation, would require a broader and more expensive license.

We would question whether the publishers of the newspapers had acquired the rights to sub-license creative works for such a project.

James Murdoch, again:

“A public body like the British Library, for example, is not driven by a bottom line. But as an organisation, the Library has a clear incentive to extend the range of its services as widely as possible and thus secure more public funding to do so. This is a circular process: funding drives new activity, which creates more requests for funding; popularity makes demands on the public purse easier to bear.”

The Google Books Settlement came about because Google unilaterally set about scanning millions of books, wafted along by naïve euphoria from freetards, and in breach of copyright law. They're now so big and have such a stockpile of scanned books that they're almost an immovable object. Big Culture have watched this happen and wish to play the same game. In fact they're already a good way along that road, implementing plans drawn up and negotiated while the Digital Economy Bill was still in gestation, based on the assumption that Clause 43’s provisions for so-called Orphan Works Licensing and Extended Collective Licensing would by now be law.

Stop43 doesn’t object to digitisation to preserve Intellectual Property - in fact in our New Thinking proposal we advocate changes in copyright law to properly legalise it. We do object to its subsequent commercialisation without reference or recompense to us - creators. This British Library project does exactly what we object to.

The BBC has also been busy.
They seem very keen to talk down copyright, talk up so-called “orphan works” usage, and to loudly complain about how rights holders prevent the BBC from doing what they want.

Dame Lynne Brindley also figures in an earlier press release: “Dame Lynne Brindley DBE, Chief Executive of the British Library, appointed to Strategic Advisory Board for Intellectual Property (SABIP)”, whose remit is to "Provide Government with Independent, Strategic, Evidence-Based Advice on Intellectual Property Policy”.

SABIP’s report on The Economics of Copyright and Digitisation was published on 26 May 2010. The Executive Summary document itself contains no real information or facts and figures, just assertions. It poses questions but gives no real answers other than to direct the reader towards certain conclusions. SABIP's report offers implied solutions to the unstated problems and a distinct leaning towards Extended Collective Licensing as a way of easing the administrative burden whilst consistently ignoring the fact that they are dealing with other people's property.

Nowhere does the report appear to consider how independent freelance expert creators might develop and sustain their expertise if they are deprived of copyright of their works and income from their use. The report seems to us to be a way of bringing in Extended Collective Licensing and justifying the British Library exercise at the same time. Unsurprisingly, given that SABIP is a quango, the report pleads for further research to be carried out.

We note that SABIP's Board appears currently to consist of Dame Lynne Brindley, a career civil servant, a business consultant, a solicitor and what appear to be the heads of a regional quango and an investment company. The quangocracy laid bare, indeed. No-one involved appears ever to have spent any substantial part of their careers as independent creators of Intellectual Property, living on the proceeds of licensing their creations, or founded and run a company doing the same. Current, active, freelance creators of Intellectual Property are notably absent.

In the course of her career, Dame Lynne’s only foray beyond the groves of Academe and the public sector appears to have been a spell consulting for KPMG. SABIP is entirely composed of salaried, career academics and administrators, as are their secretariat and advisory staff.

We wonder how it might be that a supposedly independent advisory board influencing Intellectual Property policy should contain the Chief Executive of an organisation, namely the British Library, that directly stands to gain from policy recommended by that board. To us that appears to be an irreconcilable conflict of interest.

SABIP appears already to have been caught “sexing up” figures for the number of illegal downloaders of copyright works, perhaps unsurprisingly when SABIP’s advisory staff includes Shira Perlmutter, the International Federation of the Phonographic Industry (IFPI)’s Executive Vice President for Global Legal Policy.

We conclude that SABIP as currently constituted is not at all “independent” and exists in practice to provide apparent legitimacy to the previous Government's Intellectual Property policies. It costs nearly £3/4 million p.a. to run. We recommend that it be dissolved or reconstituted to be properly independent, balanced, and include active independent creatives.

Based on the above we fear that the previous Government's Intellectual Property supertanker has not even changed direction, let alone been stopped, by the failure of Digital Economy Bill Clause 43, the change of Government, and its new policies. We wonder what the Intellectual Property Office are doing at the moment (apart from laughably running events advising on how to protect your intellectual property): given that the British Library is the IPO’s official library and that two IPO executives sit ex officio on SABIP’s Board, we cannot conceive that the IPO were unaware of the British Library’s potentially lawbreaking agreement with brightsolid. The IPO has a reputation for being antagonistic towards individually-owned copyright.

And finally...
The EU intends to introduce a Directive on orphan works in the Autumn. It’s going to be a busy Summer, stopping that supertanker and preventing it from fouling our creative ecosystem with its spilled oil.