Introduction: the history and politics of copyright

Even before the modern law of copyright, in 1710, laws were promulgated that reflected the technology of the day. In France, the introduction of the printing press led to the first privileges to printers in 1507 (authors were not the recipients). The world’s first academic journals, The Philosophical Transactions of the Royal Society in England and the Journal des Sçavans in France appeared in 1665 (the latter pipped the former to the post by two months, although it was suspended during the French Revolution). By then, in England and Venice at least, the printer had to have the author’s consent (the requirement was introduced in England in 1642).

Copyright is merely a legal construct, and in principle it is not for or against innovation or protection of creator’s rights. The debates have been well described by Gillian Davies in Copyright and the Public Interest (2002).² In comparing how copyright law has developed in the UK, France, Germany and the US, Davies demonstrates the considerable degree of consensus in the underlying arguments for copyright protection, but also demonstrates how developments in technology have continually led to changes in copyright law, a trend exacerbated by the Internet, but which also serves to show that for the future of copyright we have to watch the future of technology.

Other writers have focused on the conflicts that have been sparked by the rival possibilities of increased protection and increased ease of copying. George Lakoff has popularized the understanding of metaphor as central to politics,³ and in the copyright field the metaphor of ‘copyright wars’ has been popular even before the Digital Millennium Copyright Act in the US (passed in 1998) and the ensuing litigation between record labels and consumers. Jack Valenti, Head of the Motion Picture Association of America, was a master of metaphor in raising the bogey of piracy as a reason Congress should ramp up copyright protection.⁴ In the debates about the future of copyright, there have been many arguments about the cost of infringement, the cost to the economy of not permitting more flexible use of content, and so forth. In sharp distinction to the motion picture or music industries, in journal publishing the players can often occupy more than one role, and so a simple dichotomy of conflict does not do justice to the complexity of the relationships. Academic authors, their institutions, research funders, publishers and the government are at the same time creators and users of copyright.

The technological possibilities offered by the digital age, and discussed in other chapters in this volume, have given rise to heated debate on the role of copyright. In the academic legal world, well-known legal scholars have given us a phalanx of popular books arguing that in the future copyright must be adjusted to the needs of the consumer: Professor Lawrence Lessig (The Future of Ideas [2001], Free Culture [2004], Remix [2008]), Professor James Boyle of Duke University (The Public Domain [2008]) and William Patry, now Senior Copyright Counsel at Google but a prolific academic author on copyright (Moral Panics and the Copyright Wars [2009], How to fix Copyright [2011]). Academic publishers have responded robustly. Richard Mollet, Chief Executive of the UK Publishers’ Association, attacked the proponents of weaker copyright protection who have ‘the temerity to appropriate the language of freedom of expression as a cloak for their tawdry theft’.⁵

Governments and parliamentarians have weighed in with lengthy examinations of copyright law. In the UK alone there has been a 2004 Select Committee on Science and Technology review of academic publishing, and two reviews commissioned by government: the 2006 Gowers Review and the 2011 Hargreaves Report, ‘Digital opportunities’,⁶ considering copyright in the digital environment. Hargreaves rhetorically asked: ‘Could it be that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is yes.’

In general, these ideas have been resisted by the larger academic publishers. The quantification of losses due to infringement has been hotly contested on both sides of the debate. A fair prediction is that proponents of the status quo or enhanced copyright protection will argue that the creative industries are being harmed, and proponents of reduced copyright protection will argue that huge economic opportunities are being missed.

Why it takes a long time to change copyright law

Copyright law is based on legislative solutions and international treaties. That is a main reason why change is slow, and the future challenges legislators to react more swiftly to changing copyright practices. In the twentieth century major copyright change came after lengthy consultations, with significant UK Copyright Acts passed in 1911, 1956 and 1988. But the pace of change has picked up since 1988, and although in the UK the 1988 Copyright, Designs and Patents Act remains the foundation of the legislation, it has been amended frequently to take into account changes such as the European database right, the European Copyright Directive, the extension of the duration of copyright, the WIPO Internet treaties, increased performers’ rights, and the list continues. In the US, the biggest changes were brought when the US finally joined the international Berne Convention on copyright, and later with the Digital Millennium Copyright Act.

But the international nature of digital copyright means that increasingly the rules have to be agreed at an international level, and that inevitably means that the process takes longer, and that it is hard to make changes quickly to reflect technical change. Within Europe, the fact that to a large extent copyright law is harmonized by the 2001 Copyright Directive means that any change has to be agreed by a diplomatic process that now involves 28 different countries. Changes to the fair dealing legislation are frequently discussed, but change is hampered by the fact that the list of fair dealing exemptions is a closed list, with 21 permitted exceptions to copyright set out in the Copyright Directive. The UK cannot amend its copyright legislation to add to the list without first agreeing a change through the 28-nation European Union. An example of the problem is that the UK Copyright Act permitted the copying of abstracts of scientific and technical journals (Section 60 Copyright, Designs and Patent Act 1988), but the European Copyright Directive does not recognize this as a permitted use, with the result that while analogue copying of abstracts is still permitted under the Directive’s so-called ‘grandmother’ clause (which states that use permitted before the Directive may continue in analogue form), digital copying of abstracts is now anomalous and at risk of challenge in the European courts. Any clarification of the right of abstract publishers to reproduce digital copies of abstracts is now dependent on the European diplomatic process.

European copyright law also brings together the common law tradition which has long governed UK and Irish publishing contracts, and the civil law tradition based on the Code Napoleon which prevails in continental Europe. One of the main tensions here is that the civil law tradition tends to be more favourable to authors (for example the French droit d’auteur puts the author at the heart of publishing, whereas the English term copyright implies the economic right to make copies, which often vests in the publisher). So when the Copyright Directive sought to harmonize European copyright law, there was at best a partial harmonization, with different rules in force regarding the transfer of copyright, and different scope for countries to opt in to different types of fair dealing exceptions to copyright. Thus, for example, educational privileges differ from country to country.

Likewise, at the wider international level copyright law is now addressed by the World Trade Organization in the TRIPS Treaty (Trade-Related Aspects of Intellectual Property Rights), and is subject to the all-or-nothing approach to treaty reform that has resulted in a deadlocked Doha Round of trade talks. Copyright becomes dependent on agreement on trade concessions and agricultural reform. A similar difficulty in getting unanimity at the Berne Convention level led to an entirely separate treaty framework in the UN Copyright Conventions of 1996. But it is hard to see how a new body can be set up every time an existing treaty body becomes deadlocked.

There are some exceptions to this general view. Some areas of copyright law are not subject to the international regime, or are so only in part. The UK passed the Copyright (Visually Impaired Persons) Act in 2002, and it has taken years for the WIPO Standing Committee on Copyright and Related Rights (SCCR) to address the issue. The SCCR considers draft proposals on copyright harmonization, and its July 2012 session was still working on a draft treaty on exceptions and limitations for persons with disabilities proposed far earlier. Even more significantly, criminal law has proved far more resistant to harmonization, and so criminalization of copyright infringement remains a matter for national legislatures. There are, however, pressures to harmonize criminal law, in particular through the 2011 Anti-Counterfeiting Trade Agreement, a multinational treaty that has been particularly controversial due to the secrecy surrounding its negotiation.

European harmonization is also not complete, as the Directive permits a ‘grandmothering’ of exceptions permitted before it came into force, such as the French law permitting a 30-year extension of copyright to some authors who have died for their country (‘mort pour la France’). Authors whose works are thus extended include prominent writers who died during the Second World War and whose works would otherwise have recently expired or be about to expire, including Irène Némirovsky and Antoine de Saint-Exupéry.⁷

What are the other influences on the future of copyright?

Copyright law can be a blunt instrument for resolving the balance of interests in publishing. Learning from other fields of law shows us that law and legislation are part of a wider continuum, in which reform, legislation, communication, litigation and enforcement all play their part. But in the case of academic publishing, copyright may not be the key factor. Increasingly, copyright can be seen as one point in the triangle of laws, where the other two points are contract and international trade law.

Other protection for publishers is provided through the typographical right, the database right, trademark law and the law of passing off or unfair competition. These rights (with the exception of the typographical right) were not developed primarily for the benefit of publishers, but have been successfully adopted and used by publishers. Regulatory issues also have an important bearing in subject-specific areas, such as the publication of clinical trial results and restrictions on the reuse of clinical data through data exclusivity.

Authors’ rights may also be protected by neighbouring or moral rights. Since 1928 the Berne Convention⁸ recognizes both the author’s right to be identified as author (the attribution right) and the author’s right not to have the work subject to derogatory treatment (the integrity right). However, the practical outworking of these rights varies enormously from country to country, and indeed some countries also recognize other rights. In the UK and in Canada the moral rights can legally be waived, and often this is the case in publishing agreements. By contrast, in France and in many other continental European jurisdictions the rights cannot be waived, and publishers can frequently be embroiled in litigation. A celebrated French case was brought by one of Victor Hugo’s descendants to challenge the publication of a sequel to Les Misérables. The Cour de Cassation upheld the principle that there is no time limit on a claim for moral rights (Victor Hugo died in 1885), although on the facts the court held that the sequel would not infringe Victor Hugo’s moral right of integrity. For a discussion of these and many other cases on moral rights in France, Germany, the UK, Canada, the US (where the moral rights are far weaker), Russia and India, see Mira T. Sundara Rajan’s Moral Rights, Principles, Practice and New Technology.⁹

Territorial rights in the Internet age

Copyright differs from country to country, and publishers are able to grant licences on a territorial basis and so divide up their markets. However, territorial rights have long been subject to the competing tension of free trade rules. The simplest example is that if a publisher grants different exclusive licences for the different territories of the European Economic Area (the European Union plus Norway and Liechtenstein), neither the publisher nor the exclusive licensee can prevent physical goods legitimately licensed in one state within the Area from being imported to the others (‘parallel imports’), as otherwise this would contradict the rules on free movement of goods.

What will be the key influences on the future of copyright?

If we have to hazard a guess, it is, first, that the future of copyright will not be in the hands of the current protagonists. While Hollywood and the music industry will continue to represent their interests strongly and clearly, the political balance of power may shift to new industries. The balance sheets of the new portals, search engine and social network providers may sway votes in Congress.

Second, much of the future of copyright will depend on the BRIC countries (Brazil, Russia, India and China). Until now, international copyright standards have been raised along with other intellectual property rights by the pressure of the US Trade Representative. Increasingly, for example, Brazil, India and China will call the tunes. It is too early to say how the Chinese in particular will deploy their power. It may be that it will be used to affirm the international status quo. After all, China joined WIPO in 1980, and the Copyright Law of the PRC dates from 1990. In a recent article in Learned Publishing, Li Pengyi (President of the China Education Publishing & Media Group) identified three waves of Chinese publishing.¹⁰ The first is an increase in copyright trading/co-publishing (perhaps 90 per cent of the market). The second is establishing publishing entities outside PRC (a few are starting to do this, for example Science Press of CSP, China Publishing Go, Xinhua). The third is investing Chinese capital into foreign publishers (for example, People’s Medical Publishing House bought Canada’s BC Decker). The second and third waves are currently very small, because the domestic market is so large, and there are numerous challenges in going outside China. However, Li Pengyi’s prognosis is that the third wave will grow very fast. As and when China becomes a significant exporter of copyright works, it is logical to assume that China will be more interested in enforcing its rights. Conversely, it may decide that its national interests are best served by a more restrictive protection for copyright, and a greater flexibility for users.

Third, three groups have the potential to change the impact of copyright for us all: legislators, the Executive, and the courts. Legislators may continue to recognize the 300-year-old concept of copyright, but may shift its locus through the narrowing of its application. One way this may come about is by an extension of fair dealing/fair use. In 2012, the UK Government was proposing to speed up changes to the law by giving the relevant government minister the power to make new regulations to add or remove exceptions to copyright by secondary legislation, without a full Act of Parliament.¹¹

The Executive may also change by using its power as funder and consumer of copyright. Professor Dame Janet Finch’s report in June 2012¹² suggested that the UK could adopt an open access publishing model, by the UK making taxpayer funded research available free of charge, providing for the costs through public funding. The prospect of a gold open access model to be adopted (with article processing charges paid up front and not by the reader) was broadly welcomed by UK publishers.¹³

As well as legislators, the courts play a central role. In the US, the Supreme Court will continue to surprise us, as will the European Court of Justice in Europe. The US Supreme Court has repeatedly shown its power to change the game. Most recently, its decision of January 2012 in Golan v. Holder, the Peter and the Wolf case,¹⁴ had the effect of increasing the scope of copyright protection, by confirming that it applied to foreign works previously in the public domain, by upholding the constitutionality of the Uruguay Round Agreements Act 1994. For an overview of recent activism by the courts in the copyright world, see Simon Stokes’ Digital Copyright: Law and Practice.¹⁵

The future of copyright may be hard to predict, but the changes for the academic journal will continue to test the ability of our legislators, governments and the courts to hold in balance the competing tensions that Lord Macaulay highlighted more than 170 years ago. The pace of change may have accelerated, but the need for sound public policy debate will not change.