10

Copyright, piracy and other legal issues

Introduction

The emergence of digital products has led to a growing challenge for publishers operating in the digital environment. One of the most fundamental aspects of publishing that has come under scrutiny during the development and expansion of the internet has been the issue of copyright. Copyright has existed for hundreds of years and, while it operates differently in different countries, the basic principle of creators owning the right to their creation has come to form the basis of much of the way publishing business is done across the world. Copyright has been regarded as a way for creators of content to gain recognition for their work (an ongoing right to be seen as the creator) as well as to benefit commercially from their creation if they wish. For many this right is seen as important in encouraging creativity to continue; if creators know their work is protected in some form or other, they will continue to create, so enriching the intellectual, cultural and economic strength of their society.

One of the guiding principles of the World Wide Web since its inception has been the ability of everyone to connect and share information. There is a belief in the fundamental democracy represented by the fact the internet can facilitate openness and allow for engagement without boundaries. With Web 2.0 we can engage more directly with others across social media, for instance, whether by becoming involved in movements, recommending products or creating content. The growth in ‘internet philosophy’ books is testament to the involved nature of the debate, particularly in relation to free content. These questions can touch on copyright: should information be free? If so, is copyright limiting this sense of freedom? If work can be published and distributed very quickly and cheaply, does copyright remain an old-fashioned way of controlling the spread of content – indeed, is it a form of censorship in itself?

Publishers, as one of the stakeholders in the construct of copyright, are facing a growing debate about the relevance of copyright in the digital age. Copyright in the print book was reasonably clear. The creation was contained in a physical product, which made it easy to manage. However, a digital product is a lot more difficult to control as it can be distributed so easily and quickly. Most would argue easy access is a good thing: society should encourage the rapid and collaborative spread of research or provide educational materials to countries that cannot afford them. But managing content carefully, protecting creators and their rights are still important, even where the intention is for their content to be distributed openly and freely. There are also issues, such as infringement and piracy, which were already important but have become more complex with the rise of digital publishing. So the areas of copyright and legality are coming increasingly under scrutiny.

Copyright

Some key tenets of copyright

One of the key principles of copyright is that it needs to be clear who owns what. Creators need to clearly state that their creation is theirs and assert that it is not by someone else. Once they have clearly stated this, they can license the right to produce and publish their content to others if they wish, or even assign the right of the material itself to someone else (for instance where work is created as part of a job for which the employee is paid).

Another aspect of copyright is that it safeguards the integrity of the content: it is as the creator wanted it and has not been manipulated, changed or adapted in any way. This can be a critical issue for certain types of content (such as scientific material) and ensures quality of provenance. This can be important for users of that content, particularly where copies carrying possibly critical mistakes may be circulating easily around the internet. It is also important for the makers of content, providing some level of protection that their work will be distributed in the state they wish.

Publishers carry an important responsibility on behalf of authors to ensure they protect the copyright with which they are entrusted. Publishers are therefore pivotal in helping authors gain what they want from their creation – protection for their content and their reputation, as well as the opportunity to gain commercially from the work. The opportunity for digital content to be endlessly duplicated and to circulate continuously around the internet makes this more of a challenge for publishers.

Problems with the basis of copyright in the digital environment

Some see problems with copyright when adapted for the digital environment. Commentators raise the following questions:

• Is copyright essentially a mechanism for print?
• When content is so easily available is copyright adaptable?
• Does the commercial nuance to copyright contradict the essentially ‘free’ nature of the internet?
• Does copyright lead to too much control?

In the first case some feel that, as it has grown out of the print industry, copyright is not flexible enough to adapt to technology of a very different nature. It worked when production was limited, by the nature of printing, and the development of content was scarce – authors needed to make a living and publishers supported them in that. The print product was finite and distributed in a specific way. The internet instead opens up new ways of creating, spreading and using content.

Today content is abundant and, with low barriers to entry for publishing, access to it is easy; key aspects of the publishing value chain have changed. Business models for publishing and ways of controlling content are very different on the internet. Consumers too have changed, as has the pattern of supply and demand, so copyright is not necessarily the right construct to operate in this environment.

A creator has a right to gain from their creation and copyright provides a framework for that. Creators have made some sort of investment in that product, whether actual financial investment or time, and for that they should be entitled to reward. To continue to encourage investment in creativity creators need to be sure they can potentially gain reward for their work. The fact that copyright is bound up in the commercial arena is one of the reasons some people have turned away from copyright. As an example, many feel that research material should be distributed freely and easily, particularly now that it is easy and cheap to do so via the internet. Sharing leads to greater efficiency and valuable information should not be controlled by gatekeepers such as publishers through the licences they purchase from copyright holders. So some commentators believe copyright may not be adaptable enough to enable free and flexible use of content.

Ultimately, copyright gives authors a positive right to exploit their work and a negative right to prevent others from doing so without their consent. To some this smacks of a sort of control over information that stands in opposition to an ethos of digital democracy. Large publishing companies can, in effect, censor the marketplace in how they control the information they have; they may price the information too high, for instance, for some people to access it. For some of the internet commentators, this is seen as a way of slowing down progress. This may be a rather extreme argument in the case for leaving copyright behind. However, in the age of the internet flexible systems to distribute intellectual property in a variety of ways are required, whether by using copyright or by developing alternative or supplementary systems.

Does copyright need fixing?

There are those who believe that copyright is the way forward but it needs to be rethought radically. Some experts, such as Patry, the Senior Copyright Counsel at Google Inc., present the case for ‘fixing’ copyright to fit the new technological age. In their view, the sorts of changes to copyright that are needed are as follows:

• it needs a change of emphasis away from ownership to focus on access
• it needs the ability to encompass a much larger base of authors – as it were, the mass producers of a self-publishing age
• it needs to have broader definitions of aspects like ‘fair use’ to allow for freer distribution of material
• it needs to exploit opportunities for lots more smaller transactions rather than fewer larger ones

Points such as these are each debatable, and many argue that the current system is flexible enough and does not need to be rethought as drastically. With the right mechanisms in place, copyright can be an effective system for the internet age. For many authors the financial prospects for their work are important and copyright currently still appears to be the best way to exploit their work; the digital environment does not change the basic rights that authors have to own their content, and as such copyright is still an effective way to manage this. Nor does copyright prevent the free distribution of material, while by reinforcing the creator’s rights of ownership it can still be valuable.

Copyright experts and organisations have been actively involved in developing effective ways to organise digital copyright. Indeed technology itself can be a friend to copyright, as we will see on p. 151, enabling it to be managed efficiently across territories, and helping to identify copyright holders accurately. Using technology to manage copyright is compatible with a fast-moving digital age. Those wanting to use copyright material can quickly and effectively get the required permission for that material at the point they need to use it, and pay for it seamlessly where payment is required. Indeed copyright may well, in this way, become cheaper to administer and cheaper to buy for users (micropayments are easier to manage digitally, for instance), while still satisfying the very relevant needs of authors.

Copyleft

Copyleft is viewed by some as an alternative approach to copyright. It is not entirely anti-copyright, in that it is still a form of licensing, but it is designed to allow the free distribution of material. It originated as a way to distribute software with the development, in 1989, of the GNU General Public Licence. It allows for people to use and adapt material as they want and for versions of the material to continue to be free even if they have been changed and adapted by other parties.

It is different from releasing the material entirely free into the public domain in that some terms remain; these focus on use, so, for instance, in terms of software it means that the source files must be available. It is regarded as a reciprocal licence as any adaptations have to carry the same terms (unlike a public domain product) and it is self-perpetuating as it continues down the line even after adaptations have been made.

Copyleft does have to be formally assigned to the material and there are layers of copyleft that can be applied, determining the sort of use that can be made of the material. Ultimately the aim is to create a way to distribute material for free and keep that freedom continuous, so discouraging users who might seek to develop proprietary versions for commercial use. That way companies cannot develop a monopoly over certain software solutions (for instance) and control marketplaces.

Open content and Creative Commons copyright licences

Open content is a term that is often applied to content that is available for reuse and redistribution, royalty-free. It was originally linked to a specific licence but is now more loosely applied, particularly in the context of open access material, where creators want to ensure content can be used in a non-restrictive way. In this way, open content is content which the user has the right to make more kinds of uses of than are normally permitted under the law, all at no cost to the user. Essentially it allows for the easy availability, copying and using of content. Forms of open licence can offer standardised ways to manage the copyright for information that is broadly available for use for free, but may still require some level of protection (e.g. from commercial exploitation for non-copyright holders).

Creative Commons copyright licences are an example of this. They were developed by Lawrence Lessig, Hal Abelson and Eric Eldrel, advocates of the free internet. These licences are managed from a base in California as a non-profit organisation; they allow authors of content to assign which rights they still want some control over and which rights they are happy to waive.

While one of the main aims of Creative Commons copyright licences is to ensure material can be distributed freely across the internet, another important aspect is the fact that many individuals can use Creative Commons licences easily; they make things straightforward for individuals to understand and apply. In the environment of digital sharing and social media this has an advantage; so, for instance, users of Flickr, the photo sharing website, often adopt a Creative Commons approach as they load their photos to determine their use. Individuals can easily take control of their intellectual property. The licences do not necessarily have to apply only to the digital environment but it is clear that this works well in the digital arena, where large quantities of information can be shared and distributed instantly and freely. Creative Commons creates a framework of flexible licences that can be adopted within the basic structure of copyright.

Licences are built up in three layers:

• a legal layer (legal code)
• a layer written in day-to-day language (the commons deed)
• a machine-readable layer, a standardised way to describe licences for software to read

There are six main types of Creative Commons licence that allow for different levels of control. At the heart of these six is the principle that the creation of the material must always be attributed to its creator so the author will get credit for their creativity and originality. At the basic level it can be simply assignment of attribution (with the acronym of CC BY), allowing the material to be adapted, changed and used, even commercially as long as credit is given to the original creator. Different licences allow for or exclude different activities, covering also the further licensing of material that has been used or adapted going forward, whether for commercial or non-commercial activities. They also provide tools to place works in the public domain, including the Public Domain Mark and CC0 tool, which allows creators to waive all rights (even those of attribution).

Critics see problems. There is no real control over the licence so it can easily be infringed. It is also rather inflexible in that it applies to a wide variety of media and products which can be a bit too generic. It can be difficult to protect moral rights (which is the basis of the attribution) really effectively, and if a derivative work that you allowed under your Creative Commons licence becomes subject to legal action, then you can be vulnerable. There are also issues around duration and compatibility with other systems which can affect websites carrying both standard copyright and Creative Commons material, for instance. However, there are examples of court cases where the strength of Creative Commons licences has been successfully tested.

As a way to empower individuals with the ability to control the use and dissemination of their work, particularly in open access environments, these licences can represent threats to publishers’ own approaches to copyright and publishers need to engage with these systems in order to dovetail in with the variety of publishing mediums researchers may use in the future. There are examples of this; for instance, Bloomsbury Academic used Creative Commons licences for some of its titles in digital format.

Copyright infringement

In a digital age, copyright can prove difficult to protect from infringement. When dealing with print-only infringements it is easier to withdraw and destroy the relevant publications. The ease and speed with which content can be distributed means that even with an injunction it can be difficult to prevent the distribution of the material and more effort is required to track the copies across the internet in order to take them down.

Individual cases of copyright infringement can be and are dealt with where necessary in the digital environment, but there is one particular example in the last decade of a much larger-scale infringement which highlights some of the problems about the way copyright is sometimes viewed in a digital environment as the case study explores.

Digital rights management to prevent infringement

DRM can be an effective way to manage copyright and protect its use. It provides a reasonably robust way to ensure content is used in the way intended by copyright holders. The technology of DRM is reasonably cheap and straightforward, and it is effective at hiding complexity from users. It can be costly depending on the level of security required, while managing the exceptions that can exist within copyright regulations makes it complex. Piracy is another problem that copyright holders face, and to support the use of DRM in protecting copyright the US passed, as early as 1998, the Digital Millennium Copyright Act (DMCA) to impose criminal penalties on those who make available technologies designed primarily to overcome DRM protection.

However, there are aspects of DRM that are controversial. It can only provide a certain amount of protection against those determined to infringe copyright and there is no compelling evidence yet to support the notion that it prevents copyright theft in any major way. Instead it can be seen as hindering legitimate users as they find themselves prevented from using the content they have bought and believe they own in certain ways (e.g. for lending or shifting format); they may also find they have problems accessing their purchases if the DRM changes or is discontinued (for example if they cancel a subscription they may lose access to the archive of the editions they did pay for). Problems like these can appear to penalise legitimate purchase. There are several organisations that oppose DRM, citing the restrictions that it imposes on users and that it can represent a potentially dangerous level of control. Again, the issues of freedom and democracy on the internet surface.

Piracy

Print vs digial piracy

One of the important considerations for publishers is that they are not only protecting their own licence to publish but also protecting the author. Publishers undertake within the publishing contract to protect the copyright of authors, and it is important they continue to combat copyright infringement and to demonstrate clearly that they are doing this. For an increasing number of authors it is a key aspect of what a publisher can offer them. Indeed self-published authors, if they become successful, find that their work may readily be pirated; they see it as one of the benefits of working with publishers that they have the resources and knowledge to combat piracy.

Pirated print copies have always existed within the marketplace and publishers have always been vigilant in protecting copyright. In general the problem was limited to particular countries and the money that those markets represented did not cause too much worry for publishers. Ripped-off textbooks in developing economies where full priced books were difficult to afford did not impact the market in a major way. In countries where copyright may be regulated in a more lax way there was still a limit in terms of distribution and quantity as well as quality of pirated books. For the customer in well-developed markets, both the price and accessibility of the print version, when compared to the effort of finding and buying the pirate version, meant that in general customers purchased the legitimate product.

But digital books provide an easy way to distribute globally an exact copy of the actual book in unlimited quantity. In addition, there is a particular aspect of the internet which has nuanced the issue of piracy. File sharing, developing in the late 1990s particularly in the sharing of personal music libraries, has gained a certain credibility, tied in with the expectation that information should be, to some extent, free and the web should encourage sharing. Even if the public are more aware now of situations where they may be breaching copyright, there is still a feeling that if you do have to pay for content it should be reasonably cheap.

The changing nature of customers’ relationship to their content and their sense of value in it is one of the aspects underpinning the issue of piracy. Where products are expensive (for instance educational textbooks in the US) and out of the range of some customers, they may well resort to piracy, since it is so much easier, in order to gain some sort of access to content they cannot otherwise afford.

Digital piracy has other attractions. It is much less easy to get caught compared to having to manage a physical product. Pirates can operate from a number of countries and shut down and start up new sites easily. They can make it very difficult for people to track them down as they may service customers in one country from a server in another country, with payment processing operating in a third. This is one of the reasons that sophisticated pirates may well be involved in wider criminal activities such as money laundering operations. Estimates of the money involved vary and they can be difficult to prove: some reports say that over 20 per cent of all ebooks downloaded to e-readers are pirated; one recent piece of research looked at the top ninety books on Amazon to find that around three million people search the internet daily for these titles, which could amount to around $3 billion annually: piracy happens at all price levels for all types of books.

Who is involved?

At one end of the scale, pirates will simply be individuals overcoming DRM to upload a textbook they happen to have bought to distribute for free over the internet. However, at the other, file sharing sites may offer well-developed subscription services for books that are carefully catalogued in order to pick up any slight variation in the way a title may be typed in; they can even carry advertising.

Meanwhile, the customers of pirated copies may be buying them in order to access content they cannot otherwise reach, maybe due to territoriality issues, or because they find the DRM mechanisms frustrating and off-putting. For others it is the ability to get things ahead of others, or to get them for free. There are examples too of users being thrilled by joining a pirate community and engaging in it in an almost competitive way. Meanwhile, some people may be buying a book assuming they are using a legitimate source. A customer’s expectation that digital content is likely to be cheap adds to that problem.

How to combat piracy

The proliferation of sites and the cunning of the operators make it difficult for publishers to keep up with the pirates. However, there are measures they can take in tracking and taking down sites where pirated copies are available. Authors and publishers may spot that a book is available and make a note of the source. They can then issue the internet service provider (ISP) with a notice to say that it is hosting a site carrying illegal content. The ISP is obliged to take down the site once notified. The process can be quite involved, from identifying the hosting service and the legal jurisdiction in which it operates, to issuing and monitoring the appropriate take-down notices.

In the UK a copyright infringement portal has been set up by the Publishers Association to facilitate the formal approach to serving infringement notices. This portal has been responsible for taking down over 216,000 web pages in total and the numbers continue to grow. While this does not necessarily stop the sites popping up again in some other guise, it does cause disruption to the pirates’ activity and it makes clearer to the more casual customer that the issue of copyright protection is to be taken seriously. Companies also exist like Attributor, which works with publishers to crawl cyberlockers and peer-to-peer sites to look for infringed copies. For more critical cases there may be months of building a criminal case against key perpetrators.

However, there are other things the industry is taking into account when considering how to combat piracy. One of the key ones, certainly to prevent the casual user from obtaining pirated copies, is to make the products available and attractive in their legitimate guise. This may be by

• ensuring access is easy across marketplaces and territories
• ensuring access is easy across platforms
• avoiding the use of heavy-handed DRM
• pricing effectively so that customers do not mind purchasing a legitimate copy

In all these the publisher is trying to make it easy for a customer to take the legal route.

• There is also an element of educating consumers. They need to be aware that:
• the author, the individual, is being exploited – they are losing out (some consumers assume that it is only the interests of the ‘wealthy publishers’ they are affecting)
• some of those involved are serious, even dangerous, criminals
• there is an issue of consumer protection in the distribution of pirated copies

For some, the piracy of ebooks will never be as big a problem for the industry as it is for music, film and gaming industries, the nature of the product being a significant issue. Others also argue that piracy ultimately does not affect the legitimate users market. This seems unlikely in certain markets, such as the educational publishing environment; the more pirated copies of key texts are available, the greater the cost the legitimate products have to bear as they are sold in lower numbers. In the trade arena, however, it is widely suggested that piracy does not impact on the market unduly and may in fact encourage more sales of legitimate copies as word of mouth about good books spreads. Nevertheless, as ebook markets expand worldwide, and piracy continues to be reasonably easy, it is likely that its impact will increase considerably in the longer term.

Digital legislation

UK legislation

Activity within the digital environment affects many different aspects of society and the economy. So legislation is continuously being developed to cope with new challenges that affect anything from data protection to e-commerce. Various issues arise in relation to publishing and different pieces of legislation affect different aspects of publishing activity. For example, the 2000 e-commerce directive established that ISPs have a responsibility to stop illegal activity on their sites if it is brought to their attention, but individual countries comply with this directive differently, which can cause problems. For instance, obscenity laws differ between countries. What about jurisdiction issues when the server is in one country, the e-commerce activity in another and the customer in a third? When dealing with print products there is the expectation that one cannot control the distribution of second-hand copies; how does this adapt to the internet? Issues such as these need addressing in legislation.

Efforts have been made to move towards harmonisation across certain regions. One example is VAT in Europe: loopholes in VAT on the sale of products from different countries will be closed. Currently ebooks are subject to VAT but they can adopt the VAT rate of the country from which the retailer operates. Amazon operates via Luxembourg so can charge a lower VAT rate than in the UK, which means it can undercut the prices of UK-based firms. In the future the VAT rate where the customer is purchasing is the rate that will have to be applied, creating a fairer system across Europe. However, some countries charge lower rates of VAT on ebooks (just as the UK charges no VAT at all on print books), so harmonisation is not always possible. Here, as with the principles of copyright, the debates continue and legislation attempts to keep the laws on digital products relevant and enforceable.

The Digital Economy Act 2010 is one of the recent pieces of legislation in the UK intended to regulate digital media. One critical aspect of it is that it has focused on developing a system for tracking down and suing persistent copyright infringers. There are perceived weaknesses in the act, such as:

• who bears the cost of following these procedures
• how effective an appeals process might be
• whether innovation and creativity are genuinely supported or instead stifled

In 2011 the Hargreaves Report on Intellectual Property and Growth explored the relationship between copyright and the economy and competitiveness, looking at how far enforcement can impact copyright infringement and whether this has a detrimental effect on competitiveness. It set out a series of recommendations that included issues such as making it easier for organisations and individuals to manage licences and rights in an open and transparent way with a digital copyright exchange. Growing a legitimate market for rights trading is an important way to provide legal opportunities for obtaining information, discouraging illegal routes. Other recommendations included:

• provisions on orphan works
• specific suggestions with regard to particular types of intellectual property
• establishing international priorities
• emphasising the importance of education around copyright as a measure to protect from infringement

The Digital Copyright Exchange Feasibility Study was set up by the Intellectual Property Office in the UK, following the Hargreaves Report. It published two documents looking at the issue of managing copyright. The first report (Rights and Wrongs: Is Copyright Licensing Fit for Purpose for the Digital Age?) identified seven reasons why current licensing systems were not fit for purpose:

1. They were expensive (this refers to the process itself, not the prices being charged for the rights).
2. They were difficult to use
3. They were difficult to access
4. They were insufficiently transparent
5. They were siloed within individual media types (at a time when more and more digital content is mixed media and cross-media)
6. They were the victim of a misalignment of incentives between creators, rights owners, rights managers, rights users and end users
7. They were insufficiently international in focus and scope

The report went on to recommend that copyright licensing needed to be implemented across sectors and territories, and to do that the main issues that need resolving are:

• complexity of processes
• complexity of organisations
• repertoire imbalance between the digital and physical worlds (you cannot always find the things you want in a digital environment using legal methods, while a physical copy may well be easily available)
• the difficulty of finding out who owns what rights to what content in what country
• the difficulty of accurately paying to creators the fair share of revenues created by their copyright content
• the labour-intensiveness, expense and difficulty of licensing copyright for the high-volume, low-value transactions that characterise the digital world
• the lack of common standards and of a common language for sharing rights information across creative sectors and across national borders

This forms a useful checklist of the activity that has already started in order to harmonise licensing systems so that they can cope with future developments.

The second and final report from a the Digital Copyright Exchange Feasibility Study proposed an industry-led and industry-funded copyright hub, building on the work already underway to organise an efficient and responsive copyright licensing system. The hub would serve a number of functions, including:

• information and copyright education
• registries of rights
• a marketplace for rights-licensing solutions
• help with the orphan works problem

The report outlines the problems in more detail and looks at individual solutions for each point, as well as exploring ways the hub would improve each area and how it might be constructed.

Some US approaches

The emphasis of the Hargreaves Report was to draw back from enforcement as the main way of protecting copyright, but in the US stricter methods have been mooted to try and control piracy. Other content holders from the film and (to a lesser extent) music industries are driving this. While US law operates like that of the UK, where an ISP, once notified, must take down a site, there is a drive in the US to try and control access to websites outside the US that carry pirated content. One example was SOPA (Stop Online Piracy Act), proposed in 2012 to the House of Representatives Judiciary Committee to target these websites. This proposed law would have required American sites to take down links to identified sites outside the US. The payment processors too would be required to stop doing business with these non-US websites and ISPs would be required to block traffic to them using DNS filtering; particularly worrying at the time were the terms suggested, that this would need to be done within five days of notification. For many, including the founder of Google, this verged on censorship and it was regarded as a heavy-handed approach by the US to gain some sort of control over the world internet in relation to preventing piracy. For others it was simply too big in scope to be manageable and meant that even very well-established and clearly legitimate social media sites, where some sort of accidentally pirated content might be identified (e.g. within someone’s Facebook page), could be vulnerable. This legislation faced challenges, and the political arena, where extensive lobbying, supported by considerable funding from key stakeholders, was very influential. In the end it was not pursued. Another example was PIPA (Protect IP), a milder version of SOPA; some interesting offshoots have emerged from that, such as Darrell Issa’s OPEN idea, which posted up anti-piracy legislative proposals for the public to view and edit, so creating a more democratic approach to consultation and the creation of legislation.

Legislation and reviews will continue in these areas. They take the publisher’s activity to the broader arena of creativity and the economy. Publishers have to monitor these debates constantly going forward in order to be ready with a response.

Harmonisation of rights systems and technical solutions

For all these topics we have looked at the issue of harmonisation surfaces. As the internet operates in a global environment, incompatibilities and conflicts between the laws and regulations of different countries or different standards cause complexity. The more these issues can be harmonised, the easier managing copyright and legal publishing issues will become, so reinforcing the effectiveness of copyright.

There are many movements and institutions looking at ways to standardise activity across borders and provide consistent information across technologies. As content is manipulated in more and more complex ways (for instance requiring micropayments for the use of small chunks of information), so the development of systems to cope with these is also critical. In addition, the sheer amount of content, since out-of-print content can become accessible again, requires some means of easy management across the wide variety of uses the internet has opened up. Centralised services that ease the use of licences, offer due diligence and help the user work within legal bounds will make it less likely that they will adopt illegal methods.

Examples of the sorts of projects that are being developed in publishing include:

• initiatives looking at providing better rights information for all stakeholders in the chain (from creators to users)
• automated or semi-automated platforms for rights trading where, for instance, gaining permission to use a diagram globally in an educational text for a negligible ‘educational’ fee could be much easier to manage, without needing costly human processing
• projects looking at standards for coding the information on, for example, licences, in databases compatible with others

Just a sample of such projects include:

• ONIX-PL, a standard for communicating publishers’ licences to libraries
• Global Repertoire Database for music
• PLUS coalition to manage rights of photos
• ODRL open digital rights language for machine readable permissions agreements

There are projects bringing different registries together, such as ARROW, which is a tool to facilitate rights information management in any digitisation project involving text and/or images. It is particularly useful in relation to orphan works but it covers identifying rights holders on all works in or out of copyright and, if it is still commercially available, linking different registries together.

Another initiative is the Linked Content Coalition. This is a global content industry project that was approved by the EU in 2010; it aims to improve the management and communication of online copyright. Its remit is to develop a cross-media project focusing on working with various existing standards. It aims to create a framework for standards-based communications infrastructure so that businesses and individuals can manage and communicate their rights more effectively online.

Such projects need to be able to work across a range of business models (e.g. charging or free) and content types (visual or written), to be compatible across a variety of infrastructures and to ensure the barriers to entry are low enough for all stakeholders (usually down to the level of the individual who might be using one of these systems). Harmonisation is just one advantage. Building critical mass is also an important aspect to this. A collective licensing agency, for instance, may have more clout to act on behalf of all rights holders where problems arise. It is important to claim a right for all sorts of content that may have appeared lost or open to exploitation. For orphan works, for instance, initiatives like these represent a solution: they may have been seen as untouchable in the past, but now they can potentially be used and managed effectively, retaining money for copyright holders should they eventually emerge.

Other aspects of legal implications of the digital environment

While copyright is a very current debate, it is important to be aware that there are other issues with regard to the law that arise with the growth of the internet and can pose challenges to publishers. Issues of plagiarism and privacy take on new dimensions in a digital environment; individuals can easily post libellous material without due care or distribute personal information widely via social media. The explosion of information on the internet, the ability for anyone anywhere to publish material easily and the difficulty in regulating this has changed the environment for these aspects of the law. There is not the space to explore them here; for detail on these topics, see the references below. However, it is worth noting a couple of examples of where a publisher may need to review its position.

The first is the author contract, the basic outline of which remained broadly unchanged for many years. It contains various clauses that need consideration in light of digital products. We have seen that ebook definitions were needed within contracts with regard to volume rights, but there are also other areas that require clear distinction: for instance, an ebook is not strictly out of print so termination clauses that linked to books being out of print need to be adjusted. More care needs to be taken to cover aspects of ownership when books are being downloaded or transferred to be held in other databases or digital warehouses.

Another area for publishers to consider is developing new protocols to deal with problems that might arise. Information is much more freely distributed on the internet and can continue to be distributed ad infinitum once it is out there: where there is a case of defamation publishers need to develop a way of dealing with this; with a print copy it was easy to recall stock and limit further dissemination by pulping and reprinting a corrected version. How can this be managed in a digital environment?

Conclusion

The debate around copyright in the internet age continues and goes much wider than book publishing. Combating copyright infringement will remain a priority. However, the efforts made to ensure copyright is robust, together with developments around harmonisation and technical solutions to copyright management, should ensure that copyright remains one of the key frameworks within which publishers operate in the digital age. In this, as in other legal issues, publishers need to be leading the debates.

Further reading and resources

Books

Darnton, Robert. The Case for Books. Public Affairs, 2009. This contains two useful articles on the early stages of the Google settlement.

Fenwick, Trevor and Locks, Ian. Copyright in the Digital Age. Wildy, Simmonds and Hill, 2010.

Jones, Hugh and Benson, Christopher. Publishing Law. Routledge, 2011.

Lessig, Lawrence. Free Culture: The Nature and Future of Creativity. 2005; PDF available at www.free-culture.cc/freeculture.pdf under a Creative Commons licence. Owen, Lynette (ed.). Clarke’s Publishing Agreements, 8th edition. Bloomsbury Professional, 2010.

Patry, William. How to Fix Copyright. Oxford University Press, 2011.

Websites

www.arrow-net.eu – for the ARROW project

www.attributor.com – digital piracy solution provider with information on digital piracy trends

www.copyrightinfringementportal.com/index.php – copyright infringement portal run by the Publishers Association

www.creativecommons.org – the site for Creative Commons licences

www.editeur.org – EDItEUR is the international group coordinating development of the standards infrastructure for electronic commerce in the book, ebook and serials sectors

www.editeur.org/8/ONIX – information about ONIX

www.ipo.gov.uk – for the Hargreaves Report and the Digital Copyright Exchange

Feasibility Study

www.linkedcontentcoalition.org – the Linked Content Coalition

www.publishers.org.uk/index.php?option=com_content&view=category&layout=blog&id=359&Itemid=1346 – copyright section on the Publishers Association web page

www.useplus.com/index.asp – Plus coalition

www.w3.org/community/odrl – ODRL

Questions to consider

1. Can you ever own an ebook in the same way as you may have owned a print book?
2. What are the benefits of maintaining robust copyright systems?
3. Do you think piracy has a significant effect on the market?
4. Many argue that making content easily accessible by legitimate means is an important part of preventing piracy, but how much will this market have to do to be attractive enough?
5. How far can technology provide the solution to copyright licensing?