net.wars: A question of balance

by Wendy M Grossman | posted on 14 April 2006

The good news is that the UK government has undertaken a review of copyright law. "While it has been suggested that the present UK system strikes broadly the right balance between consumers and rights-holders, it also appears that there are a variety of practical issues with the existing framework," runs the introduction to the consultation document. You have until next Friday, April 21, to submit comments. Go.

Wendy M Grossman

But here's the bad news: do you notice anyone missing from that list of balancees? If you said, "Creators", you are a freelance and I claim my five pounds. Freelances in journalism (in particular), and individual creators in just about every other field, are being increasingly and consistently forced to surrender their copyrights.

Until 15 years ago (or thereabouts), magazines and newspapers in the UK bought First British Serial Rights; the freelances benefited from reuse of their work. It is now rare in both the US and the UK to find publishing outlets that don't demand all rights including moral rights (the right to be identified as the author of a particular work).

It is equally rare to find a publisher that offers to pay more for the extra rights they are demanding. When they do, you are usually selling off all future interest in your work for a comparatively small sum (25 percent, in one case where I remember the details). Where there have been cases -- such as New York Times v. Tasini et al in the US -- establishing that, say, publishers must pay freelances for reuse of their work in electronic databases, publishers may make those payments once, but thereafter they alter their contracts to ensure they will never have to do so again.

The Creators' Rights Alliance spells all this out pretty clearly (although I disagree with their stance on the BBC). The same pattern is repeated throughout the creative industries. Photographers: high overheads, shrinking fees due to pressure exerted by the digital libraries. Filmmakers? The average director – as one said to me last year – is paid to do a film and sees nothing further once it's done; the same goes for most other participants in the making of a movie. The record industry? Read Courtney Love on that. Copyright is not just a balance between consumers and rights holders; two-legged stools don't stand up very well.

Copyrights (and the other intellectual property rights) is a three-way balance between consumers, rights holders, and creators/inventors. The latter group, without whom no new intellectual property will exist, is being squeezed by both the first two groups. Increasingly, the only people who will be able to afford to create anything will be people who are either rich to begin with or who have made enough money from some other activity – acting, modelling, founding a business – that they can afford it as a hobby.

The idea behind paying professionals is not that no one else should enter the profession, but that it should be possible for someone to make a living; paying someone to write, think, paint, create full-time in theory makes it possible for them to create more and do a better job of it. Martina Navratilova may say airily that she wrote all her new book herself and that she just had "help" with the organisational side of it – but anyone who actually writes for a living knows that organisation is the really hard part of writing a book. Anyone can throw words around.

So: what needs to be said to the Gowers review people?

First, get that third leg back under the stool before the whole edifice topples over. As Doris Lessing has written (of better writers than I am): "Without me the literary industry would not exist; the publishers, the agents, the sub-agents, the accountants, the libel lawyers, the department of literature, the professors, the theses, the books of criticism, the reviewers, the book pages – all this vast and proliferating edifice is because of this small, patronize, put down, and underpaid person." No one is saying that anyone is owed a job. What we are arguing for is fair treatment.

Second of all, that the current situation with respect to intellectual property rights disadvantages everyone except the stars. Patents are too expensive to obtain – and still more, to litigate – for small businesses. Fair use should be expanded to incorporate the notion of private copying; there is no legal exemption allowing people to copy their CDs onto their iPods. That may have made sense when there was no technology for private copying, but these days it's just ludicrously out of step with what people actually want to do.

We need limitations on what DRM is allowed to do (as net.wars has argued before).

Third of all, the notion of extending copyright terms on sound recordings and performers' rights from 50 to 95 years is ludicrous. Doing so will not inspire new work. It will benefit only the big record companies. There is no reversion of rights in the recording world when music releases go out of print.

Don't get me wrong: I really hope the Gowers review will come up with good recommendations for reform. But as written, the consultation is all about the business of copyright, and very little about the goals copyright is intended to further.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).