There is a danger … that without thorough study of potential new business models the demands of public access as regards, for example, the BBC’s archive, will trample too heavily on either artistic integrity or the rights of creators to be rewarded for their work and their consequent ability to produce new work. – Personal Managers Association (PMA), evidence to the Gowers Review
There are some resemblances between extended collective licensing schemes and the scheme proposed in the Google Book Settlement agreement, under which Google would market digitized editions of previously published books, but rights-holders would have the right to remove books from sale. Payments would be channelled through a registry; only registered rights-holders would receive payment for the exploitation of their works, or be permitted to control the uses made of them. The settlement has been heavily criticized, not least by the US Department of Justice.
[The settlement] essentially … turn[s] copyright law on its head because it eviscerates the requirement of prior approval from the copyright holder. … It is the right to control one’s work that creates the incentive to produce it. – William Cavanaugh, Deputy Assistant Attorney General, US Department of Justice, at the Fairness Hearing for the Google Book Settlement
Most professional authors, authors’ agents and intellectual property lawyers who have looked closely into the settlement agreement have been appalled by it. A large number of well-known UK authors took the opportunity to opt out of the settlement before the deadline on 28 January.
It is a matter of concern and anger to authors that the government has refused to take up the challenge of defending our rights. Instead, it has been showing a troubling fascination with the deeply flawed model of rights clearance exemplified in the settlement: to wit, appropriating rights en masse, decreeing the terms for use, and leaving it to the authors to opt out.
There have been rumours that Google has been one of the parties lobbying for clause 43, and indications that one of the extended licensing schemes envisaged is a UK Google Books-style operation. There are many problems with the Google Book Settlement, but one of the biggest is that the project would corner, and stifle, an important emerging market for digital books. The settlement is now awaiting judgement in a New York court; there is no knowing how matters will turn out, but many commentators think it unlikely that it will go through in its present form, given the opposition expressed by the Department of Justice. The DoJ has called, at a minimum, for the default opt-in arrangement to be dropped, and for authors to be given a choice whether or not to opt in. It would be sad, to say the least, if the UK were to adopt a version of a flawed system devised across the Atlantic that the US, following careful scrutiny, found to be unwise and unacceptable.
The right to issue a work in a digital edition, including any reissue of a work that has been published in print, has to be regarded as a primary right, like the right to publish a work as a printed book. In a world in which digital publishing has a growing share of the market, it cannot be viewed in any other light. The right to license photocopying is an example of a secondary right. Existing collective licensing schemes in the UK apply to secondary rights. Any proposal to apply extended collective licensing to primary rights (such as book digitization) is a matter of special concern.
There are very sound reasons why primary rights are licensed on the basis of contracts that are negotiated on an individual basis between the author and the publisher (or other licensee):
- This allows the author to make the best agreement he or she can for the exploitation of the work, based on the known or likely demand.
- It gives the author control over where the work will appear, and in what form and context, which are matters in which every author has a legitimate interest.
This clause could potentially destroy the principle of direct licensing, which is the most efficient means of ensuring that a rights holder is remunerated exactly and properly for the use of their work, and lose creators the right to control their own economic and moral rights. – Paul Brown, Chairman of the British Association of Picture Libraries and Agencies (BAPLA)
Collective licensing run on a mass basis for fixed-rate fees will not remunerate freelance authors at a level that will sustain high-quality work, nor reward the most popular authors on a basis proportionate to the revenue earned by their work. If primary rights were licensed collectively, many of the authors who currently make all or part of their living by writing would be unable to continue doing so.
Primary rights are always, or nearly always, licensed on an exclusive basis. This guarantees best return to the licensee on the resources invested in developing and exploiting the work, and the author, in turn, is remunerated appropriately.
Collective licensing schemes issue licenses on a non-exclusive basis. In clause 43 this is prescribed, or seems to be, under 116A.3 (which also governs the provisions in 116B): ‘An authorisation or licence under the regulations in favour of any person must not preclude any authorisation or licence in favour of another person.’
This is another very important reason why extended collective licensing is not an appropriate way to license primary rights. The licensing body has no way of knowing what exclusive agreements may be in force, or in process of negotiation. The rights-holder has no necessary knowledge of the licenses issued by the licensing body. If an extended licensing scheme is instituted in respect of primary rights, this will break the system of licensing rights on an exclusive basis and compromise the normal exploitation of published works.
The Google Book Settlement agreement tries to deal with this problem by restricting Google’s right to exploit books commercially to books not in print. However, it has been demonstrated that Google’s database is highly unreliable when it comes to marking books as unavailable. There is no mechanism for linking different editions of the same work (which may have different ISBN numbers, publishers and even titles), so that older editions are marked as available for commercial exploitation by Google at the same time as newer editions are on sale from booksellers. The potential losses to rights-holders are enormous, from damage to the value of rights and undermined sales. It is impossible that this problem can be avoided under any system by which works are opted in as the default, with the user, or licensing body, having no direct knowledge of the publishing history of any of them. (Under the proposed settlement agreement, Google is not liable for damages for such mistakes; the onus is on the rights-holders to spot them and flag them up: just one of many reasons why it is an abysmal deal for authors.)
It should also be noted that in some cases there are good reasons why certain books should not be reissued: notably books that have been the subject of successful libel suits, or prosecutions under the Official Secrets Act. This the Google Book Settlement agreement fails to consider, and it is hard to see how any extended collective licensing scheme could easily take account of such issues.
Under extended licensing, authors would be co-opted into schemes without their explicit consent, and in many cases without their knowledge. Any system under which rights were licensed over the heads of the authors would conflict with the moral rights legislation in the Copyright, Designs and Patents Bill 1988: in particular, with the right of authors to object to distortion, mutilation or other derogatory treatment of their work. This is an important right because it protects authors’ reputations. It depends on the author, and the work, as to what might constitute ‘derogatory treatment ‘: it cannot be dealt with on a mass basis. Moral rights may be waived by the author, but according to the Intellectual Property Office (IPO), only in writing. Research published by IPO last autumn found that authors value their moral rights and would like to see them strengthened.
The provisions for punishing suspected illegal file-sharing are not the only contentious parts of the Digital Economy Bill, though they have received the most publicity.
Authors, photographers and other creators have expressed anxiety and anger about clause 43, which contains highly controversial provisions for changing copyright law:
- A new clause 116A to be inserted in the Copyright, Designs and Patents Act 1988 confers on the Secretary of State for Business, Innovation and Skills the power to authorise a licensing body or other person to publish/broadcast/perform/copy/adapt a work that is in copyright, or to grant licences to do any of these things, in the event that the work is an ‘orphan work’ (a work whose copyright owner cannot be found after a diligent search).
- A new clause 116B confers on the Secretary of State the power to authorise a licensing body to grant copyright licences to publish/broadcast/perform/copy/adapt published works regardless of whether any of the people for whom it acts as the agreed agent owns the copyright in them (‘extended licensing’). Copyright owners would be able to exclude rights from use by giving notice.
These provisions depart from the fundamental principle of copyright: that the author alone possesses the right to authorize any reproduction of his or her works.
Orphan works might be considered to constitute a special case, potentially justifying certain closely defined exceptions to the usual rules of copyright law. The orphan works provisions in the Bill will be discussed in a later post.
The extended licensing provisions will apply to works whose rights-holders are traceable, as well as to orphan works. The Secretary of State may authorize a licensing body to license works for use even in cases where the author is not a member of the body and has not delegated any authority to that body to act as his or her agent.
The extended licensing provisions contain no requirement that the licensing body, or the person obtaining a licence, should carry out a search for holders/owners of rights who are not members of the licensing body. This is in distinction to the orphan works provisions, under which (in theory) no use may be made of a work until a diligent search for the rights-holders has been conducted.
It seems almost absurd to have one part of the Bill devoted to protecting copyrights and another devoted to taking them away. I simply do not understand why safeguards inserted to protect copyright owners from having their works mistakenly classified as orphan are not extended to this proposed new section – Lord de Mauley, Shadow Minister for Innovation, Universities and Skills, House of Lords, 8 February 2010
There are indications that one of the intentions behind the extended licensing provisions as drafted is to circumvent the ‘diligent search’ requirement in the case of orphan works.
Extended collective licensing should not be used as an excuse to reduce the obligation on users to trace right holders, [or] to seek permission from the right holders concerned – British Copyright Council, response to ‘Creative Content in the European Digital Single Market’, December 2009
As currently drafted, the provisions in the Digital Economy Bill would potentially place on published authors who wish to keep control of their copyrights the extraordinarily heavy burden of opting out of schemes run by organizations with which they have no connection and that have no obligation to seek to inform them that the scheme exists.
The only way that you can respond … as a creator is by opting out, assuming you knew that process was going on in the first place. We just think it’s incredibly broadly, incredibly badly worded and you cannot begin to believe how open-ended it is. – Feargal Sharkey, chief executive of UK Music, on clause 116B
Collective copyright licensing was developed for use in special cases. Typically, these are cases involving secondary uses, as in the photocopying of already published material, or the broadcasting of recorded music. In such cases, collective licensing may suit the convenience of rights-holders and licensees, who are relieved from the burden of individually negotiating numerous small payments with multiple parties.
Extended collective licensing, in which licensing bodies are empowered by legislation to license works whose rights belong to persons whom they do not represent, developed in the Nordic countries, where it has mainly been applied in much the same cases as voluntary collective licensing elsewhere: chiefly reprographics and broadcasting.
The broader cultural background may … be said to be small homogenous societies built on a high degree of trust and transparency. – Thomas Riis and Jens Schovsbo, ‘Extended Collective Licenses and the Nordic Experience’ (January 2010)
The government has not indicated publicly any compelling special cases that might conceivably justify a departure from the UK’s present voluntary collective licensing arrangements. It has resisted calls to confine the orphan works and extended licensing provisions to educational and cultural uses of the works. It has made it clear that it intends the extended licensing provisions to apply to works whose rights-holders are known or easily traced as well as to orphan works.
The [extended] collective scheme should only operate in cases where the prospective user of the work has expended reasonable endeavours and resource in locating the rightsholder. Remuneration schemes, by definition, are not designed to replace individual licensing arrangements. – Authors’ Licensing and Collecting Society (ALCS), in evidence to the Gowers Review
It is is being widely reported that the Digital Economy Bill will be pushed through the Commons in the short time before the election without any amendments’ being accepted, without its passing through a committee stage and without a third reading.
Most people will be astonished to learn that this is constitutional – if indeed it is. Parliament’s own website states: ‘Committee stage of a Bill must take place in both the House of Commons and House of Lords.’
The House of Commons has both a right and a responsibility to scrutinize and amend this legislation, the more so in that parts of it are highly contentious.
Much public attention has been paid to the provisions that are intended to protect the rights of copyright-holders from infringement through illegal file-sharing. These have provoked indignation on a very wide scale.
The underlying problem for copyright-owners and licensees is the fact that many members of the public do not understand how copyright sustains the production of the creative works that they enjoy. A growing number of people, especially young people, are resistant to the idea that copyright is legitimate and indispensable.
If the Bill is rushed into law without full democratic scrutiny, under a process that is dubiously constitutional, this can only undermine further the public’s perception of the legitimacy of the copyright regime.
This would be bad for the big media companies, in whose interests the Bill has been largely framed, and disastrous for freelance creators, the authors, artists, photographers and composers without whom the creative industries would not exist.
Statement at the Google Books Policy Panel Breakfast held by the Strategic Advisory Board on Intellectual Property (SABIP), 23rd February 2010
The Bookseller reported recently that the government sees it as “right” that the Publishers Association “leads” the UK’s response to the Google Settlement. I’ve been asked to point out that the rights that the settlement would license to Google are rights to works created by authors; rights that in a huge number of cases belong to authors; publishers may hold licenses to them, but authors own the copyrights. Many of the rights to out-of-print books have reverted to their authors. Authors are very big stakeholders in this business; and many of us are feeling that we are not being taken sufficiently into account. It is authors who by their original creative work produce the value on which the entire publishing industry depends.
In this country professional book authors who have looked into the Google Settlement hate it. I am talking about authors who license their books to trade publishers in return for an advance on royalties, and who have built their careers wholly or partly round writing; authors who sell books in large numbers, and authors who are hoping that their latest book will break out into the big time. Witness the many UK names on the opt-out list, an amazing range of talent that spans the genres, the generations and the political spectrum. The debate among authors in the run up to the opt-out deadline was focused on the best way to escape from the thing: opt out, or opt in and remove your books. I know several who have taken the latter course; anecdotally, I know there are others, probably very many. Some are relying on promises from their publishers to pull their books from Google’s database. I can only find one professional UK book author who has praised the settlement: Maureen Duffy, Honorary President of ALCS and a representative plaintiff.
The settlement has been a PR disaster for Google. Authors worldwide write blogs that are read by fans, friends, family, and many wannabe authors. In recent months, comments on forums and blogs have become increasingly hostile to Google. This includes comments on news sites, and even, remarkably, in geek strongholds like the famous Slashdot site.
Google claims that out-of-print books are of no economic value, and that the settlement is the only way that authors can benefit from them. Professional authors know this is nonsense. Winning an award; getting a TV or movie deal; bringing out a new book in a series; writing in a genre that comes into vogue, or on a theme that becomes topical; all these things and more can ‘breathe new life’ into an author’s out-of-print backlist. Authors who believe their works have value, to themselves, to publishers and to other entertainment media want deals with advances and promotion, negotiated on the best terms that the market for their works will bear. They are not impressed by the prospect of being buried amid millions of books in some online bookstack. They do not believe that mass-licensing arrangements for the benefit of content aggregators is a way to run a healthy book industry, or make the profession of authorship either economically tenable or creatively appealing.
The Google Book Settlement is objectionable not just in its details – though there are many objectionable things about it – but fundamentally, in the way that copyright-owners are opted by default into a scheme for reproducing, selling and sublicensing their works. I cannot put it better than William Cavanaugh, the attorney who presented the case for the US Department of Justice at the Fairness Hearing: he said that the settlement “essentially turn[s] copyright law on its head because it eviscerates the requirement of prior approval from the copyright holder”.
Without prior approval, there is no copyright. Copyright is a right to authorize reproduction.
Here’s something else that Cavanaugh said: “It is the right to control one’s work that creates the incentive to produce it.”
Every age gets the culture that it pays for: pays for in money, and pays for in respect.
The market in e-books is taking off. If we let the market take its course, then, a few years down the line, most in-copyright books of value will be available, permanently, in e-editions. Given demand, publishers, some of them specialists, will track down and negotiate with the copyright-owners of those scarce but sought-after academic monographs, those out-of-print novels whose authors still have a following, and most of the rest of the misnamed ‘lost books’.
Time enough after that to worry about the rest of the books, the so-called orphans, and the books that nobody wants.
There is nothing new about reprint publishing. What is new is that the web makes it possible to efficiently match the niche publication with its readers, and the costs of keeping a digital work available are very low.
We can have a diverse, innovative market in e-books or we can have a Google monopoly. We can have a publishing environment in which authors whose works are in demand will be properly paid, because there will be competing outlets for their work. Or we can write RIP over literature in the long forms: the novel, the memoir, trade-published non-fiction, and Google Books shall be its mausoleum.
We don’t need the Google Book Settlement: what we need is what we have, a living culture, generating real value.
From the Declaration filed with the court on 11th February by Owen Atkinson, Chief Executive Officer of the Authors’ Licensing and Collecting Society (ALCS):
In relation to the settlement ALCS has from the outset taken the stance of informing our book and article author members about the agreement, its implications and the options available without giving advice on what action members should take.
From ALCS News Spring 2009:
… on pages 10–11, two representatives of the US Authors Guild explain why they believe that their landmark settlement with online giant Google – arrived at after they had launched a lawsuit against the company – is good news for writers.
… I can tell you very simply what all authors like: They like their books to be read, and, except for the most financially perverse of authors, they like a good royalty check. – Paul Aiken, Executive Director of the Authors Guild
I know I look forward to having free access to millions of books at my local library and to getting some income from all the millions, or billions, or googols, of fingertips that will be tapping into my online oeuvre. There’s hardly any telling where the future of books will lead, but this agreement is a major pathfinding step. – Roy Blount Jr, President of the Authors Guild
Many UK writers (or their heirs and successors) are … part of the class to which this settlement applies and have the opportunity to submit claims for financial recompense. ALCS recommends that you review your options to ensure that you do not miss out.
Most professional authors with active careers who have looked into the detail of the Google Book Settlement have reacted with alarm and anxiety. Debate among them has focused chiefly on the best way to prevent Google Inc. from displaying or selling their books without authorization: whether it is better for authors to opt out and rely on copyright law, or register their books and invoke the provisions in the Settlement Agreement for having them removed.
The main UK authors’ organizations have hailed the Settlement as a positive development and advised opting in.
The Society of Authors has been markedly vague, much of the time, about the contents of the Settlement Agreement. More than once when it has ventured into specifics it has shown itself to be troublingly confused.
As for the Authors’ Licensing and Collecting Society (ALCS): it has been facing an uncertain future with the decline of the photocopier. It has welcomed the Google Book Settlement in terms that suggest that it sees a new licensing opportunity, administering UK authors’ payments from the planned Book Rights Registry.
Meanwhile, UK authors have been asking: where is the government in all this? Why isn’t it taking action to protect our rights?
The governments of France and Germany sent briefs to the court urging the rejection of the settlement. The government of India made diplomatic representations to the government of the United States.
In recent weeks, the sorry truth has been emerging: in Britain the New Labour government supports the Google Book Settlement, and has done from the start.
In an article in the Times in November 2008 David Lammy, Minister for Higher Education and Intellectual Property, hailed the Google Book Settlement as
[a deal that has] the potential to streamline the administration of copyright in the digital age … an evolution in the way copyright licensing for printed works is administered and a revolution in the freedom of access to harder-to-find works.
This op-ed by Mr Lammy was drawn to my attention by officials at the Intellectual Property Office (IPO) at a meeting on Monday 25 January. The meeting was set up by two intellectual property lawyers from London solicitors Olswang, Mark Devereux and Clive Gringras. They took along with them my agent Meg Davis and me: not as clients but in order that we might contribute to the discussion on the basis of our knowledge of and deep concern about the Google Book Settlement and our experience of how the book industry works.
The following points are among those that emerged at the meeting:
- From the point of view of IPO and the government, the GBS model of digital publishing is one that is ‘in principle worth looking at’.
- ‘Improving access to digital content’ is perceived as immensely important, and there is held to be a ‘logjam’ in delivering this, which the mechanism of the GBS dislodges. (I challenged the existence of such a logjam in the meeting.)
- There is a perception that licensing works for use is currently ‘too complicated’.
- On the whole idea of the GBS and the way it is set up to operate: when they looked into it they found ‘nothing so offensive about it that we would unhesitatingly condemn it’.
We were told that our group was far more hostile towards and critical of the GBS than anyone else they had talked to.
The Publishers’ Association (PA) and the ALCS have been lobbying for the GBS: no big surprises there. I didn’t get it clear whether the Society of Authors had made direct representations, but IPO were aware that the SoA broadly supports the GBS. IPO has not taken steps to consult widely among authors, but has been taking a kind of ‘straw poll’ of various authors who have passed its portals in recent months: we were told that all of them said that the GBS sounded like a good idea. (I suspect none of them had read the agreement.)
The big issue for IPO seemed to be the support for the settlement that had been expressed from the publishers’ side. This accords with a statement from Department for Business, Innovation & Skills (DBIS), reported by The Bookseller on 4 February. Confirming ‘that the government would not be lodging an objection to the settlement’, the spokesperson was reported as saying that ‘it was “right” that the Publishers Association “leads in this process”‘.
The government is all too plainly in need of assistance to get its collective head round the fact that copyrights belong to authors, not publishers; for the most part publishers only license them.
It also ought to be asking the PA some tough questions about the secret side-deal between Google and the big publishing corporations; but more on that in a later post.
To return to David Lammy’s op-ed: it makes alarming reading to any author who is at all well-informed about the GBS. It indicates plainly that the current Minister for Intellectual Property would like to jam a Google Book Settlement-style compulsory licensing system down our throats over here.
Provisions included in the Digital Economy Bill (Clause 42) would pave the way for this. They provide for the government to bring in regulations under a statutory instrument that would authorize ‘a licensing body’ – such as the ALCS – ‘to grant copyright licences … in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts’. In other words, this would be a default opt-in arrangement, just like the Google Book Settlement. It would be possible to opt out only ‘in respect of rights excluded by notice given by the copyright owner in accordance with the regulations’ (whatever those may be). The reference to ‘rights’ implies that, just as with the Google Book Settlement, an author who wished to stay in control of his or her copyrights would have to give details of every single publication he or she had ever licensed. (The same would apply, if course, to literary estates.)
These provisions would permit the Secretary of State for Business, Innovation and Skills (or a successor) to authorize the ALCS (or a similar company) to mass-license all British publications to Google (or another entity), except in those cases where the authors or other copyright-owners had gone to some trouble to prevent this.
And this is indeed the intended scheme, as a Tory spokesman has just confirmed in an email to another author: ‘The Bill would provide a legal framework for a potential book settlement in the UK, backed up by codes of practice.’ The Tories support the idea.
The GBS is in some trouble in the States. Following serious criticisms from the US Department of Justice, there are big questions over whether the court will approve it, and if it does, in what form.
But if authors in Britain don’t make their voices heard now, they may find that a similar scheme (or a worse one) has been imposed over here by government decree.
The ALCS isn’t going to oppose this. The Writers Guild of Great Britain has been actively calling for it. The Society of Authors has nothing to say about it on the public pages of its website. Given the Society’s support for the GBS, it can no longer be assumed that it will speak up for authors’ rights; which given its long and honourable history is very sad.
Action on Authors’ Rights is an ad hoc campaigning group set up by UK authors and agents who are deeply concerned about the Google Book Settlement, the Digital Economy Bill, and other current threats to the fundamental principles of copyright.
It aims to bring home to the UK government and opposition the well-founded concerns of UK authors about the Google Book Settlement and the Digital Economy Bill, and to have an input into the debate on digitization and copyright in Europe.
Whether you opted out of the GBS, or reluctantly stayed in, it would be great to have your input and involvement.
We also welcome UK literary agents.
In addition to the mailing list, there is also a Facebook group: email the organizer if you want to join.