Event 002: Whose work is it anyway? The future of IP

Intellectual property (IP) law was introduced to protect the rights of innovators and artists and thereby encourage invention and creativity. Why invest millions developing a product when anyone can copy it and sell it for a pure profit? The language of IP is familiar to us all in everyday terms such as copyright, patent, royalties, licensing etc. But there’s a powerful argument that IP law has gone too far, protecting the rights of creators at the expense of people actually using and enjoying their creations. For example it is actually illegal to pay for a CD and then copy the music to your phone, even though there is software openly available to do it. Although it would take an extreme example for a case of private format shifting to be actually pursued by a copyright holder, it does demonstrate that while the letter of the law on IP is outdated, the spirit can pass through the walls.

On 20 October The Sharp Project hosted Event002, a debate chaired and sponsored by Ward Hadaway’s IP lawyers on the future of IP in the digital world, with particular reference to the proposals put forward by Professor Ian Hargreaves in his independent report entitled Digital Opportunity: A Review of Intellectual Property and Growth (PDF). The review was commissioned by the coalition government in November 2010.

Present were several representatives of the creative industries who will be affected the most by any change in the law. On the chair was Laura Harper (Ward Hadaway); the panel comprised Greg Robinson (Connect 2 Media); Maria McGeoghan (MEN Media); Ben Stoney (The Mob Film Company); Jim Spencer (O Genesis Recordings); Christian Hill (Project:Simply); and David Tolan (Music Masters Production School).

It is tempting to frame the IP debate as a battle between creators and consumers, the creators trying to wring as much profit from the consumers, and the consumers wishing to pay as little as possible – and preferably nothing – for the creatives’ output. In the middle are the media organisations who both consume and create material, such as news outlets and film-makers.

But these battle lines exist only in people’s minds. First, creators are themselves consumers, and are perfectly capable of seeing both sides of the argument, even opposing aspects of current law to their own theoretical detriment. Nobody on the panel thought prosecuting someone for copying one of their CD tracks to their phone was a good idea – these people are their own customers, after all.

On the other side of the battlefield (a metaphor which has already been captured and imprisoned) consumers themselves are not driven by a desire to get things for free. They will willingly pay for things that they see as valuable, and recognise that creators need to earn a living, especially if they want those creators to go on creating valuable things. Proof? Think of shareware that relies on donations; Wikipedia; Radiohead’s album, which relied on customers paying whatever they wanted for it (but as Ben pointed out, they have already made their money; their business model doesn’t help bands starting out).

In the digital world, where copying material is not just easy to do, it can spread unchecked around the world in minutes, the challenges of creators to secure their revenue have never been more difficult to surmount. Horror stories were told of pre-released movies and albums being leaked – on one occasion via the recording studio itself – which spread the products around the world, bypassing any possible measures to apply a means of collecting payment for it. It is impossible to know how many of those lapping up the free material would never have bought it anyway, but it is probably fair to say that the artists involved, plus any retailers, management companies and others, missed out on potential income.

An interesting angle regarding copyright came from Maria, who told a story of an incident that recently happened in Manchester. Members of the public caught photos of the event seconds afterwards on their phones, while the MEN’s own photographer had to be sent to the scene and could only record the aftermath. Guess whose pictures made it to the front page? But the interesting thing was that the passers-by were thrilled to have their name on the cover of the Evening News, and it apparently never crossed their mind that they might be entitled to royalties. A photo could potentially go global and the photographer could be oblivious to its value.

Maria compared the story with the iconic 1985 Smiths photo taken outside Salford Lads Club. Its photographer, Stephen Wright, still gets royalty payments for it because it is so widely used, but its ubiquity also makes certain people assume it is free, and Stephen apparently spends a lot of time chasing up payments or requesting its removal, depending on who has used it and why.

As the presentations drew to a close, the panellists were asked to make their own concluding remarks. There seemed to be something of a consensus that the law as is stands is at best too rigid and at worst unenforceable, so there needs to be some freeing up of the law, but perhaps not to the degree the Report suggests. One of the most effective ways of tackling the problem would be through educating consumers on the value of artistic output so that there might be more stigma attached to piracy. But the panel’s reception of the Hargreaves Report was lukewarm, particularly in that if it were applied only to the UK or even to all of Europe, it would be next to useless, as jurisdictions with lax or non-existent IP laws would become havens for piracy.

Questions from the floor showed that the panel, comprising mainly people from the creative industries, had not been preaching to the converted. One questioner suggested that they were living in the past, and that if they did not adapt their business model to something that was applicable to the digital realm, their demise would be sealed. Asked to suggest other business models the questioner could not, apart from pointing to Spotify as a successful alternative model. But in fairness the absence of an alternative suggestion does not mean one doesn’t exist (and he’d be a fool to spill the beans here if he did have one).

Another inquisitor, Manchester Digital’s Shaun Fensom, attacked the inflammatory use of language to demonise people who copy work – “pirates”, “thieves” and such like – stating that theft deprives the owner of an object, whereas copying does not. Perhaps a little humility is called for on the part of the media industry if they are to gain public sympathy.

On the night of the event, still and moving images of the Libyan leader Muammar Gaddafi were being shown around the world. The potential earnings for such global use would be breathtakingly high, easily enough to make someone for life, but would any of those who took the images, probably armed fighters who had risked their lives to reach the centre of Sirte, receive any royalties? It would be interesting to know if the people filming the attack were to end up better off than the people doing the attacking, but it does raise a moral point (albeit extreme, admittedly) between the claims creatives make and the way their claims are perceived by the public.

Whatever the rights and wrongs of IP law now or under Hargreaves’ recommendations, the onus seems to be on the creative and digital industries to persuade the public and, consequently, the lawmakers of their case. It need not be hard because they have a strong case, being such an important industry to the UK economy. But there is a sense of unease in the creative industries to the way things are going, and as long as the public perceive the media industries to be making huge profits whilst nit-picking with “the little guy”, there is a danger that IP rights could end up being loosened to the point where creativity is not financially rewarding enough to partake in. And that would hurt everyone in the land.

Perhaps somewhere between the fairyland of artists giving away all their material for free and the prosecution of someone for copying a song to their phone is a happy medium that everyone can happily disagree on.

Charlie Hankers