The Future of Copyright, or, Does Copyright Have a Future?
Recorded at Frankfurt Book Fair 2016, The Markets Conference
•Rawan Dabbas, Emirates Publishers Association (UAE)
•Sarah Faulder, Publisher Licensing Society (UK)
•Marcos Pereira, Syndicato Nacional dos Editores de Livros (Brazil)
For podcast release Monday, November 7, 2016
KENNEALLY: Good morning, everyone. Welcome. Before we start our discussion, I have a small apology to make. As you just heard, we entitled this program The Future of Copyright, but that was a marketing trick. All anyone really knows about the future is that the parking there is going to be a lot more expensive.
My panelists and I are neither time travelers nor psychics. We can tell you as much about how copyright will look in 2017 as we can about its fate in the next century. In fact, though, why even bother? The future of copyright is going to get here soon enough. Just ask Apple and Google. That’s what they think. Indeed, as is evident everywhere at Frankfurt, publishing today depends on technology, and technology is pressing copyright in ways never imagined in the days of printing presses.
Rather than the future of copyright, then, what we will discuss is the very latest news from the present of copyright in a trio of important markets – Brazil, the United Arab Emirates, and the United Kingdom. Copyright holders in the digital age are under challenge across the globe, not only from wide-ranging infringement, but also from so-called reform. We will hear about how legislation and legal action in these markets as well as how publishers there are adapting at managing the disruption by harnessing market-driven forces.
Now, the only way to predict the future is to invent it – to give it shape in the present. That’s why we also decided to pose the question, as you heard, does copyright have a future? The answer is only yes if we want it to be. Joining me now for the discussion, we have on the far end Rawan Dabbas. Rawan, welcome.
DABBAS: Thank you for having me, Chris.
KENNEALLY: Rawan is the head of international relations at the Emirates Publishers Association. She is a lawyer by profession and has leveraged her skills to enhance the legal framework for publishers in the UAE and has been instrumental in facilitating discussions between several stakeholders there, including the EPA – the Emirates Publishers Association – and the ministry of economy to help establish the Arab world’s first reproduction rights organization.
In the middle, we have Marcos da Veiga Pereira. Marcos, welcome.
PEREIRA: Good morning, everyone.
KENNEALLY: Marcos Pereira is one of the partners of Grupo Sextante, one of Brazil’s leading trade book publishers. From 2003-2005, he was vice president of the Brazilian Book Chamber, and in 2014, he became president of the country’s publishers’ association, known as SNEL, Syndicato Nacional dos Editores de Livros. He served previously there 10 years as director.
And then finally to my left is Sarah Faulder. Good morning.
FAULDER: Good morning.
KENNEALLY: Sarah Faulder was appointed chief executive of the United Kingdom’s Publishers Licensing Society, PLS, in October 2010. In her early career, Sarah practiced law at a London law firm specializing in copyright. She then worked in the music industry for over 13 years, first as chief executive of the Music Publishers Association before becoming chargée de mission at BIEM and CISAC, the Paris-based international umbrella organizations for collecting societies, and later as public affairs director for the UK’s PRS for Music, a licensing society of songwriters, composers, and music publishers.
So a really wonderful and varied background for each of these panelists here. But Sarah, I want to start with you. We talk about copyright – I think it’s fair to say copyright was born in the UK with the statute of Queen Anne in the early 18th century. It’s a good place to start with you. But what we’re going to hear about, I think, is some of the great changes that have been going on. Certainly on the minds of everyone here today is Brexit. We’ll hear a bit about the potential impact of Brexit. But you’ve already been through at PLS a great many reviews and a great many efforts at change. Can you briefly summarize what has been at issue and where you’ve come so far?
FAULDER: Yes, indeed. Thank you, Chris. Just to say, as you said, the statute of Anne dating back to 1710 shows actually how copyright can be adapted. It really can be adapted. So I take comfort from the fact that we’ve had it for so long that it will adapt to the future, and we will continue.
But back to the immediate past, in the UK we’ve had two major reviews of copyright in the last 10 years, under Andrew Gowers and more recently under Ian Hargreaves, which may be familiar to some of you. We looked very hard particularly at the balance between rights and exceptions. There was a strong push from Ian Hargreaves to introduce the American concept of fair use to replace our fair dealing.
KENNEALLY: For those in the audience who may not be familiar with some of those terms, fair use and fair dealing sound like the same thing. They’re not entirely that. Fair use is a defense for infringement in the United States, and fair dealing is perhaps less broad. So you were concerned that the move towards fair use would open up more exceptions and really kind of expose publishers more.
FAULDER: Yes, indeed. But also the uncertainty that goes with fair use, because to test the boundaries, it seems you always have to litigate, and that’s very costly. In the UK, we had a very clear understanding of more or less how much you could copy without getting permission first, and we had a good understanding of what that meant. So I’m relieved that we did see off fair use. We don’t have it in the UK. I know it’s the subject of debate all around the world at the moment.
But the upshot of the latest review is that we had some new legislation introduced a couple of years ago. UK copyright has been thoroughly gone over recently. We don’t think it needs to be looked at again. Brexit raises a lot of questions. I’m probably in no better position than any of you from reading the press to know what will happen, what our relationship with Europe will look like. But it is important – Europe will still be our trading partner, and it’s helpful if our laws are consistent, particularly with copyright, where publishing, music, they all travel internationally. So we do need to have consistent standards.
What we do know is that our prime minister announced about three weeks ago that all the legislation that has come through Europe – and in the case of copyright, if you look at our 1988 copyright act, it is peppered with updates and amendments and new regulations that have been implemented. So it’s right in the middle of all of our copyright laws at the moment. Those are going to be repealed, but they will be transposed overnight into UK law. So actually nothing will change in the immediate future, and it means we will have a breathing space. We don’t have to go back and unpick every single law, but we can revisit it if and when we think it’s necessary to do so.
KENNEALLY: Right. I think that’s important for the audience to hear, that although the UK will eventually be leaving the EU, this great repeal will be a way to kind of pour European legislation directly into British law. So the difference will be – there will be no difference, at least in the short term. Very interesting, I think.
FAULDEN: But on the face of it, everyone thinks that everything will be changed – the great repeal act. So that will satisfy the Brexiters.
KENNEALLY: Indeed. Rawan Dabbas at the Emirates Publishers Association, you are at the very other end of things. If Sarah is coming from a culture of copyright that’s more than two centuries, nearly three centuries old, in the UAE, things are very, very new indeed, and you’ve been there almost from the start. Tell us about the efforts that have been underway there.
DABBAS: Yes. Thank you, Chris. The UAE is actually in a very strong position. The fact that it’s a very new country – it gained its independence only in the early 1970s, 1971, I think – which means that we had the opportunity as a country to look at international experiences and how they have framed their copyright laws to basically implement the best international practices and standards. So in terms of legislative framework, I think the UAE has had a jumpstart, just because it has the ability to look at other international experiences from all over the world.
However, also compared with other countries in the world, the UAE’s digital content is not pervasive. It’s not yet – sorry.
KENNEALLY: I was going to say it’s really important, because there are some numbers here that kind of bear that out. Even though the UAE is very much a high-tech region – the number I have is that the internet penetration is something like 55%, which is far above the world average – book sales in the digital form are a great deal less than you might expect from those kinds of numbers. Very few Arab-language books are published online. So the copyright challenges that you have aren’t simply the ones that everyone here is familiar with on the digital side. There are copyright challenges on the printed side, on the physical side as well.
DABBAS: Yes. Yes, that’s true. Actually, only about – I think only 33% of books are published in the UAE online – are available in digital format. However, the copyright law has been very, very strong in enforcement against infringement, but mostly it has been with hard copies, with paper print. They’ve done a very good job at enforcing these laws. However, like you mentioned, despite the UAE having one of the highest rates of internet penetration, expected to reach at least 55% by 2018, which is almost 7% higher than the average world rate penetration, we still do not have that much Arabic digital content, which means that most of the focus has been on enforcing infringement in other areas – more to do with print, less to do with digital.
However, the UAE has been aiming and moving towards being the most creative country in the world, trying to feed into the creative culture. 2020 is a big date that the UAE has been marketing to become the best country – the most creative, to have a creative economy. So looking at enforcing digital infringement is something that needs to be looked at.
As such, with the Emirates Publishers Association, we’ve kind of looked 10 years from now and decided that OK, so we’re nurturing a creative industry. We’re going full throttle on this. Then we need to establish a reproduction rights organization. Collective management is an important ingredient to help this economy survive. How can you encourage a creative economy without ensuring that rights holders can get their rights protected and make sure they get fair pay for their use and cultivating that knowledge and educating the people around digital copyright?
KENNEALLY: Right. And I think again, for everyone in the audience to understand – so these reproduction rights organizations, they provide a real structure when it comes to the two-way exchange of copyright. They sort of enable that marketplace to work, which is what’s really essential, I think.
DABBAS: Correct. Yes, yes. When you have a collective management center, such as a reproduction rights organization, you are ensuring, you are guaranteeing creative publishers or writers, as it may be, coming from abroad that the UAE is a good place to invest your work in, because your work will be protected, and people are educated about copyright. And vice versa – for people in the UAE, it will push that drive to the creative economy. It will grow the publishing industry. That’s very important for us.
KENNEALLY: Right. Marcos Pereira – in Brazil there, you are just coming out of, I understand, a long period of time where, as you put it to me earlier, there was an effort to liberate copyright. The thing that’s interesting is Brazil is a very creative economy. Everyone is familiar at least with the wonderful output of music that comes from Brazil. And this effort to liberate copyright interestingly was coming from someone who benefited from all of that, a musician himself, Gilberto Gil, who was your minister of culture in the most recent administration of Lula da Silva. So where do we stand today? After going through that really very strong effort to liberate copyright, where are things now in Brazil?
PEREIRA: Thank you for being here and the invitation. As we spoke about this, this has been a fight with the minister of culture and all the culture organizations, not just publishing – music, movies, everything related to protection of copyright. Our understanding was always that the best way to protect copyright is to offer content at a fair price. As Rawan was saying, think about digital books. People will go and download a PDF if they don’t find an ebook available, but if they do find, my belief is the majority of people will rather buy that book.
So we had problems in the past – Brazil is a very difficult economy, because it’s socially very unbalanced. It used to be called Belindia, like you have part of the country that is Belgium and a big part of the country that is India. The social inequality – it’s an argument for the minister of culture to say we have to liberate copyright, because we have to give access to content.
KENNEALLY: Right. That’s a discussion we could have separately, which is all about that real tension and that relationship that copyright seems to have between access and what is labeled as restriction, but is really more about the kinds of rights and respect for intellectual property that Rawan was speaking of and that Sarah was speaking of.
PEREIRA: Yeah. In terms of law, it was interesting to see 1710, early 1970s. The Brazilian book market has been active for a long time, and our latest copyright law is from the ’80s, so it’s 30 years old, and it’s very well established. There’s absolutely no doubt about what is the law, what is legal, what is not legal.
In the ’80s, the biggest question about copyright infringement was with the STM titles being copied at universities. This is interesting, because we’re talking about private universities. We’re not talking about public universities. It’s not the public students. It’s the private students that are wealthy enough to buy the books. But if you have to buy a chapter of a law book or a medicine book, then there was a big problem of the teachers delivering it to the copy machine and telling students to go there and copy it. The response was this is a crime, so we got the police to go to universities and enforce the law. As you can imagine, this is not the best PR practice, especially with young people, young students, and they say, oh, this is unfair. That’s a question of illegal and unfair.
With the digital world, the trade publishers began to see a number of titles also being – the PDFs being downloaded. So the new thing in Brazil is that there’s a new law, the internet protocol, that establishes that the server is co-responsible for hosting an illegal file.
KENNEALLY: That could be the internet service provider. It could be Google.
PEREIRA: Exactly. Exactly. That’s very important. We have one association who’s fully dedicated to protect that – to look at those issues and sue the companies that are. And we’re working right now also with the collective rights, because again it’s the question of making it available. Once you make it available, there’s really no excuse for infringement.
KENNEALLY: And the success that you’ve had in Brazil in drafting that legislation around the internet protocol came about because of the coalitions that you were able to build. So this wasn’t simply about the publishers getting theirs. You brought in the academy as well, helping to represent writers and authors.
PEREIRA: It is writers and authors at the end of the day, because we are the big sharks. People will always look at us – oh, this is the publishers trying to protect their share. But no, the publishers are actually the protectors of copyright. When we sign a contract with an author, what we’re doing is telling the author that we will protect his or her copyright and work on her or his best interest, meaning publishing well, selling lots of books, paying royalties, and protecting piracy. This is a package that has to be understood.
KENNEALLY: There are so many issues to cover, and I’m afraid we only have a few minutes left. So I want to pivot from what Marcos was just talking about, about the bad PR that they experienced in Brazil, to something you mentioned to me which I thought was really very thoughtful. That is this word copyright – it goes back to that statute from 1710. Just as some of the language has evolved elsewhere in English, and I’m sure in many other languages, there’s a sense maybe that copyright – it’s a legacy word. Give us some reflections on that. Is there a challenge here for publishers to try to make copyright, if you will, more user-friendly in this century?
FAULDER: We have thought long and hard about what we could replace the word copyright with, and no one has come up with a good solution. It does have a very arcane, historic ring to it, which is not helpful in the internet age. But I think what we’re very focused on now is making copyright work in practice. It goes back to what Marcos was saying. We must not lock up the content. We must be seen to be making it available at a reasonable price, not overcharging for it. Make it easy to get permission to get a license. It’s incumbent on us to make copyright work. And if copyright works, then no one needs to think about the word copyright.
In the pre-internet age, no one knew about copyright, because consumers never had to come across it. It was all B2B. It was all behind the scenes. It’s only recently, since Napster, etc., that individual consumers are confronted with this thing called copyright. So we’re very keen just to make it work, and this is where the RROs come in. If licenses are available –
PEREIRA: If I may comment –
PEREIRA: In Brazil, the translation is author’s right. It’s very different. It’s the author.
KENNEALLY: That’s an interesting twist on that. Perhaps we might try to test that out here. Certainly if anyone has any ideas for a better word for copyright, we will take them. I want to give Rawan Dabbas the last word here. You mentioned about the recent history of copyright in the UAE. It’s a relatively small country in a very big world. Yet what you’ve been working on – not only bringing together the regional representatives, but the EPA has reached out to global organizations, and that may be the key. Markets can’t exist on their own. They need global relationships.
DABBAS: Definitely. The Emirates Publishers Association has worked very hard on reaching out to IPRO, to the Copyright Clearance Center with the help of the International Publishers Association, visiting and conversing with other publishers’ associations on getting, again, the best international practices and standards.
I’d like to just go back to what Sarah said. The most important thing is reeducating the public in this digital age, because there has been a huge normalization of copying on the internet. Had I not studied law and got into this, I would have thought it’s completely normal to share and copy and download. Why not? It’s available. It’s an open platform. Having it connected to all that legal jargon – copyright law and intellectual property and infringement – it makes it sound like it’s such a difficult task. It’s something impossible.
And I really like the idea of changing the name, because it makes a lot of sense. You need to reeducate the public. Educational institutions, government, publishers’ associations, reproduction right organizations need to reeducate the public again on what it is to infringe copyright online, because a lot of people have no idea that it’s anything.
KENNEALLY: We’re going to give you as your assignment when you go home to help educate your own audiences and your own publics. Given this notion that we might change the word, maybe when we come back in a couple of years, this will be an entirely different panel with an entirely different name.
But I want to thank our panelists. Rawan Dabbas, who is head of international relations at the Emirates Publishers Association. Marcos Pereira from Brazil at Grupo Sextante as well as SNEL. And Sarah Faulder, chief executive of the United Kingdom’s Publishers Licensing Society. And thank you, too. Thank you.