Richard Mollet, 18 December 2014
The tensions - some would call them battles - between the creative sector and internet intermediaries have been blowing hard for well over two decades. In recent times it has seemed like the latter were in the ascendant as various political processes and developments appeared to go in their favour. However, in the UK 2014 may come to be seen as the year in which the pendulum swung back, perhaps decisively, in the favour of the creators.
A few weeks ago The Times announced that it was actually now turning a profit from its news operation, which is notable given its digital edition is a paid-subscription model. Then, a few days ago, it was announced that Alan Rusbridger, The Guardian editor and pioneer of the “everything should be free” school of internet business thinking would be stepping down from his post next year and heading into the world of Oxford academia.
I am not saying that these developments are causally linked, but their conjunction does point towards the view that we may have now passed “peak freetard” – that is, the point in the development of the digital economy when the prevailing free-for-all ethos finally gave way to the realisation that twenty-first century businesses were as reliant on those apparently outmoded concepts of revenue and profit as anything that has passed before them.
Another sense of the debate having got over this hump comes from the state of play of copyright reform in the UK. The raft of secondary legislation amending the Copyright Act, as passed this summer, will be the last of its kind for some time to come and marks the final passing of Ian Hargreaves’s IP review. This programme of reform promised to do a lot more damage than it actually achieved. Attempts to foist a fair use regime on to Britain came to nothing, as did the idea of allowing mass photocopying of education materials. What reforms that did come along were either unnecessary, duplicating what was already normal business practice (for example, text and data mining which was already being done under licensing) or entirely welcome by everyone (such as allowing teachers to use white boards without infringing copyright). The main thing to come from the review is the Copyright Hub - such a good idea is bound to find itself subject to paternity disputes, but it is hard not to acknowledge the DNA of the pre-existing Linked Content Coalition in its genome.
It is worth analysing why we got to the position we did and why, especially as when we look across to the EU and the debates which are reigniting in the Commission we can see this debate has life in it yet.
I think one of the main problems is that we have allowed a confusion to creep into our debates, born out of the fact that we have allowed technologists to dictate and mis-state the terms of trade.
We have allowed their conception of works and usages to dominate and subsume what creators mean by those terms. In so doing we have lost traction on the ability to describe how rights “should” operate, allowing the norms and outlook of their world to become the frame of reference for the policy debate around ours. For too long now, we have perhaps been using the same words but meaning totally different things by them.
Here’s what I mean. When those from an IT background, such as writers of code, talk about creativity they mean creating lines of programming in an open source environment; they mean putting stuff out there in the hope and expectation it will get copied, updated, improved, recycled and resourced. Theirs is the world of mash-up. However, generally the writers of novels and songs do not look at the world in the same way. Their creations are not teleological: they are not there to do a job; they are not means to an end but an end in themselves. The integrity of the work is its quintessence.
Both views of the world are perfectly legitimate in their own context. But it is a howling error to try and mix the two up, either to try and make coders see their work as something to be preserved in aspic and owned by them alone; or to make creators see their compositions as things which can and should be chopped up and passed around. People who are writing software so that my fridge can tell me I need to buy sausages are doing a different thing altogether from people who are writing poetry. They should not be bound by the same rules.
The problem has been that whilst creators have always – I suspect – been happy to “live and let live” with these two different conceptions of works, the coders have not been. It is they who have brought the battle on; their insistence that the rules of their world should be the rules of ours; and it is they who have driven the argument that the creators’ view is out-moded.
So when in 2011 Hargreaves felt able to write “The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors”, he was articulating the coders’ view of rights and suggesting it should be everyone’s view.
Finally, I think, we have won the debate in the UK, to which the answer to his charge is “actually, yes it can. The legal framework absolutely should continue to be designed around artists because they are the people who are vital in driving the whole digital economy. But at the same time by all means come up with a complementary framework with which techies can be happy."
The aim for 2015 will be to get European policy-makers to realise that this elision is going on and then to get them to see the world of rights in its proper two-track context. We need to get them to understand that creativity comes in different forms for different purposes and by different people, and that it is wrong – no, worse, crass; even worse, bullying - to try and design rules that work for them all.
Hopefully we will then be at the stage when the IT-crowd stop trying to foist the rules of their world on to ours. They might stop penning policy reviews which tell us that because the Internet has come along our rules don't work anymore. Stop using vacuous phrases like "the wrong side of history" and “fit for the digital age”; stop thinking that just because of the arithmetic accident that the year now begins with a "2" not a "1" that somehow certain ways of thinking are suddenly wrong. Creators didn't ask for this argument. Creators have never tried to tell techies how to run their businesses, have never had the temerity to advise on their business models, broken or otherwise. But around the globe the penny is dropping that strong copyright really matters. In 2015 we will need to drive this point home.