UK Publishers Don’t See Why Anyone’s Complaining About Copyright Law

As the copyright reform effort is underway in Europe, a number of legacy players are running a bit scared. The UK Publishers Association published a rather amusing attempt at “mythbusting” claims that reformers are making about copyright. Nate Hoffelder over at The Digital Reader does a nice job showing how many of the Publishers Association’s claims are complete bunk, and clearly influenced by what’s in the publishers’ best interests, rather than anyone else’s — but that’s to be expected. They’re there to represent a position — and rather than take a long-term view, recognizing that what’s best for the public long-term will be best for the publishers as well, they take the short-term, protectionist, anti-consumer view. Because that’s what these silly trade groups think they should do.

The document was released with a weird nonsensical statement from Richard Mollet, the head of the Publishers Association:

“It is time to debunk the long-pedalled myth that copyright is an obstacle to growth in the digital economy.

“When you look at the success of publishing and other creative industries in developing online products and services it is palpably untrue – copyright is the means by which the digital economy functions, allowing works to be made available to consumers and rewarding creators and the companies which invest in them.

“In order to undermine copyright, people often wrongly cite it as the source of problems in the digital single market; or, they falsely claim not to be able to do things which actually they can. Also, we often hear people propose that copyright is a block to them doing things which would be unfair and damaging to authors and publishers.

It is no myth that copyright has been an obstacle for many businesses. To claim otherwise is just laughable. An intellectually honest argument would admit that copyright law clearly benefits some parties and harms others. The policy questions we should be arguing are about who is helped and who is harmed and what’s best overall for society and culture. But, the Publishers Association doesn’t even want to give an inch and can’t even admit that some innovators are clearly held back by today’s copyright law.

The last paragraph really gets at the crux of the full document they posted, because the summary is basically “people are upset about this thing they can’t do — but they can do it if only they pay us lots of money.” That’s basically the argument behind nearly all of the “myths” the document “busts.”

First, it claims that the idea that Europe needs a “single digital market” is bunk because you can just license everything in different regions with today’s law:

Copyright is delivering a digital single market. The ability of publishers to simultaneously license works across the EU – and in many cases the world – derives from the current copyright framework.

Then they mock the idea that text and data mining uses are blocked under copyright law… because, again, they can just license:

The market-based licence solutions can be tailored to the needs of different researchers and enable publishers to check bona fides and ensure the integrity of the content platform.

How about students being unable to access resources across borders? No problem, the publishers claim, we have a license for that!

The licences under which publishers provide universities with material do permit students to access course materials from anywhere in the EU (and very often the world).

Okay, what about teachers looking for resources from other countries? Well, the Publishers insist, no one really wants that anyway, and if they did, well, there’s a license for that:

There is no effective demand for this. In both the primary and secondary school markets textbooks and other resources are produced explicitly to assist the delivery of each member state’s curriculum. As such the supply and demand for such materials is highly country-specific and cross-border requirements are minimal. Should there be such a demand (for example, if a school in France was teaching the English curriculum) then these materials can easily be sourced and a licence secured.

What about libraries lending ebooks? Guess what? The publishers say you can license that as well:

A variety of agreements between authors, publishers and libraries are in place across the EU which are giving rise to thriving models of e-book lending. The licences underpinning these models help ensure that authors are rewarded when their works are enjoyed, and ensures that authors are willing for their works to be borrowed in this way.

Yeah, but that’s not how regular libraries work at all — and that model kinda worked pretty damn well for a long time. Libraries didn’t have to pay royalties every time someone checked out a book. Changing up that model may make publishers happy, but it makes life more difficult for everyone else.

In short, the Publishers insist, don’t reform copyright law because as long as you give the publishers enough money, they’ll let you do what you want. This isn’t just tone deaf, it totally misses the point. It’s an argument for permission-based learning and permission-based culture. It shows no recognition of how actual education and learning occurs. It shows no recognition of the power of being able to research and learn from a variety of sources. It shows no understanding of the ridiculous prices these publishers often like to charge for many of these “licensed” solutions — and the simple fact that they will often hold back these licenses.

And, most importantly, it shows no recognition of the fact that requiring different licenses in every region is a massive waste of resources and efficiency. But the publishers don’t care because that inefficiency is where they make money.

The other “myths” are just as laughable and can basically be summed up as “this is a myth because we don’t like that idea.” For example, they hate the idea of “exceptions” to copyright law being “harmonized” because it might mean some countries that have overly aggressive rights might lose those. Notice that the following gives not even the slightest nod of interest to the rights of the public.

Fully harmonising exceptions so that the same rules are mandated across the EU will be hugely disruptive and would result in some creators being deprived of rights. There are different legal traditions across the EU with long-established precedents in place (for example, in France there is a much stronger protection of the author’s moral rights). Variations in copyright law, within the over-arching framework of the Directive, are currently permitted in order to recognise these inherent cultural and legal differences. Imposing a single order on the whole of the EU’s creators would almost inevitably cause some to have their rights eroded.

Yes, that’s the point. There’s a tradeoff here, and people are arguing that giving the public slightly more rights to works can actually help culture overall. Yes, some artists might lose some currently granted “rights” to block people, but that doesn’t mean those artists are harmed. It just changes the marketplace somewhat, and likely will help expand it by simplifying rules across a much larger territory.

The list also trots out the usual talking points by those who are against fair use in other countries — claiming that even though the US has it, it would somehow totally upend the legal systems anywhere else:

The introduction of Fair Use would be highly disruptive and expensive for creators and consumers. There is no established basis in European law for the concept of “fair use”, whereas in the US it has been fine-tuned over 170 years of established legal precedents. Simply introducing the concept into EU law would presage a great number of legal cases, with associated high legal costs, as the market – and judges – came to an agreement as to what the terms allowed and precluded. Since there is no evidence that the present system is in need of radical reform, introducing Fair Use would be an unnecessary and damaging step, and one which would have limited application given that international rules on copyright, such as the Three Step Test, would still apply.

Way to sell Europe short, Publishers. It is entirely possible to implement a fair use system today. Arguing that it cannot be done is clearly hogwash. In fact, all that case law in the US should actually help the EU to develop a better fair use system, since many of the questions have already been debated and answered and the EU can draft accordingly.

We’ll close with the final one, because it’s just so insane and so ridiculous:

MYTH #10 An ebook is the same as a normal book and therefore I should be able to resell it

It is not the same. Physical and digital books have very different properties and so require different treatments as regards the ability to re-sell them. An ebook is easier to copy and digital copies are identical clones of the original work meaning that second-hand goods are largely indistinguishable from the original; they can be reproduced indefinitely without any loss of quality. They can also be circulated widely without control but even introducing a “forward and delete” function would not provide effective protection given the ease with which such measures can be circumvented. It is clear that the existence of a market for second hand digital copies will destroy the primary market for authors and publishers.

Of course, as Nate wrote in his piece, if that were true, piracy would have already eroded the book market entirely, but it hasn’t. Either way, the Publishers’ position on ebooks appears to be: (1) we get paid many times for the same book and (2) we block you from reselling it. In short, they’re focused on taking away value from ebooks, to make them even less valuable than regular books.

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