The UK’s creative industries are a major success story - publishing, television, plays, movies, and video games, account for over 10% of all UK exports, despite accounting for about 5% of GDP. Yet the system they rely upon - copyright - is set up in a way that often harms both rights-holders and people who want to use the copyrighted material. While the sector is already extraordinarily successful, and widely considered world-beating, it could be better still.
The UK, along with most other countries, is signed up to the Berne Convention on copyright, which sets a minimum copyright duration of 50 years after the creator’s death. In the UK the duration of copyright is even longer than the minimum – following an EU Directive of 1993, for most kinds of work it is now 70 years after death, with only a few exceptions.
At first glance, a duration for copyright of 70 years after death would appear to be a sign of very strong intellectual property rights. But the reality is that they are extremely weak. Copyright infringement is rife, to the detriment of creators, their heirs, and the people who commissioned the works. Indeed, almost every single person in the country has probably unknowingly committed copyright infringement and not even realised it. The weakness of copyright partly stems from the difficulty of enforcement – the onus is on the copyright holder to identify instances of infringement, ask for infringers to cease and desist, and in some cases to prosecute. But perhaps more importantly, it also stems from the significant obstacles presented to law-abiding would-be users of copyrighted material to even identify the relevant rights holders. Respecting copyright laws is often too costly.
When a creator is still alive, it is more straightforward to find their contact details and ask their permission to reproduce their content. In cases where they may have ceded their copyrighted material to another, the owners can also often easily be found - a book publisher, for example, is likely to record whether the author owns the copyright to the work, or if the author ceded those rights to the publisher. Yet after a creator’s death, it becomes significantly more difficult for a would-be user of content to find the rights holder. With a duration for copyright lasting 70 years after the creator’s death, it is entirely possible that the rights to the content might pass through three, four, or perhaps even more generations of a creator’s heirs. Indeed, the heirs by that stage may be totally unaware of the fact that they even own the rights to the content.
In such cases, the government’s current guidance for would-be users is that they should undertake a “diligent search” for the copyright holders. Assuming that the original creator can even be identified, the government currently recommends obtaining a subscription to genealogical services like Ancestry.co.uk, ordering wills to determine the creator’s heirs, contacting a range of professional organisations that the creator may have been a member of to determine the details of their lives, and conducting a variety of other searches. Essentially, it recommends turning yourself into an expert genealogist and private investigator. For example, it might take weeks of work to conduct a diligent search in order to use a single image created in the 1920s, which just happened to have been made by a creator who died in 1951 - just before the 70-years-after-death term was up. The time cost alone, even apart from the money cost of such a search, may be so high as to make it not worth the while of the would-be user to bother. That is, if they are strictly law-abiding. Given the cost and the possibility that the heirs of the creator have forgotten about it, the would-be user might simply infringe the content and hope that nobody notices.
To try to remedy this situation, the government in 2014 introduced an “orphaned works” licence and register, whereby a would-be user could demonstrate that they had undertaken a diligent search but had still failed to locate the rights holder, and thus pay the government for a 7-year licence to use the work for both commercial and non-commercial uses. But this policy has clearly been a failure. The onus has remained entirely on the would-be user to incur all costs in terms of money and time, and indeed to pay the government an additional cost on top of that. In the 6 years since the register went live, only 1,011 works have been registered – despite the fact that there must in fact be millions of such orphaned works. Indeed, a quick skim of the register reveals that the orphaned works list has sometimes been misunderstood, with museums, archives and public bodies obtaining licences for works that are clearly well out of copyright anyway (e.g. the manuscript journal of someone who died almost 300 years ago).
The overall effect of the law as it currently stands is that much of the creative output of the twentieth century is simply not used. This inevitably has a stultifying effect on the creative industries, and is also a disservice to past creators, whose works must go unused and forgotten, or else infringed upon. The very few exceptions are when long-standing and wealthy corporations, like Disney, are well aware of their creative content and have the resources to aggressively prosecute infringers. By analogy, the situation as it currently stands is like the country having vast estates of habitable buildings, of which the owners are often totally unaware, and which the would-be buyers cannot purchase because they cannot find the owners, leading to widespread squatting or else total dilapidation.
The situation also leads to instances like that involving Google Books. Google, having scanned and published millions of the world’s written works from the twentieth century, hoped to spread that knowledge to the world at large. Yet many of the works have had to be restricted or removed from the web because it is too costly for even a behemothic company like Google to work out who now owns the rights to them. Although the work of scanning and uploading has all been done, the law makes it too expensive for the works to be revealed.
Removing these obstacles would help boost Britain’s knowledge economy. But how? Trying to shorten the duration of copyrights below 70 years after death is likely to meet fierce resistance – it is difficult to roll back rights without seeming expropriative or unjust. And even if copyright durations were to be successfully shortened for future works, it will likely only have any effect on the creative industries after well over a century, when the copyrights of still-living creators finally expire. To have a more immediate effect, we need something better.
Instead of changing copyright’s duration, the UK might implement a system whereby works have to be registered after a certain number of years after the creator’s death, in order to exercise certain aspects of the copyright. Such a system was in place in the US before 1989, for example, before it joined the Berne Convention. But the treaty unfortunately forbids such registration systems, and it seems unlikely that the UK could easily depart from it. Nonetheless, the US has come up with an interesting compromise: although registration is no longer a requirement in the US for holding the copyright, it is still a prerequisite to filing an infringement suit, especially if attorneys’ fees and statutory damages are to be recovered. Thus, the US technically conforms to the Berne Convention while also continuing to see the benefits from a registration system. Such a compromise may well be worth emulating in the UK, to cover works by creators who have been dead a number of years. The creators themselves would thus never have to worry about registering the work, continuing to own their copyright from the moment of creation, while their heirs and estates would have a very minimal administrative burden placed upon them if they chose to vigorously prosecute infringers. Creators, inheritors, and would-be users would all benefit from such a system, and would give a second life to the creative output of our ancestors.