Let’s protect authors’ rights
If we are serious about arts, news, culture and science, we must release the flow of authors and creators’ remunerations.
Writers, lyricists, composers, playwrights, photographers, journalists, directors, performers, scientists and engineers are at the heart of creation. This heart pumps content to the furthest parts of the body of society through a sophisticated circulatory system — a system that digitalisation is making continuously more efficient.
Two types of pipes: arteries to bring work to the users and veins to feed compensation back to the authors. One circulation: a flow of content in the arteries and a counterflow of money in the veins. Current issue: the counterflow of royalties does not cope anymore with a stronger and more complex flow of creations. Two options: a surgical intervention to reduce the flow of content by enforcing the Articles 11 and 13 of a new copyright directive, or a preventive cure to boost the counterflow of royalties by streamlining their payment process.
The surgical intervention could be counterproductive, the preventive cure is in development.
Pernicious effects of distribution bottlenecks
Innovation is the new combination of existing things. Reduce the access to things and you will reduce the stream of innovation. Nobody wants to lessen European scientific or industrial output, and nobody wants to reduce access to the inputs feeding research or innovation. But, if one renders that access legally uncertain and administratively cumbersome, one may dry up the source of European competitiveness. Furthermore, it remains to be proven that the introduction of new neighbouring rights would increase the revenues of the actual authors and that the management of these rights would cost less than what it would bring.
Creativity does not come out of nothing. Inspiration is triggered by external inputs. T. S. Eliot wrote in his essay about literary debts: “Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different”. Recycling is the commonality between immature and mature poets, talent is the distinction between bad and good poets. Recycling is necessary, talent is desirable. Curb recycling and you will curb the diversity of artistic expressions of the human condition. Moreover, curb European recycling and you may well end up with a poorer European cultural identity as Europeans won’t be prevented to recycle other sources.
Discovery happens on social media and networks, where word of mouth is spread — the strongest marketing tool. For incumbent publishers, record labels or film companies, restricting word of mouth is shooting itself in the foot. For new entrants, emerging artists and new talents of any kind — without rights department or representation — restricting word of mouth is a death warrant. That is surely not the intention; there are only good intentions, but the road to Hell is paved with them. A thorough impact analysis will debunk unintended consequences and reject ineffective ideas.
Benefits of a steady flow of remuneration
Authors’ rank in the content chain must be upgraded. We cannot lower the value debate to a negotiation between intermediaries, publishers on one side, distributors on the other. A new directive on copyright is the opportunity to strengthen citizens’ rights at both ends of the creativity spectrum, authors at one end, audiences at the other. Contractual relationships between musicians and record labels, actors and film producers, journalists and newspapers, photographers and magazines, writers and publishers must be reviewed, rebalanced and uniformized in the digital single market. Royalty distribution must become clear and fair. It must also be accelerated; in the digital age, artists should not wait years to be paid. The articles 14, 15 and 16 of the proposal are first steps in that direction. More will be required.
Simplification is a must. Authors’ remuneration is a much too complicated affair. The Internet promised to disintermediate value chains and speed up flows of content and counterflows of money. It can and must do better for two reasons. First, for the sake of economic efficiency. The tremendous number of stakeholders between authors and audiences, not only publishers and distributors, but also agents, lawyers, accountants, collectors and regulators must be paid by the audience, one way or another, before the balances come into the creators’ pockets. Too little, too late. Then, for the sake of sound regulation. A fundamental principle of law is that everyone is presumed to know and apply the law; this principle is only effective when the law is understandable by every citizen, surely in this case when every citizen has the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement. If we want to enforce a copyright policy, we must keep it simple. If we streamline remuneration flows, they will be understandable, applicable, and acceptable.
Technology is the enabler. All intermediaries of the content chain are “technology” companies. The printing press created the publishers, the phonograph led to the record labels, the internet shaped the digital service providers. Authors use technology to create; word processors, cameras or computer aided design. Audiences rely on technology to access content; smartphones, tablets or laptops. Technology amplified distribution, it can streamline remuneration to nurture creation. Progress has been made. Content recognition mechanisms allow to take down unauthorised copyrighted works or to have their rightsholders participate in the generated revenues. Distributed ledger technologies and artificial intelligence are currently tested to develop fair royalty management in real-time. The arteries are strong, the veins can be strengthened and feed the authors at the heart of creation.
One step forward, two steps back
If we take one step forward, with Chapter 3 of the proposal, and two steps back, with the current wording of Articles 11 and 13, we could make progress but then experience events that cause us to be further behind than we were when we made the progress.
The seed of the solution is in Article 13: “Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightsholders through stakeholder dialogues…”. That was also the plan of the Commission: “A structured stakeholder dialogue will be launched… The discussions will explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age”.
Protecting authors’ rights is appropriate. The stakeholder dialogue must take place — not to argue, but to solve. The Commission, Parliament and Council could agree on mandatory sectorial negotiations with obligation of result. They could be followed by a fundamental revision of the European copyright policy for a truly single digital market. Then, authors’ rights would be protected for the greater good of the audiences. Europeans started to regulate copyright more than 300 years ago. As William of Orange, said: “Hope is not necessary to engagement, nor success to perseverance”. We are not giving up.
