reviewing Gowers part 1

Reviewing Gowers : Part 1

The Gowers Review of Intellectual Property is finally out, and an exceptionally unrewarding read it is too for photographers. If you haven't read it EPUK's 'What the Gowers review means for photographers' will save you the trouble. Photography does not

get mentioned anywhere within his 146 pages except within the appended submissions from the NUJ, AOP, Redeye plus a few of our natural predators way up the food chain.

This oversight probably matters a great deal to us if not to him, since his report is likely to form the basis for imminent changes to UK & EC copyright law that will define our working lives for the next couple of decades. His review was an opportunity to address some of the shortcomings of the 1988 Copyright Designs and Patents Act as it applies to us. This opportunity has now not only been lost. Some of Gowers proposals threaten to make matters even worse. But the most damning aspect is his utter failure to understand what the hell is going on, albeit with the alternative and rather worse explanation that his posture is entirely deliberate.

Gowers only gets as far as the second sentence of the first paragraph of the foreword before losing the plot.

'The ideal IP system creates incentives for innovation, without unduly limiting access for consumers and follow-on innovators. It must strike the right balance in a rapidly changing world so that innovators can see further by standing on the shoulders of giants.'

What's wrong with this statement is that within the unmentionable field of photography, the giants habitually kneel on the innovators' necks.

Although Gowers talks about distinguishing between patent law and copyright he never manages to deconflate the two. He sees them as basically fulfilling the same purpose in different arenas, setting a framework for the welfare of business and public benefit. In so doing, he turns a blind eye to all that has proved disastrous in the 1988 Act.

Even before the 1988 CD&PA came into force, publishers were trying to find ways to revise the prospect that by default authors would own the copyright of their own work. The Act's equitable if already diluted intentions were rapidly subverted by small grey lawyerly 4pt. print buried in purchase orders, commission contracts and illegal copyright assignments on the backs of cheques.

At first only the largest publishers dared try these kinds of tactics, confident of their ability to dictate terms to suppliers who would face an uncertain future without their business. Twenty years of consolidation, aggregation and technology have completed the rout, using brute economic power to sideline the 1988 legislation.

This has close historic precedents in the Inclosure Acts. In the mid-19th century that legislation had been intended as socially progressive. Parliament enacted, it thought, a means to improve the impoverished housing standards and farming efficiency of crofters and commoners. Instead it was seized upon and perverted toward the seizure of vast tracts of common land by landowners that became The Clearances. For the most part, the erstwhile occupants ended up homeless and disposessed instead of living in the better houses and efficiently working tenanted fields that landlords were required to provide in return. Government never bothered to police these unintended consequences. Although Commissioners were supposed to review the process, the economic and political power of the landowners was overwhelming and it was by then too late. Subsistence farmers migrated en masse to provide labour in newly-industrialised mill towns. The open landscape of the country changed forever, parcelled into hedged, fenced and walled plots of private property.

This time around it is intellectual property that is being annexed and coralled. Individual creators nowadays face a stark choice when dealing with almost all UK publishers : 'hand over your rights for nothing or never work for us again'. This is now standard business practice that has spilled across every sector. Government itself does it, its agencies departments and quangos do it. That respected flagship of national culture the BBC regards it as a duty to the licence-fee paying public to strip its contributors of their IPR even when donated. Newspapers have tried to insist that any use of an agency or library pic entitles them to perpetual part ownership. Every little PR company tries it on. And why wouldn't they, if they can? It's good for their balance sheets to own what they can resell for no extra cost, and keep the profit.

This is just the same temptation that 19th century landowners succumbed to. Gowers, just like the Inclosure Comissioners before him, can see little problem with this, or maybe regards it as the price of progress.

I will return to that and how it has come about in the next part of this blog, but the shabby truth is that from the point of view of individual creators the 1988 Act may as well not exist. An author's copyright is worth nothing if that is universally the mandatory price on offer. The negotiating power of ownership is entirely cancelled if the 'buyer' has the power of seizure through market forces. In other areas of law, this would be regarded as blackmail, extortion, or at the very least an unfair contract made under duress.

Just stop and think what this means. If you had the capability to - quite legally - demand all republishing rights whenever you bought a CD, DVD, magazine, book or computer program you'd probably do it. In a very short time Sony, Paramount, the BBC, Microsoft etc would be bankrupted by cheaper competitors who'd done this and avoided all the creation costs. This proposition is forbidden under copyright law - as the piracy and counterfeiting that so vexes corporates and preoccupies Gowers - only because there is no gun you can hold to the head of a large rich company. However corporate offers-you-cannot-refuse are now the daily experience of sole creators.

Gowers has totally ignored the wholesale corporate mugging that proceeds from this imbalance. People are being driven off their own property and out of business as a result. This is arguably Darwinian selection of the fittest, but fit for what? Photographers who surrender copyright on such terms are for the most part the least committed, the least experienced, the most naive and vulnerable, the least professional. Ask any photographer who has survived more than a handful of years and you will invariably find they have understood that ownership of their work is their business capital, their brand, their creative legacy.

Yet Gowers' considered view is that broadly the UK IP system is 'fit for purpose in an era of globalisation, digitisation and increasing economic specialisation'. This actually means it is fit for unbridled exploitation, aggregation of monopoly and creating landless jobbing serfs out of individual creators. How exactly does any of this this facilitate the 'quality of innovation' he claims to stimulate and sustain? Like many accountants before him, he has equated 'cheapest' with 'best'.

The one thing Gowers could and should have done is to have moved toward the European model based on authors' rights where copyright cannot be sold and moral rights cannot be waived. This certainly does not cancel the market advantages possessed by powerful corporations but it does go some way to counterbalance power with equity. I can't even find a mention let alone a consideration of the idea in his review.

He has no excuse because protests and suggestions regarding authors' rights certainly feature heavily in the submissions from photographers and our representative organisations. I know this because I was one of the photographers who provided input, especially to the NUJ submission. Gowers was tasked to formulate a strategy to ensure the health and wealth of UK's creative economy. How then can he so blatantly disregard the creators who actually do the work?

At the same time, the IPR of corporates are sacrosanct. Concerns about duration and piracy and counterfeiting and ease of legal retribution are central to his deliberations.

Gowers would no doubt airily reply that the same law applies; that the rights of the individual creator are no different to those of the multinational publisher. But in practice it hasn't, it doesn't, and it will not work like that. Unlike every other law I can think of, this one only adequately provides for the interests of well-heeled monopolists operating in packs. He has started from a caricature position that divides the world into creators and owners of IPR vs. consumers. Starting from there, it's easy to see how he has got to where he did, but the world really isn't like that anymore. Existing legislation is already a terrible fit with 21st century realities as far as photographers are concerned. Gowers was perhaps a last chance to alter course. It would have been nice if he'd glanced out the windscreen instead of listening to his overweight passengers.


The next part of this blog will consider where we are, the contagious cultural sickness now embedded at the heart of copyright, and the unforseen consequences likely to flow from Gowers.


IP rights

Photography is the issue now but with the pace of change online it next will be podcasts, videos, online tools, etc etc As technology allows new ways of creative development we will find that, as always, the legislators cannot keep up.

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