Not only is copyright central to publishing success, but it is also a notoriously tricky subject. Get it right and everyone’s happy; get it wrong and there will be consequences. Copyright is more than just a matter for legal teams or academics. It is the subject of a continuing and divisive debate within the publishing world. Copyright offers the publishing industry an element of protection, and publishers are keen to avert anything that could damage those protections.
So why does copyright remain such an elusive topic across the industry? The answer lies with the idea that copyright risks are not an immediate problem, are too hard to predict, or are something that affects other industries. Admittedly, copyright is just one issue on a long list of challenges for publishers today, but that doesn’t mean the industry can ignore it.
While publishers may not be able to control legal changes to copyright, they can and must stay vigilant and involved.
The risk is that if publishers become too complacent, they will become more vulnerable and less equipped to face an increasingly unpredictable landscape. When one is dealing with issues of copyright, conditions can change in the blink of an eye: a hostile judicial decision could suddenly be published, or unfavorable new legislation could be passed. Unfortunately, even if these changes in the law are challenged later, there can be a sense of too little too late. The damage has been done, and there’s no going back.
Here are three examples from around the world of situations where copyright has worked against publishers and other rightsholders.
#1: Insufficient legislation
When Canada’s Copyright Modernization Act was passed in 2012, the country’s publishing industry (not to mention its cultural heritage) received a serious blow. The root of the problem was that the legislation didn’t sufficiently reflect the traditional “balance” of copyright interests (weighing the rights and needs of BOTH users AND copyright holders and maintaining the balance between them) and gave too short shrift to the interests of copyright holders. As a result, the new law tilted heavily in favor of academic (and maybe other) users by providing greater limitations on copyright and the revenue of Canadian educational publishers and their authors dropped sharply. Among the casualties was Emond Publishing, which ended its high-school publishing program. Its president summed up the situation as follows: “This is what falling off a cliff in the publishing business looks like.”
#2: Potential IP changes
The Australian government asked the Productivity Commission to investigate the country’s IP infrastructure and recommend how to “improve the overall wellbeing of Australian society.” When faced with the prospect of potentially damaging proposals, the publishing community united to mount a high-profile counter campaign.
#3: Licensing revenues stripped from publishers
In a supranational union such as the EU, judicial decisions can have an impact far beyond any one country’s borders. That impact can stretch to all 28 of the EU’s member states, and will almost certainly have some kind of effect in each one of those member states in which the same situation exists as the one before the court.
An example of this came in the case between Hewlett-Packard and Reprobel, a Belgian copyright collective licensing organization. In October 2015, the Court of Justice of the European Union (CJEU) ruled that Reprobel was no longer permitted to split money from levy schemes (which are like involuntary licensing systems imposed by the government) between publishers and authors. The court held that under the language of the continent-wide European copyright directive, publishers cannot be considered rightsholders entitled to any compensation under such schemes.
Of course, the effect of this holding applies not only to Reprobel’s distribution of levy money but also to similar systems that are administered by several other collecting societies within the EU. The decision came as a huge shock to many publishers and their trade associations, upending 40 years of practice, disrupting the basis of collective licensing in many European countries, and potentially damaging publishers’ licensing revenues.
The wider impact of the CJEU ruling was felt in April this year, when the German Federal Supreme Court found VG WORT, a local collecting society, to have acted unlawfully in the distribution of money from the German levy scheme to publishers.
Because only limited opportunity exists within the legal system to change these decisions from these highest courts in their respective jurisdictions, publishers are being forced to look for other ways to restore something of the preexisting status quo. One obvious alternative is to seek from the relevant legislatures changes in existing statutes, but that would involve a huge amount of work. Publishers in some countries are taking the beginning steps in this direction, but there is no single, clear path to a resolution that will please all.
The upshot is that collecting societies affected by these rulings have withheld further payments to publishers and other collecting societies. It has also been suggested that societies will have to recover past payments to publishers. If this were to happen, the financial repercussions could be immense.
Place copyright center stage
Clearly any further changes to copyright law or any new legal rulings can have the kind of major impact on publishers that these two recent court decisions (and the Canadian copyright law changes) have had. While publishers may not be able to control these changes, they can and must stay vigilant and involved. Remaining engaged with what is happening right now – for example, the scheduled government review of the Canadian copyright law changes in 2017 – allows publishers to understand how these changes could affect their businesses and to take steps, both alone and in concert with others, to influence how these changes can be effected (if positive), ameliorated (if negative), or otherwise addressed.
Publishers need to stay up to date with changing copyright trends, just as they would any other market trend. It might be tempting to think “it won’t happen to me”; but if it does and you’re not prepared, you could find it’s too late.