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The IPG's academic and policy correspondent Richard Fisher will regularly provide updates on policies which affect the publishing industry. These updates can be found below.
Publishing and Policy update—February 2017

Intellectual Property

Last month’s Academic Publishing Commentary gave details of two important personnel moves within the elevated realm of the international IP regimes, which for the convenience of non-academic IPG members I repeat in abbreviated form below.

Firstly, Maria Pallante is to be the new President and CEO of the Association of American Publishers, in succession to Tim Allen. Ms Pallante’s background is in IP, most recently as Register of Copyrights at the Library of Congress. The coming year will also see the departure of Maria Martin-Prat, Head of the Copyright Unit in the European Commission Internal Market Directorate General. Dr Martin-Prat will evidently remain with the Directorate General in a new capacity. The departure within a few months of arguably the two most important figures in global IP only compounds the sense of uncertainty that surrounds so many publisher-related IP issues right now.

Much closer to home, the British government has updated its guidance on the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CPDA). Many IPG members and other publishers are potentially impacted by this repeal, and the revised guidance can be found here. The update reflects the fact that we have now passed (as of 28 January 2017) the depletion date for stock affected by the repeal of section 52, and provides further clarification on the changes to Schedule 1 of CDPA that ensure that certain artistic works made before 1 June 1957 are entitled to the same term of copyright protection as those made after this date. From 28 July 2016, all types of artistic works were granted copyright protection for the life of the creator plus 70 years; this included industrially manufactured works which had previously been limited to 25 years under the now-repealed section 52 of CDPA.

As always, I append my non-lawyer disclaimer to this note, and recommend that concerned IPG members take proper legal advice as appropriate for their specific content proposition: representatives of relevant legal entities will be present at the upcoming IPG Annual Spring Conference. Those wishing to contact the Intellectual Property Office directly may do so at Section52CDPA@ipo.gov.uk.

Richard Fisher
IPG Academic and Policy Correspondent
1 February 2017
Publishing and Policy update—January 2017
Brexit
Prime Minister Theresa May’s speech at Lancaster House in London on Tuesday, January 17th has been widely reported as one of the most important statements by any British leader on any subject since 1945. It certainly seems to mark the end of what has been seen on both sides of the Leave/Remain argument as a period of relative policy calm before the Brexit storm. The clear message that the United Kingdom is to leave the European Single Market is not one that the majority of IPG members will necessarily welcome, but at least colleagues can now begin to visualise the shape of the new trading order that they will (at some as yet undefined point in the future) encounter. For a concise, lucid and I think fairly objective summary of where matters stand as of January 2017, I would recommend Tom Moseley’s succinct commentary for the BBC
As I write the Prime Minister is in Davos, Switzerland, at the World Economic Forum. By some strange oversight your policy correspondent was not invited to this gathering, and nor (I suspect) were many other IPG members, not least as the cost of attending (estimated to be at least £30 000 per head) would at one stroke cancel out the annual travel budgets of most small-to-medium sized British publishers. Mrs May is now commencing an extended sequence of discussions, both formal and informal, aimed to persuade diplomats, trade lawyers, international business leaders and others of the role that she and her government wish the UK to play in an emerging, and highly uncertain, new world order. There is simply a vast amount to sort out over the next few years, and to that extent Mrs May’s Lancaster House speech is certainly not (to borrow a famous phrase from one of her greatest predecessors) the end, or even the beginning of the end, but it is perhaps the end of the beginning.
Still, all this may be small beer compared to the potential impact of what is happening in Washington DC this Friday (20th January), and the inauguration of Donald Trump as the 45th President of the United States. In the immortal words of that distinguished Canadian rhythm combo the Bachman Turner Overdrive, You Ain’t Seen Nothin’ Yet…
Richard Fisher
IPG Academic and Policy Correspondent
19 January 2017
Publishing and Policy update—December 2016
Modernising the European Copyright Framework
The complexities of the British copyright regime at this extraordinarily delicate moment in its long history will be evident to many IPG members. The latest development in this sphere has been the formal consultation launched by the UK Intellectual Property Office on the most recent raft of proposals for the (European) Digital Single Market.
Sarah Faulder and our friends at the PLS (of which of course the IPG is now a constituent member) have helped to prepare what is effectively a joint response from the PLS, the Copyright Licensing Agency, and the Authors’ Licensing and Collecting Society. This response is deliberately restricted to those issues arising with a direct impact on collective licensing, and may be accessed here.
This response is but one from a number of British-based central agencies each with a legitimate stake in the future of copyright. The profusion of such bodies is, of course, only one of the many challenges confronting publishers and other organisations within the creative sector when attempting to influence policy.
Richard Fisher
IPG Academic and Policy Correspondent
15 December 2016
Publishing and Policy update: Part 3—November 2016

Section 52: The Copyright, Designs and Patents Act 1988

Many IPG members will already be painfully aware of the repercussions of the Repeal of Section 52, announced in July. A classic example of the Law of Unintended Consequences, something devised very largely at the prompting of Swedish furniture and design organisation Vitra has spilled over into numerous areas of creative endeavour, including publishing and the visual arts.

On 29 November, the government’s Intellectual Property Office published its response to the technical consultation on the changes to Schedule 1 of the Copyright, Designs and Patents Act 1988 and the Duration of Copyright and Rights in Performances Regulations Act 1995. It informs us that paragraphs 5 and 6 (1) of the former, and Regulation 16 of the latter, will be amended as planned. Regulations 24, 25, 34 and 35 will be repealed as planned, and transitional provisions will be provided for their repeal. The changes will come into effect on the next common commencement date, 6 April 2017.

In response to very considerable levels of public concern around this legislation, the IPO has now released a set of guidance protocols for affected industries, including publishing. While these are helpful in themselves, they do not, I suspect, provide the clarity that many have sought. They state that (as IPG copyright experts will know) ‘Fair dealing is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing—it will always be a matter of fact, degree and impression in each case.’ And so there is inevitably an element of ‘suck it and see’ around the actual implementation of the new legislation.

As ever, all IPG members unsure of their ground in this complex area are advised to take proper legal advice from qualified persons (which I am not). Incidentally, the fortunes of independent publishers may have been impacted somewhat by this legislative change, but we have to recognise that our experience has been a mere bagatelle compared to that which has confronted the replica furniture industry, as this sparkling recent piece from Anna Tims in The Observer makes clear.

Richard Fisher
IPG Academic and Policy Correspondent
30 November 2016
Publishing and Policy update: Part 2—November 2016
Children’s Media Literacy: the Ofcom Report

Regular readers of the IPG Academic Report will know that I am quite a fan of the various reports on digital literacy released by the UK national media regulator, Ofcom. These reports are a statutory requirement of Ofcom under the Communications Act of 2003, and they contain a great deal of market information of real value to IPG members, in their various capacities as publishers, citizens and, in this latest iteration, parents.

Children and Parents: Media Use and Attitudes 2016 was released by Ofcom last Wednesday (16 November) and examines children’s media literacy. The report provides detailed evidence on media use, attitudes and understanding among children and young people aged 5 to 15, as well as information about the media access and use of young children aged 3 to 4. The report also includes findings relating to parents’ views about their children’s media use, and the ways that parents seek—or decide not—to monitor or limit use of different types of media.

The report runs to 232 pages, but there is a very convenient executive summary of themes and findings which every UK-based children’s and educational publisher really ought to assign to staff across almost every publishing function. Of course, there is always a health warning attached to the statistics provided with such reports, and in such a fast-moving media environment official publications can give an impression of permanence to trends and transitions which may be, in fact, very short-lived. Nonetheless, this is a fascinating and powerful document, and one can only wish that the media habits of other demographics were subjected to the same exhaustive treatment. Personally I would love to see a similar survey of the cohort aged 23 to 33, which includes graduate students and postdocs. In the meantime, let’s value what we have, which can be accessed in full here.

Richard Fisher
IPG Academic and Policy Correspondent
21 November 2016
Publishing and Policy update: Part 1—November 2016

Richard Fisher updates members on an important European ruling on ebook lending

Last week the Court of Justice of the European Union (hereafter ECJ) issued an important ruling on library ebook lending. The case in question had originated in the Netherlands and been appealed to the ECJ in 2014: it put the Vereniging Openbare Bibliotheken (Dutch Public Library Association) against the Stichting Leenrecht (Dutch Lending Rights Foundation). At stake was whether, ultimately, ebooks could be lent by libraries in the same way and on the same terms as physical books. Did what American lawyers would call the ‘First Sale’ doctrine apply to digital files, as well as to printed books, compact discs and DVDs?

In essence, the ECJ has ruled that ‘yes, they can,’ subject to certain conditions. Various representative bodies active in publishing have rapidly made their responses clear: the Society of Authors and the Chartered Institute of Library and Information Professionals have both welcomed the decision, in broad outline, whilst the Publishers Association and the European and International Booksellers Federation have expressed unease, with the EIBF calling the ruling “very dangerous”.

However, as so often with such rulings (apart from the minor issue of the Brexit context of the whole) there are considerable shades of grey, and IPG members might welcome the official EU summary of the ruling itself. This states that “A 2006 EU directive concerning, among other things, the rental and lending rights in respect of books provides that the exclusive right to authorise or prohibit such rentals and loans belongs to the author of the work. Member States may, however, derogate from that exclusive right in respect of public lending, provided that authors obtain, at least, fair remuneration. The question that arises is therefore whether that exception also applies to the lending of electronic books under the ‘one copy, one user’ model.

“In today’s judgment, the Court of Justice first notes that there is no decisive ground allowing for the exclusion, in all cases, of the lending of digital copies and intangible objects from the scope of the directive. That conclusion is, moreover, borne out by the objective pursued by the directive, namely that copyright must adapt to new economic developments. In addition, to exclude digital lending entirely from the scope of the directive would run counter to the general principle that a high level of protection is required for authors.

“The Court then goes on to verify whether the public lending of a digital copy of a book under the ‘one copy, one user’ model is capable of coming within the scope of Article 6 (1) of the directive. In that respect, the Court notes that, given the importance of the public lending of digital books, and in order to safeguard both the effectiveness of the exception for public lending referred to in Article 6 (1) of the directive and the contribution of that exception to the promotion of culture, it cannot be ruled out that that article may apply where the operation carried out by a publicly accessible library, in view of, inter alia, the conditions set out in Article 2 (1)(b) of that directive, has essentially similar characteristics to the lending of printed works. That is the case as regards the lending of a digital copy of a book under the ‘one copy, one user’ model. The Court therefore holds that the concept of ‘lending’, within the meaning of the directive, also covers lending of this kind.

“The Court also notes that the Member States may lay down additional conditions capable of improving the protection of authors’ rights beyond what is expressly laid down in the directive. In this case, the Netherlands legislation requires that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the EU by the holder of the right of distribution to the public or with that holder’s consent. According to the Court, such an additional condition must be considered to be in accordance with the directive.”

That last pair of sentences is rather important, not least as it raises the thorny legal question of the ownership status of electronic materials held in libraries, and whether a library has bought an ebook in the same (legal) way as it has bought a printed book. The ECJ—guaranteeing further returns for the lawyers involved—did not rule at all on whether the Dutch libraries had bought the ebooks they wished to lend in a manner that would indeed be ‘in accordance with the directive’, and the case will now return to the Dutch lower courts. It would seem—with my usual non-lawyer disclaimer—to render some of the reactions quoted above a tad premature.

Within the UK the Digital Economy Bill continues to make its way through Parliament, and evidently this ruling will ‘inform’ our own domestic legislation. For IPG members, there are clear implications if this ruling—which, as Neil Denny and others have argued, runs counter to European Directives on both Public Lending Right and InfoSoc—proceeds without amendment or, at the very least, clarification. I don’t think anybody is particularly happy about the current status of public library elending protocols, in a context where the public library service is itself facing very severe, some might say existential external challenges. The fact that the UK is, by most measures, comfortably the largest ebook market in Europe but will in due course be exiting the determining jurisdiction is but the first of a myriad of Brexit legal ironies to come. I will, of course, report back with further developments, and further responses, as and when they emerge.
You can download this document here.

Richard Fisher
IPG Academic and Policy Correspondent
14 November 2016
Publishing and Policy update—October 2016
In the first of a regular series of Policy briefings for IPG members, Richard Fisher looks at a number of major developments to have taken place during the first 100 days of Theresa May’s government

‘Always Leave Them Wanting More’ is one of the oldest adages in showbiz. When the IPG board asked me to take on a specific ‘policy’ brief, our chief executive Bridget Shine and I agreed that a second regular helping of musings—in addition to my monthly academic publishing report—would almost certainly be de trop. IPG members might, however, find helpful occasional pieces of analysis of specific legislation or policy developments, and what follows, written just over 100 days into the life of our new government, is the first of these. As with my monthly academic report, if there are specific policy topics or issues that members would like to see covered, please don’t hesitate to contact me via Bridget Shine and we will do our level best to oblige.

Brexit: the end of the beginning
Last Friday, news emerged that Nissan, the giant Japanese car manufacturer, would retain its very significant presence in Sunderland, thus guaranteeing continued employment for around 7,000 people directly and rather more indirectly. The exact nature of the deal struck between Business Minister Greg Clark, the rest of the government and Nissan remains shrouded in mystery, and much weekend newsprint and airtime was devoted to speculating exactly how much the government had had to guarantee, in terms of tariffs, trading deals, privileged negotiating positions or whatever, to ensure that Nissan continued to place its faith in the UK as an investment destination. By definition this will not be the last such exchange, and as the politics of Brexit continue their fascinating, often entirely unpredictable trajectory, prompting most recently the Heathrow decision, the resignation of Zac Goldsmith and the forthcoming Richmond by-election, in which the nominally independent Mr Goldsmith seems to be the standard-bearer for a newly united Popular Front of the right and yet might still lose, interested observers like myself can only alert readers, and in all honesty no more than that, to some of the governmental and policy challenges that will impact British independent publishers in the months and years to come.

The splendid Wonkhe blog—one for the true policy anoraks amongst you—recently identified at least half a dozen distinct strands that the May government will be addressing, in addition to the fundamental terms of Brexit itself, and each is bound to have implications for our sector in some form or other.
1) Reform of the Immigration system
2) A new, interventionist, industrial and commercial strategy, or sets of strategies
3) A new post-Brexit trade and export strategy
4) Adjustments to fiscal policy and, potentially, taxation, whether individual or corporate
5) A new post-Brexit foreign policy
6) A renewed emphasis on social mobility, especially in education, skills and training.

IPG members are small and medium-sized enterprises, employers, taxpayers, importers, exporters, owners and custodians of intellectual property, trainers and nurturers, and—for some perhaps above all—concerned members of the citizenry. I have written elsewhere that as a cohort the IPG was and is perhaps the most pro-Remain of any such SME grouping in the country, and that far and away the biggest challenge confronting publishing is its attitude towards the 52% who voted Brexit, for whom on the whole we don’t publish, to whom on the whole we don’t sell, and by whom on the whole our jobs are not taken.
So we do now have to embrace the new world that is emerging, contribute positively insofar as we can to the direction that new world is taking, and continue to make a significant noise on behalf of the creative and educational industries and their massive inputs into UK plc. For academic publishers, who have always (for understandable reasons of language) been more generally internationalist than specifically European in focus, Brexit arguably offers a reversion to a much older pre-EU tradition of trade. For consumer, trade and educational imprints, focussed more largely on the UK domestic market, as the recent Harbottle & Lewis Independent Publishing Report made clear, the implications of Brexit may perhaps be felt more deeply in issues of employment law and migration, in the cost of certain imported professional publishing services and supplies, and in any changes to fiscal and macro-economic policy necessitated by the inevitable short-term economic upheaval that is to come. (And whether pro-Brexit or con-, the one thing almost every business commentator seems to agree upon is that the short- to medium-term ride will be a bumpy one).

There is, of course, one cornerstone of our industry where the Brexit vote has potentially huge and quite rapid consequences for all IPG members, and that is Intellectual Property. While reporting on this, I must also issue a disclaimer that I am not in any shape or form a qualified lawyer (although married to one), and IPG members seeking proper guidance on specific legal questions arising are advised to seek appropriate professional guidance, with which the IPG executive can of course assist.

Brexit and Copyright: A Rapid Update
In May 2015 the European Commission formally issued A Digital Single Market Strategy for Europe, and this fundamental statement identifies no fewer than 19 specific priorities for action. The roadmap extends not just to a new Copyright Package but to a review of the Satellite and Cable Directive, revision of the e-Privacy Directive, revised VAT regimes (always a sensitive issue for publishers), and a whole host of other things, fundamentally trying to ensure that all EU citizens enjoy similar digital access to similar digital things. It was the latter that lay behind a further 2015 EU Regulation on cross-border portability, making it possible for an individual to access, say, his or her Spotify account anywhere within the EU.

On September 14 of this year, a further major EU Communication followed—Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market—which extended the current Country of Origin (COO) principle from linear content like satellite channels and cable packages to non-linear services like online games and music streaming. This matters because the core COO principle that content may be broadcast from one EU member state to another without restriction has inter alia the potential to cut across some historic territorial rights presumptions and, going forward, UK IP stakeholders are now very worried that in a post-Brexit world such COO principles will actively mitigate against British participation, if there is a requirement on broadcasting or publishing organisations to be established and headquartered within an EU member state. Those IPG members working with, say, online games publishers, whether based in the UK or continental Europe, will need to map this legislative minefield with particular care.

The other major related proposal is the Directive on Copyright in the Digital Single Market, a development I have flagged already in an IPG Academic Update but of considerably more than purely academic publishing import, since it potentially removes cross-border rules on copyright for non-commercial use—including work carried out in schools, universities, research organisations and online teaching environments—for large swathes of cultural and scientific activity within the EU.

Not all IPG members may be aware that EU Regulations are immediately binding upon member states, but Directives are not, and it certainly seems likely that the impacts of the latter are more Brexit-dependent than the former. Even prior to the Brexit vote, senior colleagues from the PA, ALPSP, PLS and other empowered industry bodies were doing their level best to achieve a series of outcomes that are fair to all concerned parties and rights holders. All publishers, of whatever size, hue or political stance, are aware that the general climate in western policy-making around Intellectual Property, whether in Brussels, Washington DC or London, is not at present particularly favourable to their concerns. It is also true to say that we have not always helped ourselves, and that there is a danger that a policy model emerges in which Elsevier or the Disney Corporation are seen as somehow ‘representative agents’ and the kinds of much smaller organisations that the IPG represents are often under-articulated, and certainly under-valued.

These trends have been confirmed by recent developments in the US, following the installation of Carla Hayden as the new Librarian of Congress, the first woman and the first African-American to take up the most important librarian position in the world. The Copyright Office sits in the Library of Congress, and among Dr Hayden’s first moves was the effective demotion of Maria Pallante from Register of Copyrights. Many British publishers and IP lawyers had long regarded Ms Pallante as a distinct ally and fundamentally a ‘friend to copyright’.

Anyway, all this just skims the surface of a multiplicity of industry ‘moves’ in the IP domain, and for those needing more detailed information on some of the Brexit implications I would refer you to the excellent blog post from Alison Harcourt of the University of Exeter on the likewise excellent LSE media blog, always a good source of interesting news and speculation, especially for those working at the more overtly visual end of our business.

Doubtless future IPG Policy Updates will return to these themes, as they will to questions of employment law and migration, trade and tariffs, compliance and fiduciary regulation and a whole host of other gritty things. Many of these, I fully appreciate, do not represent the kinds of questions that you all entered publishing purely to answer, but the lack of some kind of background knowledge of them can represent a genuine business risk.
You can download this document here.

Richard Fisher
IPG Academic and Policy Correspondent
31 October 2016