Centre for Intellectual Property Policy & Management

Symposium 2009

From Left to Right Prof. Thomas Lange (Dean of the Business School), Prof. Ruth Towse (Business School) and Joly Dixon (Chairman of Strategic Advisory Board for Intellectual Property Policy) in the Executive Education Suite

CIPPM Symposium 2009
Friday 25 September, 2009
Executive Education Suite, Executive Business Centre

Symposium on Copyright, Contracts and Creativity

The Symposium on Copyright, Contracts and Creativity was one of the opening events at the Business School’s new Executive Business Centre and took the form of an all day meeting on 25 September, 2009. It was organised by Professors Martin Kretschmer and Ruth Towse of the Centre for Intellectual Property Policy & Management (CIPPM), with financial support from the university. The lecture theatre and the communal space proved very suitable and provided ample opportunity for socialising – always important at such a meeting. The topic is one of the areas for research selected by the Copyright Expert Panel of SABIP (Strategic Advisory Board for Intellectual Property Policy), of which Ruth is a member, and Martin and co-authors Richard Watt (University of Canterbury, NZ) and Estelle Derclaye (University of Nottingham and a SABIP CEP member) have been commissioned by SABIP to investigate the literature on this subject and to make suggestions for further research. The Symposium therefore aimed to provide a forum for discussing problems with copyright contracts of primary creators especially for digital use and, specifically, how academic research could be undertaken that would provide objective information for policy-making on copyright law.

The Symposium was attended by over 50 people from a broad spread of interest groups – professional organisations of creators, policy-makers, a High Court judge, lawyers and academics from a number of universities with various backgrounds. It was opened by the Dean of the Business School, Thomas Lange, Martin and Ruth (speaking about the role of CIPPM and the role of economic and legal research) and Joly Dixon, Chair of SABIP. The keynote talk was given by Rob Kirkham, Head of Copyright Contracting BBC Vision, who spoke of the fundamental importance of creativity to the BBC and the sheer volume of contracting activities (in 2007/08 the BBC issued 305,000 contracts to contributors for in-house programming alone). Contract concerns of the BBC include that the public expects to have access to archive material but that rights clearance often presents considerable problems.

Three panels of experts on contracts and copyright from professional organisations of journalists, illustrators, photographers, film directors, composers and songwriters and featured artists provided the core information about the problems experienced by creators. A final panel dealt with research problems – what can be done and what problems there are; a specific issue is that there is very little previous research on this topic, particularly by economists (though economics of contracts is a major topic), and the literature is sparse. This makes creators’ contracts and copyright an interesting area for new research and for collaboration between academics and practitioners.

Research has several prior requirements, the first of which is whether there are general issues. The reports of the range of creators' experience confirm that there are indeed common contracting problems faced by all creators:

In the UK, creators are routinely required to waive their moral rights in contracts.
Creators are routinely required to sign contracts that assign all their rights to the publisher or producer (meaning the enterprise or organisation that publishes and distributes their work) and if they do not comply, others are found who will comply, especially young creators who need to break in.
Contracts dealing with copyright are often poorly drawn up and cover every potential use in a blanket manner. Contracts for digital use are just bolted on to standard ‘analogue’ contracts and do not make provision for additional payment.
Underlying these problems are the weak bargaining position of individual creators who are treated in contract law as being on equal terms with the publishers and contract law predominates.
Collectively negotiated rates are one way to overcome this yet the UK competition authority frowns on recommended rates, and creators themselves do not trust collective licensing deals.
Contracts are excessively complex and are costly to administer (the BBC experience with rights clearance for the BBC Archive and the iPlayer service being evidence of this). Enforcement in court is costly and difficult for creators.

These problems echo those on fees and other payments to creators that are unconnected to copyright that are well known from research on artists’ labour markets; they are universally characterised by excess supply of creators and performers, and by emphasis on superstars with bargaining power while the rest have to put up with much less. There is the wider problem therefore of the economic and social status of artists and what law-making or other state intervention can do to remedy the situation. Copyright law has to be compatible with contract and competition law and that raises questions of how change to copyright law alone can make a difference.

The economists taking part in the Symposium raised several questions about the purposes of copyright law – is it intended to provide economic incentives (what economists call efficiency arguments) or to provide a fair distribution of income between authors and publishers (equity) and, indeed, are these compatible aims? There is also the question of what research on these points is useful and feasible. A compilation of the issues is only the start, it does not in itself constitute research; a research problem has to be formulated and tested with evidence brought to bear. In relation to copyright, what we would really like to know is what difference it makes to contracts and whether it fulfils the purposes of the law. That cannot be researched directly without comparing to some other ‘counter-factual’ situation – hence the interest on the part of researchers in ‘with’ and ‘without’ and ‘before and after’ situations. There has been more success in researching the factual situation relating to the distribution royalty payments and other remuneration (equity) than the fundamental question of the incentive copyright provides (its efficiency). That also needs to be weighed against the costs of administering the system and who bears those costs. The Symposium offered some intriguing possibilities that academic researchers will endeavour to pursue further.