Reflections on the opening panel at CopyCamp

Jane and Chris at CopyCamp2018

Last week we attended CopyCamp held at the Polish Audiovisual Institute in Warsaw and hosted by the Fundacja Nowoczesna Polska (Modern Poland Foundation). It’s a great conference that seeks to be “the place for an interesting, insightful and engaging discussions about copyrights.” What struck me was the range of people who attended the conference but in particular the number of IP lawyers, activists as well as people from the creative industries. The aim to talk about copyright in a neutral, safe space is laudable, but I think experiences suggest that it’s easier to fire shots across the barricades than build bridges. In this post I reflect on my experiences on the conference opening panel which brought together a range of people from across the industry, big tech and education and thanks to Chris for his support, for taking photos and notes and helping write this reflection.  

A few days before heading out to Poland the conference organiser, Krzysztof Siewicz invited me to be part of the opening panel which I must admit filled me with a little trepidation. Taking a look at the list of names will show you one of the reasons why I was probably invited, in the attempt to not have a manel (an all male panel) they wanted at least one woman to provide a female perspective. I was also the only voice representing education. I found the lack of female voices on the panel interesting given the number of women I heard speak to eloquently about copyright issues throughout the two days. Don’t get me wrong the panel was well qualified. However, it would have been good to have greater diversity on the panel and I think many of the women who presented at CopyCamp could have brought a broader perspective to the issues, particularly as many of them were experienced and highly qualified copyright lawyers.
Jane on panel – photo by Chris Morrison

Putting issues of equality aside, the panel was constructed to discuss issues related to copyright reform, in light of the EU Directive on the Digital Single Market which we have posted about before. Inevitably the controversial Articles 11 and 13 were in the forefront of people’s minds. I sit on the UK Intellectual Property Office’s Copyright Advisory Panel and so I am well aware that the creative industries have a very different perspective on the Directive. They see the need regulate the internet and to protect and reward the use of online content. Upload filters and the press publisher’s right are regarded as fair and just reward for the use of creative content. Those representing users and ‘big tech’ tend to take a rather different view, emphasising the need for greater openness and less regulation and it’s fairly rare for there to be a meeting of minds with such polarised viewpoints. So while I had my reservations that we may not solve anything, that doesn’t mean we shouldn’t try to keep the conversation going.

The panel was made up of the following people:

  • Robert Ashcroft (PRS for Music)
  • Marek Kościkiewicz (artist and producer)
  • Anders Lassen (GESAC)
  • Jarosław Lipszyc (Fundacja Nowoczesna Polska)
  • Rafał Masny (Abstra)
  • Marcin Olender (Google)
  • and me – Jane Secker (City, University of London)
Jane and Marcin on panel

To open the panel we were each given a piece of paper and asked to express the three traits that make up an artist. A nice easy ‘ice-breaker’ and in fact it revealed a fair amount of agreement across the panel. We all expressed some honourable traits that enable art to flourish such as the search for connection, truth, freedom. My three traits were ‘Talent, Taste and Beauty’ all of which I realise are highly subjective concepts. Interestingly, very few people at this point mentioned that artists need renumeration or money to succeed. However, of course we all know that the reality is that grinding poverty doesn’t usually create the circumstances where artists will flourish. And while for some, art can be a way of lifting them out of that poverty, in fact very few people ever make a living out of their art, whether it be painting, writing or music. And many people are able to become artists because they have some degree of financial stability, often through inherited wealth.

We kicked off the panel for real with Krzysztof chairing and asking us each a slightly different question to tease out our thinking about copyright and its role in the creative process. The first question was to Rafal, who has a YouTube channel and who spoke about the need for the internet to be free, and how applying filters was really the wrong approach. He felt that meddling with freedom of speech on the internet except in the case of hate speech was problematic. Marek who is also an artist and producer had similar views but felt that there was some disparity with how streaming music platforms remunerate artists and how those such as YouTube work, by relying on advertising revenue.

My question from Krzysztof was “What should we all learn about copyright in the world where “code is law” and our options are enforced by technology?” It gave me an opportunity to talk about the ideas of Lawrence Lessig, in particular Creative Commons and the importance of spreading positive messages about what copyright allows you to do, rather than what it restricts. I also spoke about the need for copyright education so everyone understands their rights. I mentioned digital rights management and how problematic these systems could be and how playful approaches and games could transform ‘copyright training’.

Marcin from Google had a fairly hard time from all sides of the panel whilst trying to emphasise the importance of a free internet. Google sit in an interesting position here, given their commercial nature, but their wide reaching aims to provide access to the world’s knowledge. Some of the representatives from Collective Management Organisations were keen to stress they were not against freedom per se, as Anders explained. He was formerly a journalist who pointed out that freedom was not the same as free beer (I was reminded here of Pomerantz and Peek’s excellent article in First Monday called 50 Shades of Open which explores the language surrounding discussions of openness and freedom). Anders believes copyright is a driver of growth and that copyright exceptions are being misused because companies can use content without paying or negotiating permissions. This led to an interesting discussion about the role of a collecting society in a digital world, with those working for such organisations clearly arguing this has not changed and how selling copyright doesn’t involve atoms, but intellectual creations. Surely you should you always ask before you use someone else’s property?

Robert Ashcroft from PRS for Music was asked to comment on metadata and the value of music usage data – is it equally valuable or more valuable to artists than royalties? Robert pointed out you can’t take metadata down to the supermarket to buy food and while metadata has value, there is a distinction between authors and artists. There was an argument about promotional value and he used the example of radio in the US where it was decided that artists needn’t be paid because they got enough benefit but the song writers do not.

Meanwhile Jarosław was asked how we should fix the internet and spoke about his concerns about privacy online with internet companies spying on you, using your personal data, selling it etc. He felt it was very difficult to consume media in a way that protects your privacy (although Marcin from Google told him no one was spying on him personally) and there is a difference between illegal and wrong. His view was that while piracy is illegal it’s not wrong and he would want to legalise non-commercial sharing of content. I had another opportunity to speak and wanted to mention the idea of a ‘cultural commons’ and our right to a common shared cultural heritage. Rather unsurprisingly that view was met with a slightly dismissive (and I’m paraphrasing here), “it’s ok for you in your university ivory tower with a salary, what about the poor starving artists”.

The panel didn’t solve anything, and I’m not sure it built any bridges despite Krzysztof’s laudable aims. Money dominated the conversation at various points, but also what struck me was how the diverse group used language. This was most telling when the word ‘monopoly’ was discussed. The creative industries resent the use of this word to describe copyright protection, but of course that is what copyright is – it’s the exclusive, state-granted rights of an author to use their work and receive payment. A few people asked me later how I had found the panel and what stuck in my mind was how it was like speaking to people in another language or from a completely different discipline to you. Terminology means different things, language does matter and misunderstandings are inevitable. I like the idea of the copyspeak cards that the Modern Poland Foundation made which encourage use of ‘neutral language’, to enable constructive conversations about copyright.  Perhaps we should have had some on the panel [Ed – interesting thought, perhaps we can return to that later].

But mostly what struck me was the comment made by one member of the panel, from the industry side, that copyright was a human right, and authors should be able to make money from their work. I realise I take a different approach to copyright particularly since I studied CopyrightX, but Labour Theory (copyright is property as a reward for an author’s labour) and this ideology underpinning copyright has shaped the global approach to copyright in a way that favours the industry so powerfully. The users’ rights advocates on the panel were largely espousing the utilitarian view that copyright law is there to incentivise the creation of cultural works. I suspect some of them are also influenced by the ideas of  Welfare Theory, which argues that we should be creating laws that provide the greatest benefit to the greatest number of people, not favouring the few and rewarding the individual. This led me to mention the idea that creative works could be viewed as ‘public goods’ and that our shared cultural heritage that should be available for everyone to use and enjoy. And surely the principle that access to information is a human right must trump the right of the author to be remunerated for the use of their work? Otherwise how would science or the arts ever make any progress?

However, the theory of copyright that strikes me as most helpful when considering why copyright laws exists, is Cultural Theory which argues that copyright laws should foster a just and sustainable culture and is a way of thinking about life, culture and law. The premise of this theory (so well explained by Professor Terry Fisher) is that there is such a thing as human nature and people flourish under some conditions and suffer under others. And the law should be constructed so people flourish. However, I found it difficult to say any of that on last week’s panel in such an adversarial environment. I want to get better at discussing these issues in public, but not then. I left the panel frustrated, but more resolved in what a task there is ahead of us and grateful to Krzysztof for inviting me to contribute to the discussions.

Jane demonstrating how to deal with men providing ‘constructive feedback’

I was invited on the panel because of my and Chris’s work on copyright education which we believe needs to question the very premise that our laws are built on. Copyright education is not in our view simply about telling people that piracy is wrong. It’s about encouraging people to consider why such laws exist, who they serve and how we all want to access and share content in the future. Lots of these ideas have been said by far more eminent IP scholars than me, (Ronan Deazley introduced me to such ideas in his book Rethinking Copyright) and I’m aware I have been influenced by studying CopyrightX under the likes of Professor Terry Fisher. Perhaps I am just at heart an idealist, as I told the panel?  I don’t know, but I do know that since coming back from CopyCamp, Chris and I are determined to continue such discussions with all players in the copyright world. We also want to redress the imbalance that means copyright currently favours the few and appears to be skewed towards those who want to monetise and protect their content, rather than to share it with others more openly. I sense the future is going to be interesting…..