Some challenges concerning copyright and the sustainability of new publishing models

The book industry, which is the largest market in terms of annual turnover in the cultural industry at the European level, and also the oldest cultural production industry, is currently undergoing a profound restructuring in the industrial, economic and – we hope – legal sense. The symbolic power of the book-object and of the publishing profession, legitimised by the unique contribution of print culture to Western history, appear to hinder our ability to imagine and implement new experiences and business models that favour the necessary, coherent adaptation to the new technological realities and to the consumer and cultural access habits that they have brought about.

In this section, we will try to briefly touch on some of the challenges that the sector is facing in regard to copyright and the sustainability of new models in this uncertain situation.

In order to discuss the first of these, we’ve turned to the report on Author Rights and Contracting Practices in Germany, Spain, France and the UK (regarding works of literature in general) prepared by independent researchers and commissioned by the French book and writing observatory le MOTif1 (1). Our aim here is to analyse the conclusions drawn by the study based on the current legislative and contractual framework, in order to develop a critical discourse and put forward a series of recommendations in regard to dealing with the new digital rights that are taking shape around IP. It is important to note that even though the report is quite detailed and technically pedagogic (impeccable and useful in this sense), it is not at all critical of current legislation and its tendencies, and it is also ideologically opposed to the paths that the Free Culture movement has suggested in this field. (The only passing reference to CC licenses is paired with the adjective “radical”).

In order to evaluate the construction of sustainable models in the publishing sector in the digital era, we’ve looked at several texts (2) by industry researchers and organisations that are proposing an alternative discourse to counter the hegemonic models. If we are to overcome the challenges that arise from the promotion and legitimisation of the uses of Free Culture in the publishing sector, there must be an opportunity for dialogue and to propose alternative models of production, distribution and management, which do not follow the hegemonic economic or legal trends championed by the traditional industry.

We will see how, as a general policy, this industry is tending to cling to the traditional value chain and the business model that it entails (totally burdened by the processes inherited from the print production model), in a desperate attempt to translate analogue methods and processes to the digital realm, without grasping that the change goes much deeper than a simple transfer from one medium to another.

Publishing can exist and be sustainable by organising production in ways that do not exclusively rest on traditional markets or intellectual property regimes. But in the face of the loss of direction and the serial failure of attempts to insert traditional models into the new order of things created by the Internet, what new, heartening business frameworks are emerging? And what threats to free access and free distribution are brewing in the preliminary draft reforms of IP legislation?

10.1. Challenges concerning copyright

In its conclusions, the le MOTif report suggests several aspects that should be taken into account by the publishing sector, including:

The pressing need for self-education in regard to IP

In order to be able to move beyond the models promoted by the traditional hegemonic cultural industries, it is imperative to start off from a position of knowledge. We need to be familiar with the relevant legislation and the changes that would be required to bring it into line with society’s needs, given the new modes of consuming and creating culture in the digital environment. The report points out that this need becomes particularly urgent in the case of authors:

“Authors are excluded from interprofessional negotiations and are strikingly absent and unaware of IP related issues. Similarly, they are not very aware of the operation and development of the publishing market. Authors play a very small role in reflections on books or publishing matters, and this has undesirable consequences in an industry that is right in the midst of change (3).”

In the digital sphere and in the context of the current financial crisis, where the tendency towards the proliferation of small labels, certain innovative experiences, self-publishing, mediated publishing or hosting (the Amazon model) and the discontinuous and fragile nature of relations between publishing houses and authors are all contributing to shaping a new scenario, the need for education would appear to be beyond doubt. In order to transform legal frameworks and favour new models of access and distribution, or to make the ones that are already emerging sustainable, all actors in the publishing chain should pay close attention to the legislative field, and also to the economic and contractual policies that regulate the distribution of cultural products.

Unstoppable trend towards the internationalisation of the market

As a result of this trend, there is a desire to bring the different national legislations into line and to develop uniform legislation. The le MOTif report examines this trend by discussion some of the pertinent legislative actions, and the difficulties in standardising European legislation.

“Within the EU, the Council and the Parliament have been working for decades to harmonize the national legal frameworks, convinced that the implementation of the digital market threatens the cultural economy with the spectre of deterritorialisation and the ensuing liberation of national legislations (4).”

The report concludes that it is desirable to gradually harmonize existing exceptions – which are increasingly numerous in the digital sphere –, although this has not stopped actions such as the recent approval of the draft legislation known as the “Sinde Wert” bill in Spain, which limits exceptions to private copy exemptions and to the use of reproductions for educational purposes. These new restrictions are an attack against common sense and against the need to disseminate knowledge and also contradict this shift towards the standardisation of legislation that is an essential element of any internationalisation process.

One demand that does seem to be unanimous in virtually the entire European industry is the need for efficient procedures to fight against rights infringement in the digital environment. As we will see below, this perspective connects to the blinkered view of a sector that seems to be unable to find other types of financial solutions beyond hegemonic publishing models focusing on the exploitation of IP.

The report also confirms that the complexity of the legislative panorama in regard to IP is another obstacles to the desired standardisation. The coexistence of the “Droit d’auteur” and Copyright legal regimes, and the different interpretations of European law in each country, leaves the EU with a highly complex legal scenario, which hinders, firstly, the abovementioned tendency towards standardisation and, secondly, the possibility of imagining and creating inter-State alternatives and alliances. Consider for instance Creative Commons licences, which directly confront the legal Copyright framework. This does not impede their use in continental Europe, where the copyright model applies, but does weaken their possible legal and social legitimisation. The le MOTif study believes that the greatest threat arising from the possible confusion resulting from this legislative complexity is the radicalisation of points of view in a debate that seeks to pit publishers (or exploiters of rights) against authors.

We believe that it is necessary to try and break the hegemony and almost unanimous defense of a restrictive model of access and distribution (the one that is generated by current Intellectual Property legislation in the EU, and that is intensifying, as can be seen in the case of Spain) as the only possible model for producing culture.

Digital rights: some current debates

The gradual restructuring of the sector since the early the twenty-first century as a result of the digitalisation of the industry, and the subsequent changes in the production, distribution and consumption of publishing products, requires equivalent changes in the legislative sphere, which must include these new realities. The le MOTif report goes into detail about the technical problems that reveal a need for a somewhat less guild-based approach and a broader vision of what networking is, the philosophy behind it, and what it entails. The exclusive concern with technical problems reflects the manoeuvres of the industry and its tendency to resist in this sense, and the way this is echoed in the legislation.

In spite of clearly recognising the need to reposition and redefine the roles of the different actors and the legal and economic conditions of the traditional publishing chain in order to bring them into line with the digital paradigm, the report does not cover any fundamental critiques of industrial or legal developments arising from the adaptation of the sector. The key issues that the report presents are:

• “Should digital publishing continue to be exploited within the traditional publishing industry?
  This is the most far-reaching reflection that the study considers. In fact, to stop thinking strictly about the book-object and start thinking in terms of content-production will be one of the key stages of the transformation.
  Nonetheless, even though there is no better example than the success of Amazon to verify that this is not essential, the European agents who were interviewed defend the idea that it is desirable to allow the traditional industry to exclusively translate the new paradigm, based on its analogue processes. Meanwhile, the new, parallel markets are mainly being developed in the USA, as a result of the dissatisfaction arising from the imposition of the economic and legal conditions of the digital market by traditional publishers.
• Should the VAT on e-books be in line with the VAT on print books?
  (For example, in Spain, print books are subject to 4% VAT, while e-books (which are considered a service rather than a basic cultural product) are subject to 16%, a fact that we see as a further attempt to curb new developments.)
• should the fixed book price system continue in the digital market? (aside from the United Kingdom, the other countries included in the study and most EU member states continue to use the fixed price system in both types of products).
• Should the profit margins of authors (which are subject to the profit calculation that takes print production costs into account) remain the same in the digital format?
• Should the transfer of exploitation rights in digital format be dealt with in a separate contract? In an addendum? In additional articles?
• Should digital rights be deemed to be primary, additional, or derivative rights? (5)”

The report deliberately chooses not to go into a series of issues that its authors deem to be beyond the objective/capacity of the study. Specifically:

– The equivalence of different legislations pertaining to publishing contracts and IP law in the digital sphere.
– The digitalisation of the collections of public libraries in order to make them publicly available.
– “The Creative Commons movement” (sic)
– Filesharing

Against the backdrop of the evolution of the publishing market in the digital era, IP rights are being developed and adapted in an improvised manner, without any sign of a critical attitude towards the current legislation and its future reforms. As a direct consequence of this, in spite of the usual slogans about safeguarding the interests of creators, the vernacular practices that are being tested around the recent, emerging development of the digital publishing market tend to protect the exploiters of the works – publishers and distributors (for the time being) – and to strengthen the persecution of the consumer and the subsequent restriction of access to knowledge. As a result, the study also ignores the possibilities of universal access to culture (in this case publishing culture: texts organised into collections and/or catalogues) which is favoured by networked distribution. This means that the foundations for the entire debate are based solely on the point of view of a strictly economic and/or legal infringement.

In order to promote innovative, sustainable strategies that can empower the sector, it is necessary to provide information and boost the dissemination of the existing frameworks and their possible points ofescape (see the example of CC in relation to the Copyright paradigm, as developed by the Creative Commons Foundation).

10.2. What the traditional industry can and should learn from the new Models

The construction of the new publishing ecosystem entails a profound transformation. It means no longer thinking in terms of the book-object and IP rights as the only production fetishes. The digital transformation of the industry does not consist of simply digitalising collections and putting a shopping cart icon on websites: we have to start thinking about what it means to change to the networking paradigm, with the ensuing transformation of production, distribution, commercialisation and consumption in publishing. It would take too long to list all of the changes that are being, and can continue to be, implemented, but we can point out some aspects that we consider to be essential:

Changes to the way we conceive the value chain: from the linear chain to networking

To continue to think in terms of a linear book chain when we are actually dealing with a whole new map based on much more permeable, multiple, discontinuous forms, with flexible roles and the potential for exchange, is to greatly impoverish the possibilities. This new interdependence must take into account the reader or consumer of culture and other non-commercial members of the ecosystem, which had thus far been considered as mere passive receptacles of publishing products. We also believe in the importance of the active agency of the cultural consumer.

Examples of experiences that are challenging the traditional sense of the book chain include: free online libraries, prescribers, specialised social networks such as Goodreads, self-publishing platforms and tools such as Cream, Oyster, Lulu and Bubok, the various crowdfunding platforms that are hosting and running publishing projects, online reading services such as 24symbols (a kind of Spotify for books), associations of industry professionals and readers such as Les 451 in France, political enterprises that use books as a pretext for political education and social actions and use the net as a space in which to release their books, such as the Spanish project Traficantes de Sueños, publishers that choose to subvert traditional profit margins such as Sigue Leyendo and Caramba Cómics, publishing cooperatives that have decades of history behind them, such as Elèuthera in Italy, online reading tools/applications, nodes of like-minded publishers such as Contrabandos, publishing houses that diversify their services to cover different demands from authors/booksellers/readers such as Pluto Press in Great Britain, scientific communities that decide to alter traditional measures by releasing their documents, specialist online bookshops, communities that generate fan fiction and produce value through their derivative works, etc…

Clearly, we are seeing a mutation in the way the publishing chain is organised, with a shift away from an inflexible chain of consecutive actors in favour of a networked space in which the different actors are connected through new, complex interdependent relationships. For example, Traficantes de Sueños, which is at the same time a bookshop, publisher and distributor, is a benchmark project in that it opts for and demonstrates the possibility of going against the accepted “fact” that cultural production will disappear if we allow free downloads and copying, and in that it produces a social, alternative economy.

It is important to think in terms of hybrid analogue-digital models. To turn away from professional compartmentalisation and correlation, and include non-commercial actors in processes that produce value and wealth. To stop seeing the internet as an enemy and instead recognise it as an ally that has taken on the role of the great mediator between products and consumers, which had previously been exclusive to publishers. The success of publishing projects will be mediated by the capacity for networked dialogue and for creating live communities. That is the main force that we can wield against the transformation of the scene as orchestrated by the big corporations such as Apple, Google and Amazon, which are cornering an incipient market to the point of almost turning the game rules into a de facto monopoly.

Decentralising the physical book-object (text) in the organisation of Production

New publishing business models are doing a good job of illustrating this decentralisation – they may have differing degrees of political views and of success, but they are taking risks and bypassing the game rules that are exclusively based on books and IP rights, as per the traditional market.

Publishing projects and experiences already underway, in which the production/commercialisation of books is just one of many nodes in the ecosystem, companies that see and produce books as a start rather than an end, as a pretext for something bigger or that involves more people, and not just as a text-product to be sold, all help us to imagine this new scenario. If we stop thinking about books as a product and instead see them as a service that is interdependent on many other services associated with their content, we will be able to understand why projects such as O’Reilly and Traficantes de Sueños are sustainable in the current context. These companies and projects are thinking, producing, disseminating, communicating, and distributing from the digital scene right from the outset, and taking advantage of all the possibilities that it offers for the free dissemination of knowledge and of liberated works.

A Free Culture publisher would thus be able to generate systems that covers all the roles of the old value chain, while also containing a great commercial paradox at its core: “liberated” books, freed from barriers to access. If books are liberated and made accessible from the outset, the goal becomes to figure out how to generate an economy around these liberated books. A fundament element of this approach, both in the digital and physical realms: community, which now at the heart of the net. Readers are no longer mere receivers of a product, and instead gradually become participants in an active, collective conversation (community) around a publishing project.

The funding channels that favour the sustainability of these experiences are diverse and innovative. A key objective is the economic sustainability of projects, which are always conceived as scalable, and include the possibility of self-employment for its agents. Some of the means that are often used to this end include: membership campaigns, subscription model (promoting “freemium” services), one-off and/or regular donations, microcredits from the project’s affinity network, support bonds, sales of physical copies, sales of other products (from t-shirts to e-readers), alliances with other agents – but not just from the perspective of commercial promotion, also in an attempt to identify and promote resource sharing, transparency, trust, etc. Promoting reciprocal exchanges with these and other like-minded projects is a way of looking after the networks in which these projects move, which are based on a commitment to protocols and norms that enable their feasibility. In this way, the concept of sustainability is understood in an expanded, shared way: to the extent that the like-minded/related projects are sustainable, the same will apply to part of the network in our affinity network. This approach also encourages the participation of the community (integrating writing into reading), promotes activist/aware consumption, and creates innovation in free digital practices, beyond understanding how to “liberate” a book by placing a CC BY NC ND license on the print version without making a digital version available on the net. As a result, there is a practice-led increase in regard to networking and Free Culture literacy for all the agents involved, while attempting to always clear up the polemic confusion around the term “Free”: Free does not mean free of charge.

Identify and strengthen national and transnational alliances that put forward discourses and actions that challenge hegemonic inertias

Initiatives such as the associativism of independent booksellers Les 451 and their successful demand for protectionist measures for the sector from the French government in response to the “dumping” by Amazon show how any national, and therefore transnational, alliance would be favourable and productive in the necessary demand for specific policies to support the restructuring of the publishing industry and the legislative reforms, above and beyond measures that criminalize new habits of networked cultural sharing and consumption.