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Whose Book Is it Anyway?

 | 
Janis Jefferies
, 
Sarah Kember

Part I. Opening out the Copyright Debate: Open Access, Ethics and Creativity

7. Copyright in the Everyday Practice of Writers

Smita Kheria

Texte intégral

1. Introduction

  • 1 European Commission, ‘Digital Single Market Policy: Copyright’, 2018, https://ec.europa.eu/digital (...)

Copyright ensures that authors, composers, artists, film makers and other creators receive recognition, payment and protection for their works.1

1The preceding statement, by the European Commission, typifies conventional wisdom about copyright in relation to creators. While the importance of copyright in creative practices, particularly economically in terms of providing financial rewards, continues to be presumed in current copyright policy, recent copyright scholarship has started to empirically query how creative practitioners relate to copyright law.

  • 2 CREATe is a national research hub based in the United Kingdom and funded by Research councils UK. (...)

2Of all creative practitioners, historically, writers have received copyright protection for the longest amount of time: the Statute of Anne 1710 gave protection to authors in their writings for the first time in the United Kingdom. Yet, we know little about how writers in the UK perceive the role of copyright in their practice today, especially in the context of a changing technological and socio-economic environment, one in which writers’ incomes are falling and the economic value of copyright to creators, as well as the legitimacy of copyright itself, is being questioned. Therefore, it would seem pertinent to ask: How do writers perceive copyright and relate to it? Is copyright seen as valuable by them? And if so, who by, and why? This chapter addresses these questions by drawing on new empirical research conducted as part of a project titled ‘Individual Creators’, and funded by Research Councils UK through the research programme of CREATe.2 The research comprised a large qualitative study (the IC study) that examines the relationship between copyright and the everyday life of creative practitioners across different creative disciplines (writing, visual arts, and music).

  • 3 The chapter focusses on economic rights under copyright and not moral rights.

3This chapter focuses on the data collected in the IC study that is particular to the profession of writing and copyright, with an emphasis on writers’ perceptions and understandings of copyright, to assess the legitimacy of copyright in their day-to-day practice. Section 2 provides an example of an incident (drawn from ethnographic data from the IC study) that evidences the importance of being aware of authors’ perspectives on copyright, while also being cognisant both of how individual earnings are made and the degree of importance placed on copyright by individual writers. Section 3 briefly reviews two strands of recent empirical research that question copyright’s legitimacy in individual creators’ livelihoods. Using data from the IC study, the remainder of the chapter challenges the inference that copyright has little to no economic value in writers’ everyday practice. Section 4 briefly describes the IC study and the research methods. Sections 5–7 draw upon original interview data to present some thematic findings on how writers perceive the role of copyright in their day-to-day practices.3 These findings indicate that the writers in question strongly perceive copyright to underpin their creative practices economically, and as rights that matter to them personally. Section 8 provides a conclusion.

2. Copyright, Creators, and the Green Party: A Public Spat

  • 4 The Green Party is a left-wing political party, see https://www.greenparty.org.uk/we-stand-for/; s (...)
  • 5 Green Party, ‘Economy: Part of the Green Party Policies for a Sustainable Society’, EC1011. Policy (...)

4In April 2015, two weeks before a general election in the United Kingdom, copyright received unusual media scrutiny when a policy document by the Green Party,4 containing its plans for intellectual property, came to the attention of certain artistically inclined members of the electorate. On the night of 22 April, illustrator and author Sarah McIntyre tweeted a screenshot of the Green Party’s policy on ‘Intellectual Property’ highlighting their plan to ‘introduce generally shorter copyright terms, with a usual maximum of 14 years.’5 The screenshot was accompanied by the following comment:

  • 6 See Sarah McIntyre, ‘WHAT? Green Party aim to cut down copyright to 14 years. How are we supposed (...)

WHAT? Green Party aim to cut down copyright to 14 years. How are we supposed to earn a living?6

  • 7 Green Party, ‘For the Common Good: General Election Manifesto 2015’, p. 61, https://www.greenparty (...)
  • 8 For example, see tweets on 23 April 2015 by Linda Grant: https://twitter.com/lindasgrant/status/59 (...)

5The plan was not in the Green Party’s Election manifesto for 2015 but was instead found in a ‘policy document’ that seemed to elaborate on the election manifesto. The manifesto itself, under ‘Information and Digital Rights’, stated that ‘We need copyright laws that reward creators but that are consistent with digital technologies’ and it claimed that the Green Party would ‘make copyright shorter in length, fair and flexible’, but did not offer any further details.7 Nevertheless, McIntyre’s tweet, and a similar post by her on Facebook, quickly led to a discussion on both platforms, as various concerned illustrators and writers noted their views on the proposal and discussed its implications.8

  • 9 See K. Brown, ‘Authors Criticise Green Party Plan to Reduce Copyright to 14 Years’, Telegraph, 23 (...)

6On 23 April, several newspapers picked up on the social media debate and reported that authors were shocked and alarmed by the Green Party’s policy, and noted that it would be seen as an ‘appalling injustice’ if this shorter copyright term were to come to effect.9 McIntyre told The Telegraph:

  • 10 K. Brown, ‘Authors Criticise Green Party Plan’, Telegraph, 23 April 2015, http://www.telegraph.co. (...)

It took me a long time to get into publishing and I’ve only started earning royalties. It’s very hard to make a living this job, hardly anyone gets rich at it. JK Rowling and Julia Donaldson are the exceptions, most writers and illustrators earn below minimum wage […]. It scares me when it looks like someone wants to take away yet another source of income. It sounds like the Greens want us to rely on the Arts Council for funding instead of earning money directly from our work, and that would involve writing endless complicated grant proposals. I’d rather let my readers decide whether my work is worth their money than a handful of people in a government office.10

  • 11 Ibid.
  • 12 Ibid.
  • 13 Caroline Lucas, ‘Copyright — Standing up for Brighton’s Creative Industries, Artists and Writers’, (...)
  • 14 Green Party, ‘Greens to Review Copyright Policy’, 27 April 2015, https://www.greenparty.org.uk/new (...)
  • 15 K. Brown, ‘Green Party to Review Controversial Copyright Plans’, Telegraph, 27 April 2015, http:// (...)

7Initially, there was some confusion as to what the Green Party meant by ‘a maximum of 14 years’:11 a maximum term of fourteen years after publication of a work, or a maximum term of fourteen years after the death of the author? After some back and forth,12 Caroline Lucas, the Green Party’s only Member of Parliament, admitted that the party had ‘got it wrong’13 and agreed to review its policy on copyright.14 By 27 April, traditional news media coverage, for the most part, had ended and the party’s offer to review the policy was seen as a victory (or at least a resolution, of sorts) for the authors.15

  • 16 While legal reform may not have been plausible in this context, it is worth noting that the durati (...)
  • 17 It was only in 2010 that the Green Party returned its first Member of Parliament, Caroline Lucas, (...)
  • 18 See Art. 7, Berne Convention for the Protection of Literary and Artistic Works, https://wipolex.wi (...)
  • 19 K. Brown, ‘Green Party to Review Controversial Copyright Plans’, Telegraph, 27 April 2015, http:// (...)
  • 20 Green Party, ‘Economy’, 2016, https://policy.greenparty.org.uk/ec.html

8Even if the party hadn’t agreed to a review, the policy was never likely to result in legal reform in relation to the duration of copyright:16 not with just a single Green Party Member of Parliament,17 and not with long-standing international and EU frameworks in place that provide for a minimum term of copyright protection.18 In fact, in response to the ‘Twitterstorm’ about the policy, a Green Party spokesman had noted that they had ‘no plans to implement this in the near future.’19The specific issue of setting a fair term of copyright protection was clearly more complex than the party’s policy makers had envisaged. The Green Party has since changed its policy: in the last revision of the policy document, dated April 2016, the offending phrase, quoted earlier, is no longer present in EC1011.20

9With respect to the representation of authors’ perspectives in understanding the role of copyright and the legitimacy of copyright itself, this public spat serves two broader purposes. First, it is a cautionary tale for the Green Party not to ignore the impact of its policies on creative practitioners — a sentiment summed up in a tweet by a writer, Tom Cox, in his response to the controversial policy:

  • 21 See Tom Cox, 23 April 2015, https://twitter.com/cox_tom/status/591130047882342400/photo/1

That collective ‘Oh’ you just heard was a fuckload of authors seeing this & changing their minds about voting Green.21

  • 22 The extensive critique of the current term of protection, and recent extensions to it, indicates a (...)
  • 23 K. Brown, ‘Authors Criticise Green Party Plan to Reduce Copyright to 14 Years’, Telegraph, 23 Apri (...)

10The optimal duration of copyright protection is by no means an easy issue on which to formulate a policy.22 However, the Green Party’s mistake stemmed from a lack of proper consultation with artists and creative practitioners and a failure to attempt to understand how duration of copyright plays a role in their livelihoods; and instead to rely, perhaps uncritically, on one academic view, derived from economic modelling, that proposes an optimal duration of copyright to be around fifteen years from publication.23 The incident demonstrates what can happen if those formulating policy fail to consult creators, and what can happen when there is misapprehension with respect to understanding creators’ livelihoods and how much importance they place on those aspects of the copyright framework that help them sustain professional creative practices.

  • 24 See S. McIntyre, ‘In Defense of Copyright’, Jabberworks, 27 April 2017, http://jabberworks.livejou (...)

11Second, the incident also highlights the contested nature of copyright in the digital world. The contestations were reflected, in particular, in the social media discussions on the policy, which continued long after traditional news coverage had ended. Here, the specific issue of duration of copyright protection simply functioned as a springboard to challenge the legitimacy of copyright protection itself. Authors’ criticisms of the Green Party’s policy were countered with attacks on the role of copyright for creators: one example being a claim that instead of protecting creators, copyright was the ‘worst thing’ to happen to creatives and was a ‘clusterfuck’. The discussions left some authors bewildered and frustrated with what they saw as a general lack of understanding about the actual role played by copyright in creative practices and creators’ livelihoods. McIntyre, whose posts had sparked the spat, responded by discussing the importance of copyright on her blog and by sharing other authors’ views in defence of copyright.24

  • 25 A further strand of such empirical research has examined how copyright can be a hindrance to certa (...)

12While we know little, in academic scholarship, about how writers in the UK perceive the role of copyright in their practice today, the relationship between copyright law and creative practices has received increasing empirical attention in recent years. The next section briefly outlines the potential role and value of copyright exploitation in the careers of writers and reviews two stands of recent empirical research on writers’ earnings and the negative space of IP.25

3. Copyright and Writers’ Livelihoods

  • 26 Section 1, Copyright Designs and Patents Act 1988 (CDPA) in the United Kingdom, https://www.legisl (...)
  • 27 C. Waelde et al., Contemporary Intellectual Property: Law and Policy (Oxford: Oxford University Pr (...)
  • 28 A. Rahmatian, ‘Dealing with Rights in Copyright-Protected Works: Assignments and Licences,’ in E. (...)
  • 29 s. 16 CDPA.
  • 30 ss. 90 and 92 CDPA.

13Copyright, being a property right,26 and a negative right, in common with other intellectual property rights, gives the right owner the ability to exclude others from the market.27 However, it is not simply a negative right. It has both an external and internal aspect in terms of being beneficial to the right owner.28 The external aspect captures the ‘negative’ aspect of the right i.e. the ability to exclude infringers from undertaking uses of a protected work that are exclusively granted to the copyright owner.29 In contrast, the internal aspect is the ability to exploit the uses of a protected work that are exclusively granted to the copyright owner, usually through contractual arrangements (e.g. an assignation or license)30 in return for economic or other gain.

  • 31 These two categories are classified as ‘Statutory right: individually negotiated income’ and ‘Stat (...)
  • 32 Kretschmer, ‘Copyright and Contract Law’, p. 143; on the significance of royalty contracts between (...)

14The internal aspect of copyright facilitates writing-related income streams for writers: a) sale and licensing of copyright in written works, usually individually negotiated through a copyright contract with a publisher, in return for advances, royalties, and other types of profit-sharing arrangements; b) statutorily prescribed and collectively negotiated income for secondary uses of written works, such as payments for photocopying or lending of books.31 Economic literature has largely focussed on the internal aspect of copyright, and it both presumes and emphasises that this is what is crucial for creators: it is the internal aspect of copyright that enables copyright contracts to operate and allows creators to receive monetary returns.32 Consequently, recent empirical research on copyright and writers in the UK, has largely focussed on examining the role of the internal aspect of copyright, through assessing how writers earn a living and how much of their earnings emanate from exploitation of copyright in their works. This next part briefly reviews such research, and identifies what lessons it may offer on the legitimacy of copyright.

A. Writers’ Earnings

  • 33 Nordicity, ‘Literature and Publishing Sector Review’, Creative Scotland, June 2015, p. 22.

15In July 2015, Creative Scotland published its ‘Literature and Publishing Sector Review’, an independent study it commissioned to provide an overview of, amongst others, the future challenges and opportunities in literature and publishing in Scotland. The review asked, ‘Can one make a living out of writing?’ and then noted that: ‘The answer for most writers is — with great difficulty.’33This statement is not surprising. Writing, as a profession, along with other creative practice-based careers, has been found to be risky and poorly remunerated, with average income appearing to be continuously falling in real terms in the United Kingdom, and many writers relying on sources of income other than writing.

  • 34 K. Pool, ‘Love, Not Money’, The Author (Summer 2000), 58–66.
  • 35 C. Squires, ‘Novelistic Production and the Publishing Industry in Britain and Ireland’, in B. W. S (...)
  • 36 M. Kretschmer and P. Hardwick, Authors’ Earnings from Copyright and Non-copyright Sources: A Surve (...)
  • 37 L. Michael, ‘Making a Living as a Writer’, in S. Earnshaw (ed.), The Handbook of Creative Writing (...)

16In the last two decades, several earnings’ surveys have obtained authors’ earnings data by being administered through organizations representing them in the UK (Authors’ Licensing and Collecting Society and the Society of Authors) and they indicate a downward trend in earnings from writing. In 2000, Pool published the results of a questionnaire survey, administered to members of the Society of Authors (SoA), a body of professional writers, in SoA’s quarterly journal The Author.34 The survey asked the respondents to provide ‘approximate total gross income arising directly from their freelance writing in the previous year’.35 Out of the 6,600 members of the society, 1,711 responded, and the survey revealed that the average (mean) earnings of the authors was only £16,600 per annum.36 It also found that: 75% respondents earned under £20,000, and 46% earned under £5,000; at the other end of the spectrum, 5% earned over 75,000, and 3% earned over £100,000; and, writing was the only source of income for a mere 230 writers, about 13.5% of the respondents.37

  • 38 Kretschmer and Hardwick, ‘Authors’ Earnings from Copyright and Non-copyright Sources’.
  • 39 Out of the total, 1,334 contained useful information although the number of valid responses on som (...)
  • 40 Ibid., pp. 10 and 86.
  • 41 Ibid., p. 24.
  • 42 Ibid., pp. 8 and 78.
  • 43 Ibid., p. 97.
  • 44 Ibid., p. 22.

17Another survey, published in 2007, was commissioned by the Authors’ Licensing and Collecting Society (ALCS).38 The UK part of this survey was posted to 19,500 ordinary members of ALCS in 2006, and 1,345 questionnaires were returned (hereafter, 2006 survey).39 From the full sample of respondents, it was found that the mean (average) earnings of UK authors were £16,531 per year, whereas the median (typical) earnings were £4000;40 and only 20.3% of all writers earned all their income from writing.41 However, a considerable number of UK responses were from academics and teachers (for whom non-copyright sources of earnings are more important), and other professionals or retired.42 These were excluded from the category of professional authors — those who spend more than 50% of their time on self-employed writing43 — being the most relevant category for policy purposes.44

  • 45 Ibid., pp. 5 and 99.
  • 46 Ibid., p. 24.
  • 47 Ibid., p. 23.

18The smaller sub-set of responses from professional authors indicated that the mean (average) earnings from writing were £28,340 and median (typical) earnings were £12,330 from a total of 525 respondents.45 40% of the professional authors were found to earn all their income from writing, 59.6% earned more than 50% of their individual income from writing, and 60% required a second source of income.46 The report also noted significant inequality in the distribution of income within the profession with the top 10% of professional authors earning more than 50% of the total income, and the bottom 50% earning about 8% of the total income.47

  • 48 J. Gibson, P. Johnson and G. Dimita, The Business of Being an Author: A Survey of Authors’ Earning (...)
  • 49 Although the number of responses to some of the survey questions is below this number. Ibid., p. 6
  • 50 Ibid., pp. 9, 10, and Table 2.4.

19A follow-up survey on authors’ earnings, and commissioned by ALCS to be an update of the study above, amongst other reasons, was published in 2015.48 The online survey was administered to a total of 35,000 members of 2 organisations, ALCS and SoA, in 2014, and 1,477 respondents completed the survey (hereafter, 2014 survey).49 It found a decline in the income of professional authors, those who spend more than 50% of their time on self-employed writing: from a total of 630 respondents, the mean (average) earnings from writing were £28,577, a figure not far from the 2006 survey, but representing a decline in real terms; and, the median (typical) earnings were £11,000, less than minimum wage.50

  • 51 Ibid., p. 9 and Table 2.3.
  • 52 Ibid., p. 8.
  • 53 Ibid., p. 10 and Table 2.6.

20Only 11.5% of the professional authors were found to earn all their individual income from self-employed writing, while 62% earned more than 50% of their individual income from such writing; nearly 90% needed to earn money from sources other than writing; and even writers who are better paid were found to earn from other sources.51 Similar to the 2006 survey, it reported inequality in the distribution of income with the top 10% of professional authors earning 58% of the total income and the bottom 50% earning only 7% of the total income.52 The 2014 survey also made some attempt to find out how the income from self-employed writing was split and found that the most significant contribution to such income came from royalty payments, followed by payments by ALCS, and from the Public Lending Right.53

  • 54 ALCS, ‘Authors’ Earnings: A Survey of UK Writers’, June 2018, https://wp.alcs.co.uk/app/uploads/20 (...)
  • 55 Ibid., p. 2.
  • 56 Ibid., p. 4.
  • 57 Ibid., p. 3.

21The most recent earnings’ survey was commissioned by the ALCS in 2017, as a follow up to the two surveys above.54 A very brief overview of the survey results was made available in June 2018, and indicates that over 5,500 writers responded to the survey (hereafter, 2017 survey).55 The median (typical) earnings of professional authors have continued to fall and were £10,437, again, less than minimum wage;56 and, only 13.7% of the professional authors were found to earn all their income from writing.57 Although full results are due to be published later in 2018, these figures suggest that writers’ earnings are continuing to decline.

22The trend emerging from the earnings’ data in these four surveys, which span the last two decades in the UK, seems to be clear: writing is a risky profession, marked by low earnings, and populated by a large number of authors who earn less than minimum wage from self-employed writing. With income inequality quite pronounced, many writers have portfolio careers as they seek additional sources of income to supplement that generated by their writing. But what does all of this imply, with respect to the legitimacy of copyright? Would it be fair to assume that copyright doesn’t matter to writers in their everyday practice, at least not in terms of financial return? If this is true, would it be then correct to suggest that copyright protection is ultimately unnecessary for writers?

  • 58 An early review of several earnings surveys from a range of creative sectors (writing, music, and (...)

23If one takes a reductive approach that focuses solely on the earnings data found in these surveys, one could easily conclude that copyright has little or no economic value in writers’ everyday practice. The inference is that having a high percentage of writers who do not earn all, or even most, of their income from the exploitation of their writing, and who instead earn it from non-copyright sources, indicates a situation where copyright is no longer economically important to writers.58 However, this chapter challenges this inference. In Sections 5–7 below, interview data from the IC study will be used to demonstrate that writers perceive copyright to be economically important to them, and the reality of writers’ everyday practice and their perceptions of copyright is more complex and multifaceted than what earnings data alone might suggest.

B. The Negative Space of IP

  • 59 D. Oliar and C. Sprigman, ‘There’s No Free Laugh (Anymore): The Emergence of Intellectual Property (...)
  • 60 E. L. Rosenblatt, ‘A Theory of IP’s Negative Space’, Columbia Journal of Law & the Arts, 34.3 (201 (...)

24It is worth briefly addressing another strand of recent research that hasn’t evaluated the profession of writing but that seems to raise questions about the legitimacy of copyright law in the context of benefits accruing to individual creative practitioners. This research has examined several areas of creative production where, arguably, copyright protection is either unavailable, not sufficiently available, or simply fails to work efficiently in protecting specific types of creative practitioners and their outputs; this includes stand-up comedians, tattoo artists, and haute-cuisine chefs.59 This research demonstrates that social norms can come to the aid of creative practitioners where copyright protection is either absent or not frequently relied upon, and such norms often negate the need for legal protection. This growing body of scholarship, partly consisting of empirical research, has been categorised by some as the ‘negative space of intellectual property’.60

  • 61 K. Raustiala and C. Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion (...)
  • 62 Raustiala and Sprigman, ‘When are IP rights Necessary?’, p. 6.

25While this research seems to question the necessity of copyright protection, it is not without limitations. Legitimate concerns over whether industries such as the fashion industry can be classified under the ‘negative space’ have been raised.61 This negative space scholarship has also been noted to be scant,62 and to represent a very small size of economic activity in terms of the creative sectors that fall in the negative space. Consequently, its implications for the legitimacy of copyright, and its relevance for other creative practices (e.g. writing) are arguably very limited i. e. while this research shows that legal protection may not be necessary for every type of creative endeavour and creative practitioner, and that some creative activities can flourish without copyright, it does not negate the necessity for copyright protection in all other creative sectors and for all other creative practitioners. In fact, this chapter presents a contrast to this research, by demonstrating a positive space of copyright, and the potential for a continuing positive role for copyright in the context of professional writing.

4. The Role of Copyright in the Everyday Practice of Writers: IC Study

  • 63 See I. Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’, 18 May 201 (...)
  • 64 A pre-launch consultation for the CREATe centre had highlighted ‘the importance of reflecting the (...)

26The key aim of the IC study was to understand, through socio-legal research, how copyright law trickles down and is played out in day-to-day creative practice, in a changing digital, technological, and economic environment. Choosing creators as its main informants, and treating them as key copyright policy stakeholders, distinct from the intermediaries or other right owners that may claim to represent them, the study focussed on creators’ own practices and understandings, in relation to the relevance or irrelevance of copyright. The need for more evidence and evidence-based policy in copyright has been recognised,63 and the study is a contribution to such a call for evidence by capturing and reflecting the perspectives of individual creators on copyright.64

  • 65 Grounded theory originated in the works of Barney Glaser and Anselm Strauss and involves an induct (...)
  • 66 Key arts events and festivals, taking place within the duration of the research project, 2013–2017 (...)
  • 67 The incident outlined in Section 2 is drawn from such ethnography.

27At the time of writing, the dataset for the IC study comprised semi-structured interviews with 130 individual creative practitioners working across different creative disciplines (writing, visual arts, and music). This chapter draws on a part of this dataset, specifically original first-hand accounts of the perspectives and practices of 25 writers based in the UK. To obtain, examine, and analyse the interviews, a socio-legal approach was adopted, and a grounded theory methodology was employed.65 Random and snowball sampling was used to select interviewees. Random sampling was used to select, and engage with, primary creators who were participating in selected literary and arts events and festivals, and attending venues and hubs that showcase creative works.66 Snowball sampling was used to follow up on any referrals that interviewees provided. The interview data was obtained in conjunction with the collection of ethnographic data such as observations at festivals and events, and secondary data from online ethnography of social media sites such as Facebook and Twitter.67

  • 68 Being qualitative in nature, the study is not statistical and the findings are not designed to be (...)

28In terms of the perceived relevance of copyright to the day-to-day practice of the writers who were interviewed, a relatively consistent pattern emerged.68 On the whole the writers believed that the existence of copyright protection in their works (irrespective of whether or not they always availed themselves of their rights, either in terms of exploiting the rights, or excluding others by enforcing the rights) was of importance to them personally, and of benefit to their professional writing practice. The next three sections will elaborate on this by presenting some thematic findings pertaining to writers in the IC study.

5. Internal Aspect of Copyright: Writers’ Perspectives on Financial Return from Copyright

29The majority of writer interviewees valued the internal aspect of copyright in their practices i. e. the ability to exploit their rights and earn a monetary return. First, income derived from the exploitation of rights was perceived to be an important component of the ‘portfolio of earnings’ of the interviewees. This applied both to writers who were primarily making a living from exploiting their self-employed writing but also to those writers who were not sustaining themselves primarily through writing, and were instead juggling writing with other activities. Second, the financial reward derived from exploiting copyright in self-employed writing was found to be relevant in two primary ways: the monetary return played a practical role in earning a livelihood and sustaining creative practices; and the monetary return also played, for many but not all, a more personal role in allowing them to feel recognised and rewarded for their writing. This section elaborates on these findings and argues that these narratives challenge the notion that copyright is no longer economically important to writers.

A. Writers’ Careers and Sources of Earnings

30A large majority of the interviewees pointed to the precariousness of trying to maintain a career as a writer and the profession was generally characterised as one marred with uncertainty, such that yearly earnings are often impossible to predict. Despite the various challenges present in the writing profession today, the interviews indicated that copyright is still perceived to be economically important to writers.

31Like much previous survey-based research, outlined above, interviewees’ earnings were also found to be largely portfolio based. However, within this portfolio, the economic rights provided by copyright were seen as a key asset, and one that nearly all the writer interviewees were exploiting for monetary return, either through a publisher or other intermediaries, or on their own. Some sources of earnings that were pointed out in the interviews as being important were as follows:

  • Book advances (advance on royalties) from the publisher.
  • Royalties from the publisher in relation to sale of physical books, ebooks, audio books, apps, and other forms of exploitation.
  • Income from the exploitation of foreign rights, translation rights, and dramatization for film, television and theatre; sometimes separately negotiated with intermediaries other than the book publisher.
  • Income from self-publication in relation to direct sale of physical books, ebooks, audio books, apps, and other forms of exploitation.
  • Income from self-publication after rights reversion.
  • Income from ad-hoc commissioned writing e.g. ghost writing.
  • Public lending rights (PLR) payments.

32The actual ‘portfolio of earnings’ of each interviewee was different, and there was variation in the importance of different sources of earnings within individual portfolios. In addition to this, some interviewees undertook certain ancillary but related activities which provided additional revenue that helped sustain their writing careers. They emphasised how the economic benefits from these activities were related directly to successful ownership and exploitation of rights in their writing. These activities included, but are not restricted to, the following:

  • Grants: for example to undertake research towards a new work.
  • Book festival bookings: where a writer is booked to make a personal appearance and which will most likely include a book reading or participation in a panel discussion.
  • School bookings: where a writer, particularly writers of children’s books, are invited to make personal appearances at schools. This will include book readings and meet-and-greet events with children and parents.

33Although revenue from exploitation of copyright was clearly important to the ‘portfolio of earnings’ of the interviewees, as detailed below, the size and nature of such revenue changed from practice to practice, and also fluctuated from year to year within any specific creator’s practice.

B. Copyright Mattered, in Terms of Financial Return, to Those who Were Primarily Making a Living from Writing

34For several interviewees, their income entirely, or largely, stemmed from the exploitation of their writing and, consequently, the internal aspect of copyright was seen to be vital for the sustenance of their creative practice. Keay, a writer and historian, emphasised that his livelihood was largely dependent on income from his writing, something he also likes to state on his website:

  • 69 See https://www.johnkeay.com/biography

Though hailed as one of our most outstanding historians (Yorkshire Post), John Keay is not attached to any academic faculty and survives on the royalty receipts from his books.69

35While emphasising the importance of royalties in his practice, he also pointed to the Royal Literary Fund (of which he is a fellow) as an example of a charitable organisation that provides assistance to writers using funds derived largely from other authors’ writing:

  • 70 For the Royal Literary Fund, see https://www.rlf.org.uk/home/about-the-rlf/

I mean most of my income consists of royalties and so it’s crucial from that point of view. It’s also very important to me because […] Royal Literary Fund Fellows are paid out of a Royal Literary Fund which is basically royalties, I mean it’s royalties on works of authors who are long deceased in most cases.70

36For several other interviewees e.g. Brookmyre, Mina, Sheridan, Wagner, and Mills, the exploitation of their writing had been their primary source of income for many years. Brookmyre, having built a successful career spanning twenty years, indicated that while writing had been his main source of income in this period, prior to landing his first publishing deal, he had juggled writing with part-time work, not unlike many other writers:

I would take two months of the year off to write a novel because I knew I could afford those two months off, it helped that, I mean I was doing lots of shifts to make sure that I could afford that break […] once I got a publishing deal that was me able to fund myself full-time after that.

37Similarly, Haughton, who had been an illustrator for several years before he started writing children’s books, was very clear about the degree to which he depended on rights exploitation for generating income:

Yeah, all of my money basically comes from selling my rights […] yes, 100%.

C. Copyright Also Mattered, in Terms of Financial Return, to Those who did not Primarily Make a Living from Writing

38While many interviewees were earning a living entirely or primarily from writing, there were also several interviewees who were not sustaining themselves primarily through writing, and were instead juggling writing with other activities. These interviewees had to rely on non-copyright sources of income for making a living (e.g. a combination of second jobs and ancillary activities mentioned above). However, what was striking was that they also perceived the copyright-related income to be important in terms of financial return and a valuable part of their portfolio of earnings. Despite supplementing their income from a range of activities other than writing, they saw the internal aspect of copyright as vital for the sustenance of their creative practice in the short and the long term.

39Moffat, a writer and historian, who has juggled several roles while writing many books, indicated that he couldn’t survive on what he earned from his writing alone. For a period in the past, he had benefitted from simultaneously publishing certain books and also producing them as a TV series where each use fed off on the other, and he was able to make a living from exploitation of his writing alone:

It was also a very good source of income. When I did the books and the TV together that was a living, that worked […]. So, yeah, that was, and so that was my version of journalism as it were, that was how I did it. But yeah, because we are in a long recession here in Britain these things are going to shrink, they are going to disappear sadly.

40While emphasising that surviving as an author had become tougher than before, for various reasons, and that he wasn’t writing full-time due to having other unrelated jobs, he acknowledged that exploitation of copyright benefitted him materially and contributed to his portfolio of earnings in many ways, including advances and royalties, public-lending-right income (he indicated he was in the top quartile for public-lending-right returns), and self-publication.

41Similarly, Duffy, a playwright and co-director of a theatre company, outlined a diverse portfolio of earnings that included teaching, holding workshops, and relying on public funding for creative activities, within which writing for television and theatre (whether it was exploitation of her rights through being commissioned for a play, or in writing shorter works for television) were an important part of her portfolio.

42Strachan also emphasised the importance of royalties in sustaining her writing career. Additionally she pointed to the precariousness that comes with being unable to predict the size of the next royalty cheque and having to juggle multiple strands of a ‘portfolio career’; a portfolio in which two such strands were book advances and income derived from the sale of previous publications. In this context she considered copyright protection to be a ‘huge thing’.

43Murdoch had dabbled in music when he was quite young, and then worked in the pharmaceutical industry for twenty-five years, but had started writing entirely by accident, and was first published in 2008. At the time of interview, he wrote and played music full-time, but felt that his writing practice was at the cusp of change. Although his portfolio of earnings had been particularly mixed and continuously changing, copyright had a monetary role in it because returns from retaining and exploiting his rights in both writing and music contributed to ‘him ticking away’.

D. Rights Matter in Sustaining Practices in the Digital Environment

44Many interviewees, while indicating that copyright was important to their ability to make a living from writing, underlined the importance of rights in the digital environment, and suggested that their ability to sustain professional careers would be diminished in absence of rights. Morgan, an author of educational books and teenage fiction, amongst other things, was forthright in expressing the view that rights were perhaps more important than ever. In particular, and primarily because of changes in the marketplace brought about by digital culture, she articulated very clearly how intimately tied to the economic benefit she believed copyright to be:

I think it is even more important than it ever was, because it’s even harder than it ever was to earn a living. I think it goes to the core of it that when you have written, or drawn or you know whatever, obviously it’s just words, but if you created something, if no one can earn any money out of it fine, but if anyone’s going to make any money out of it, it should be the person who created it, and the people who are then with their permission going to take it to the market. And because that ability is undermined so often now, and because it’s so easy for people to illegally — either because they don’t know it’s illegal, or just because they do and don’t care — make money from it themselves, I think it becomes even more important. So, with advances and royalties going down and ebook income or sales going up, then I think it becomes even more important.

45Smart, while appreciating the value of copyright, felt that balancing acceptance of ‘free culture’ with the necessity to ‘get paid’ was a difficult task. For him, giving content away was necessary in building an online following, and this served as a conduit to generating sales from a growing fan base. At the same time he was critical of people’s sense of entitlement because exploitation of rights remained important to generate an income and sustain a practice:

I think with any art form the internet has made people feel very self-entitled, it has made them feel like ‘now I should have everything for free, I should have music for free, and movies for free, and books,’ not necessarily thinking that the people behind them might want rewarding, I might need funding to keep going.

46In articulating her views on the economic value of copyright to her writing practice, Czerkawska explicitly tied in the notion of copyright as an incentive, as something without which she could not function as a writer:

Because there is an awful lot that you do as a writer that I think if you weren’t being paid in some way, and you didn’t have the rights, you simply wouldn’t do it […]. I can imagine that I would dabble a bit here and there, but if you didn’t have the incentive of the rights in what you had, you wouldn’t, […] because people have said it to me all the time, ‘well you would do it anyway,’ but you wouldn’t do it in quite the same way… no, you wouldn’t do it over a period of time… yes, if it became unsustainable you just wouldn’t do it. Because there is a lot of what you do that is sheer hard slog, it’s not all fun and games, some of it is, but in a big project there is lots of times when you do find yourself thinking, ‘why on earth am I doing it, you know, why am I putting myself through this?’ And, if you didn’t have that incentive, that there was copyright, there was the potential to keep going with this, for it to have a life beyond you, you simply wouldn’t do it, you know? You might dabble a bit, you know, write the odd little poem, or the odd little story. Again I think that does sow a seed of misunderstanding of the way a professional writer works.

47Other writers also similarly indicated that while they wrote ‘for the love of’ writing, ultimately, if the monetary benefits were not there in the end, they wouldn’t be able to continue to dedicate most of their time, or as much time, to writing, or be able to remain a professional writer.

48It is important to note here that while the internal aspect of copyright clearly mattered to the interviewees in terms of financial return, said return was not simply associated with sustaining creative practices but also with notions of reward and recognition. For instance, Arbuthnott, who continued to teach full-time while also having published several books for children, stated that while her writing income was not plenteous enough to pay all her bills, it was important to her both monetarily, and personally:

I have a nice life because of the writing money […] it’s definitely important. And it’s important in terms of how the world values you, that you are paid.

49Murdoch, also explained how he valued the rights personally:

I think there is an intrinsic notion that you should have, you should own what you have done, I think that’s a kind of, it feels right inside you. I’m not talking about money here, I’m talking about a feeling thing. I think it feels right to feel as if, you know, […] you’ve created that from nothing, or, bits of things, and like, at the end of the day it’s unique to you, and that should be recognised as yours.

E. Concluding Remarks

50It was clear that writer interviewees perceived financial return from copyright to matter to their writing practices and to them personally. Writer interviewees who earned their living primarily from writing, as well as those who did not earn all their income from writing, both indicated that they perceived the internal aspect of copyright to have a continued role in their practice, despite the changing technological and market conditions. This challenges the notion that copyright has little or no economic value in writers’ everyday practice — an inference that can result from a reductive approach that focuses solely on earnings data derived from the surveys (reviewed in Section 3 above).

51The surveys on writers’ earnings provide a valuable measurement of the direct monetary reward received by authors from exploitation of copyright. However, they do not provide a full picture of either the role or the importance of copyright in writers’ livelihoods and practices. It can be concluded from the findings above that earnings data alone offers little when it comes to understanding the role of the internal aspect of copyright in writers’ practices. This is because the earnings surveys in the UK, so far, have not captured writers’ own beliefs and understandings of the economic importance of copyright, i. e. while the surveys capture what writers earn, they do not capture how writers ‘value’ those earnings personally or in relation to their writing careers. Future research in this area, particularly earnings surveys, might benefit from assessing if writers perceive the role of copyright-related income in their portfolio of earnings to be significant for career sustenance, and whether or not said careers could be properly maintained if copyright-related earnings were removed.

6. Internal Aspect of Copyright: Writers’ Perspectives on Ownership and Control of Economic Rights

52While the legitimacy of the economic role of copyright in writers’ practices was positively affirmed by the interview data, it did not, by any means, indicate that the ‘copyright framework’ was perfect in its operation. However, several writers indicated that copyright could function as an even more important and efficient component of building a successful professional practice, when opportunities arise for authors to own and retain rights, or have more control over their exploitation. Several interviews highlighted initiatives they had taken in directly exploiting some of their economic rights themselves. In this context, the resulting monetary benefits were a contributing factor in emphasising the importance of copyright to their lives as writing professionals.

A. Hard-Fought Rights

  • 71 The term ‘work for hire’ refers to US law on ownership of copyright in a work made for hire, see s (...)

53Mills and Wagner, two figures central to the success of the British comic 2000AD, spoke candidly about their struggles to own rights over their creations in an industry that, in the early years, typically claimed ownership over all IP created by comic artists (writers and illustrators) by treating it as ‘work for hire’.71 They identified the financial benefits for their practices when they had initial ownership of their work, as well as when they retained some control over their rights. They both recollected how they had to fight for deals that would both benefit them in the long term and offer much better rewards than the fixed payment they were receiving for creating some of the most successful and iconic British comics. Mills recalled:

[…] why they decided to give me the copyright I don’t know. It was probably because I had been really relentlessly banging on about it […] You know, just working dawn to dusk you get a good fixed income but it’s not enough. So somewhere down the line I think they must have relented […] they said ‘yeah, if you want copyright on your stories you can’ and so I immediately wrote a whole batch of stories which I still own the copyright on, and I have actually been able to use in other ways, you know? It’s not like they have just been collecting dust.

54Wagner, who was the original writer of the 2000AD story ‘Judge Dredd’, and at the time working in an industry that he describes as ‘just using people, creaming everything off for themselves’, stated that for years he sat by and watched the huge amounts of money his character was generating yet shared none of the rewards. He eventually decided to fight for a share of the royalties that various Judge Dredd licensing deals had earned and was successful; an experience that led him to view writers holding on to their rights as something that is vitally important:

because I got rights, because I fought for my rights in Judge Dredd, I was able to buy a house. Right. Now that, before that I was living on the breadline […] Earning very little. And then, you know, when we eventually fought for our rights and got some sort of rights deal we started earning decent money.

55The benefits of self-employed writing, derived from seeking better returns from copyright exploitation, were noted particularly by writers who worked in the comics industry. For instance, Davis noted that one of the reasons he sought to switch from doing ‘work for hire’ writing, to publishing his own work was to invest in his career and work towards a time ‘later in life’ when royalties might provide a source of income. Consequently, for many interviewees, there was also an aspirational aspect with regard to how they perceived copyright in terms of economic benefits i. e. they wished to own copyright in their works as an investment in the potential for reward from owning and exploiting rights.

B. Rights Reversion

56The examples provided by the interviewees were not restricted to situations in which they felt they weren’t able to own the rights in the first place, or control the rights in their self-employed writing. A number of the interviewees also raised the matter of reversion of rights and highlighted that there are economic gains from having a reversion clause inserted in a publishing contract. In the context of the shift from physical to digital sales it had proved to be a useful means of generating additional revenue from delisted books that a publisher had no intention of reprinting. Once rights were returned, the author was free to self-publish titles electronically so that new value could be extracted from back catalogue items. Arbuthnott for instance felt reversion rights had become important, that the aspect of ownership, and of attaining control, allowed writers to be entrepreneurial, even if the financial rewards were not always significant:

[T]he number of copies sold, though you may not think is worthwhile, but it’s, you know, it’s all adding up in my pocket thank you, and I would like it.

57This pointed to a disjunction between the business interests of the publisher and those of writers. Publishers’ sales figures expectations would have to be met for them to continue publishing a book, or indeed keep it in their catalogue, but self-directed writers would not face the same business pressures when dealing with an electronic format. One author offered another example in which reversion had provided a level of control that suited their objectives while contextualising the role of the publisher:

I’ve had a publisher come to me and say, ‘I would really like to take this book of yours and I could do a hardback in a digital version,’ and I was like, ‘get out of town, what the fuck do I need you for?’ […] I can do that, so the difficult thing is the mass-market paperback and the kind of mass-market distribution to really make those sales, and so they are not doing that job they can just sit there on an ebook and scratch their arses which is, you know they would love to do that, but I personally would not be happy with them doing that.

58Sheridan gave a good example of the importance of reversion rights in terms of how useful they are for elderly authors who may not have made enough money from writing to have been able to plan financially for their retirement. For this group any extra money made from royalties is critical so the reissuing of older out-of-print works as ebooks could prove to be a boon for them:

I mean I know quite a few older authors who have discovered the digital world with vim, you know because they have got this backlist [chuckling] of thirty-five books that literally just sit in libraries because those are the people that read them, they suddenly think, ‘oh I could put these up’ and they do put them up and they get a certain kind of readership online and suddenly there is this kind of extra, extra income, and you know they can keep it up online and pass those kinds of properties onto their kids which is a nice thing to be able to think of doing.

59Anderson was keen to stress the importance of back-catalogue items for writers and talked about having helped others to get their work reissued digitally. In particular, she provided the example of a Scottish writer in her nineties with a substantial body of work built up over years of professional writing:

For instance Alanna Knight […] an historical crime fiction writer, in her nineties now, had this fantastic back catalogue of this Victorian detective set in Edinburgh […] it continues to be published, I mean she does one, one of him every eighteen months, but I helped her get at least half a dozen of her back catalogue online […] that has been fantastic for her because she has a big American readership […] there’s lots of complaints we can make about Amazon, but the truth is the money drops into your bank account once a month.

60However, Arbuthnott noted that, going forward, possible growth in the use of print on demand (POD) by publishers could influence how they approach reversion clauses in future:

I think it has become important, I think it has become more contentious as well because you now have print on demand […] publishers I think may begin to just get a little bit slidy [sic] about what they regard as out of print. And I think that it needs to be quite tight wording, I think, reversion clauses, so that the writer is not being taken advantage of.

  • 72 Gibson, Johnson and Dimita, ‘The Business of Being an Author’, p. 16.
  • 73 Ibid.

61This interview data about the benefits of rights reversion are very much in line with results from the 2014 survey (referred to in Section 3 above), in which a good attempt had been made to understand aspects of copyright contracts that writers enter into. The 2014 survey had found that 57% of respondents’ contracts had reversion clauses, and where there was a reversion clause, 38% of respondents exercised their right under the clause.72 Interestingly, where the right was exercised, the survey found that ‘70% of writers went on to make more money from the work, including by self-publication.’73

62The direct connection between holding onto or reclaiming rights, and their potential to generate earnings in the future was raised by many other interviewees. However, significantly, the interviewees seemed to be quite pragmatic in pointing out that they can never predict what direction their careers might take when they decide to keep their rights, or how much economic return they might see from their rights; however this didn’t, in itself, make their rights unimportant to them. They perceived that not having rights or giving the rights up along the way simply meant that any latent potentiality to benefit financially would disappear; while keeping the rights gave them an opportunity to benefit financially.

C. Awareness of Rights and how to Exploit Them

63Several interviewees emphasised that there was a strong correlation between the economic value of copyright (and the financial benefits they could derive from its protections), and their actual knowledge and awareness (or lack thereof) of the machinations of the publishing industry and the legal frameworks governing it, and their access to professional advice and representation through agents. A number of interviewees remarked that those new to the sector were often unprepared when it came to dealing with matters that were understood to be integral to succeeding as a professional writer: for example, how to read contracts, negotiate percentages, request reversion clauses, pursue foreign rights deals, and avail themselves of licensing opportunities.

64It was clear that writers who had a better awareness of the tangible benefits associated with holding copyright, or had good professional representation, were better positioned to exploit protected works and consequentially succeeded at earning a living exclusively from writing. Mina was quite explicit about this fact and indicated that failure to comprehend the intricacies of the profession, and in particular to properly understand one’s rights, could ultimately determine if a writer will succeed or fail:

I think awareness of the law, awareness of different types of copyright, awareness of the importance of it being a living… of people protecting their work… I think new writers coming up are really unaware of how they can protect their rights, they have no clue, and they learn by trial and error or by making mistakes… if your first few books don’t sell, because the market is so, well, it’s so carefully assessed now… it used to be you could have a good career as a mid-list author and take off at book ten. You can’t do that anymore because they [the publishers] have got all the numbers and they know what’s selling and what’s not… so I think lots of people are losing their books, early doors, and then you just don’t hear from them anymore, we are losing fantastic writers, it’s a real shame.

65Mina gave the example of foreign rights to underline why good knowledge of rights and how they should be exploited was crucial. She pointed out that it was possible to increase income by selling foreign rights to foreign rights agents rather than selling world rights to a British publisher for an advance. She explained:

[…] if you are a crime writer and you sell the foreign rights to a foreign rights agent you can make seven or ten times as much as you do in the British market. Whereas if you sell the world rights in the British market they might not have publishers abroad… So, you know, things like making sure that you sell your rights in the right packages to people is quite important for how much you can make… whenever I meet someone, I always say to them, ‘listen, don’t sell the world rights, only sell the UK rights,’ because otherwise it’s just lost.

  • 74 Kretschmer and Hardwick, ‘Authors’ Earnings from Copyright and Non-copyright Sources’, pp. 30 and (...)
  • 75 Gibson, Johnson and Dimita, ‘The Business of Being an Author’, pp. 12 and 17.

66In the earnings’ surveys (referred to in Section 3 above), there has also been some attempt to measure the extent to which writers have professional representation or seek professional advice. For instance, the 2006 survey found only 65% respondents took professional advice before entering into contracts and 43.5% had agents.74 The 2014 survey found that, consistent with the 2006 survey, 42% of professional authors had agents, but only 53% took professional advice before entering into contracts.75 The interview data in the IC study demonstrates that experienced writers clearly associate the benefits derived from copyright exploitation with both good professional representation and good personal knowledge and awareness of rights and how to utilise them effectively.

7. External Aspect of Copyright

67Although the primary focus of this paper is the legitimacy of the internal aspect of copyright as per the perceptions of writers, it is worth briefly noting some of the interview findings with respect to the external aspect of copyright (the ability to exclude others), an issue that has rarely been focussed on in the economic literature. A large majority of interviewees considered the writer’s ability to exclude others on the basis of copyright, and its potential deterrent effect, as quite important, especially when it came to preventing unauthorised copying and modification by others for commercial gain, and also more generally when unauthorised acts might not be in line with the artist’s political or ideological beliefs. In fact, when asked about the role of copyright in their practice several interviewees associated the question, first and foremost, with the external aspect of copyright; and offered to explain whether or not prevention of infringement was important in their opinion, and if so, when and why.

68Having the ability to exclude others by enforcing copyright (either themselves or through intermediaries such as publishers) was perceived by the interviewees to be economically valuable to their practice, but it was also important to them on a personal level. However, such notions of perceived value were quite variable and markedly contextual; it was the writer’s (or their representative’s) ability to choose whether or not to enforce their rights that was perceived to be important.

69While nearly all the interviewees valued the external aspect of copyright, they were clear that they did not perceive strong or strict enforcement of rights as a necessity in every situation. It was important for some to be able to gauge whether the enforcement was required, dependent upon the context of infringement; crucially this was seen as an expression of the choice afforded by having copyright protection. Having the right to choose and control how others use one’s work is something Czerkawska believed to be valuable:

you should have the right to say no, you, nobody else should be able to come along and take that away from you, and say well you know, I’m going to do something […] Intellectual property, the central creation of what you have made, I do believe very strongly that you should be able to do what you want with that.

70As to when the external aspect of copyright might come into play in interviewees’ practices, online infringement was often provided as an example. However, on this matter, the interviewees differed widely in their views on when enforcement was necessary. Although a number of interviewees thought that some form of rights infringement was inevitable, especially in the digital domain, a variety of responses were offered. For instance, Brookmyre, in the context of file sharing, seemed to accept that with the advent of ebooks it was simply unavoidable that some people would share his work freely:

I am aware that on the internet now people will be passing on links to download like 10,000 books at a time, obviously it’s a concern on one level, yet on another level you think well often it’s a bit like someone lending a book or a bit like when we used to tape records that yes, that was an infringement of copyright but it was also a very effective way of sharing and introducing people to new work.

71While Brookmyre indicated that online enforcement is a matter that is handled by his publishers, he personally viewed some infringement as inevitable, in that there will always be a segment of his readership that will illegally download his work. He did not necessarily see it as something negative:

I think for the most part, maybe I’m being just optimistic, but often it’s people who weren’t going to go and buy your book anyway, and if they end up reading one of your books, that way then there is maybe a chance they will go and buy another one, but maybe they’ll illegally download another one, I don’t know.

72Similarly, Murdoch contextualised things in terms of online music sharing, and expressed the opinion that it this is not necessarily a bad thing, that it can increase an artist’s overall exposure, although he admitted sharing would be problematic if it ever meant that the potential for lost revenue was significant:

I’ve always thought about rights. And I’m probably more relaxed now than I was in the past… [but] if I had a million-selling book tomorrow, and everybody started ripping it off I’d probably be a bit annoyed, I’m a human being.

73In contrast to those who demonstrated a certain amount of contextually bound flexibility in their views on online infringement, a number of other writers were much less forgiving. Clarke, like Brookmyre, understood the challenges presented by so-called ‘free culture,’ but took the opposite view with respect to the online sharing of her works. She was of the opinion that sharing would not necessarily provide the benefits claimed by others and that not everyone would see a general upturn in readership. According to Clarke, a direct relationship exists between the loss of book sales and the potential for this to damage a writer’s chances of finding new book deals or renewing existing contracts: which, in turn, could serve to undermine one’s ability to continue earning a living from writing. Her perception was that infringement amounted to theft:

[W]ell, it feels like it’s stealing from me basically. And it’s, the more it happens, for some authors, if it is taking away that many sales, that can damage their chances of getting another contract. So that can stop them writing books. But people don’t see it as stealing and I do.

74Clarke was also eager to highlight that the majority of writers do not earn significant amounts for their activities (a point that was raised by many interviewees) so percentages received for book sales were squeezed when readers did not pay for titles. For her, and several other interviewees, there was an overarching sense that rights generate income and therefore are an essential component of sustaining a writing career, so the external aspect of copyright mattered economically:

well, it’s the revenue source, it’s my life, and my livelihood, and if I don’t get paid properly for that, you know, which is a small amount anyway then I would have to stop writing books… it’s intellectual property. It’s not because I put a piece of myself into it, it’s just, it’s lost income.

75The perspectives on the necessity of rights enforcement were heterogeneous. This also applied to contexts other than online infringement. However, variables such as the nature and context of infringement, its potential economic or reputational impact on an individual practice, and personal or ideological beliefs, were some of the factors that interviewees mentioned in assessing whether or not rights should be enforced. For example, some considered fanfiction to be paying homage to an author, and as the kind of activity that they would deem acceptable, but infringements that are attempts by others to profit from their works are unacceptable.

76Overall, it was clear that, despite the existence of differing views regarding the point at which the external aspect of copyright became relevant, and for which reason (economic sustenance of their creative practice or more personal reasons), the interviewees were unanimous in seeing the external aspect of copyright as crucial in protecting their creative interests, and as something that afforded them the ability to choose how it is contextually applied. Recent empirical research on copyright and writers in the UK has largely focussed on the internal aspect of copyright (exploitation of rights and earnings), but the findings in this section suggest that the external aspect (ability to exclude others) also has an important value in writers’ everyday practice and cannot be ignored in assessing the legitimacy of copyright. Future research in this area would benefit from acknowledgement and assessment of the potential economic value of the external aspect of copyright.

8. Conclusion

77This chapter focussed on writers and copyright with an emphasis on writers’ relationship with copyright in their everyday practice. After reviewing two recent strands of empirical research that question the legitimacy of copyright law in the context of benefits accruing to creative practitioners (in Section 3), the chapter drew on the IC study (in Sections 5–7) to provide original accounts of how writers relate to copyright law. The thematic findings demonstrate that writers value both the internal and external aspects of copyright in terms of their careers and more personally.

78As to the internal aspect of copyright, the interview data indicates that writers place significant value on the direct monetary benefits afforded by the exploitation of the copyright in their writing. Irrespective of the amount and type of associated earnings, it emerged that the authors perceived clear monetary benefits, as well as personal benefits in some cases, from holding and exploiting the economic rights afforded by copyright. This applied to those whose income largely stemmed from writing, as well as those who were not yet earning (or indeed may never earn) enough to depend solely on writing as a livelihood. It appeared that all earnings from copyright exploitation counted, and that such income was vital for the sustenance of any long-term creative practice — and even more so when the extant uncertainties connected with the success or failure of a publication, or indeed the size of future royalty yields, are considered. The financial rewards were perceived to be a crucial part of the ‘earnings portfolio’ that enabled them to sustain writing careers, but also acted as recognition and reward.

79Additionally, as to the internal aspect of copyright, the interview data also showed that writers do not only associate economic rights with the actual financial return they receive, but also believe that owning and controlling such rights as writers carries a potential for better earnings, but not a guarantee. Finally, the interview data also demonstrated that the external aspect of copyright, although often ignored in economic literature, is also seen as valuable by writers and is perceived to be crucial in protecting their creative interests. The value associated with the writer’s ability to choose whether or not to enforce their rights, and the relevance of the context of the infringement to this choice, demonstrated that writers’ relationship with copyright is complex and cannot be studied only in terms of monetary returns and earnings surveys alone.

80What do these findings imply with respect to the legitimacy of copyright? A focus on earnings data alone may suggest that copyright has little or no value in writers’ careers. However, richer, complementary, socio-legal work examining the overall role of copyright (both internal and external aspects) in the everyday practice of writers, and captured by the research presented in this chapter, strongly challenges this suggestion. Original first-hand accounts from writers indicate that copyright plays a positive role in their practices, albeit not a perfect role. Further, the legitimacy of copyright cannot be judged by whether it can ensure sufficient earnings for all writers to make a living, or whether it can ‘secure the financial independence of creators’. Copyright provides a mechanism for writers to enter the market and receive monetary reward for their work; but it does not guarantee success in said market. It appears that the writer interviewees are aware of the role that copyright plays in supporting their practices, in that it provides them both with an opportunity and potential to earn, yet they do not expect copyright itself to guarantee market success.

81The scholarship on the negative space of IP generally seeks to challenge the assumptions of copyright policy. In contrast, this chapter affirms that some of the policy assumptions — copyright provides recognition, payment, and protection (set out at the start of the chapter) — hold true so far as writers’ own beliefs and perspectives are concerned, albeit heterogeneously, and in a complex manner. While said scholarship questions the legitimacy of copyright law in some areas of creative production (e.g. stand-up comedians, tattoo artists, and haute-cuisine chefs), this chapter demonstrates that copyright law continues to play a role in the long standing, albeit changing, profession of writing.

82Is copyright relevant to the everyday lives of writers and seen as valuable by writers in the context of professional writing? The answer from the IC study is a resounding yes. However, at a broader level, this answer also poses critical questions for copyright policy: could copyright serve writers’ interests more effectively? Clearly, these are difficult times for writers. In an environment in which writing incomes are falling and writing careers are markedly precarious, could rules strengthening authorial ownership and control of economic rights, and their exploitation, be a possible way forward?

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European Commission (2018) ‘Digital Single Market Policy: Copyright’, https://ec.europa.eu/digital-single-market/en/policies/copyright

Fauchart, E. and E. Von Hippel (2006) ‘Norms-based Intellectual Property Systems: The Case of French Chefs’, Organization Science 19.2 (2008), 187–201.

Fiesler, C., J. L. Feuston and A. S. Bruckman (2015) ‘Understanding Copyright Law in Online Creative Communities’, in Proceedings of the 18th ACM Conference on Computer Supported Cooperative Work & Social Computing (CSCW ‘15), 116–29.

Green Party (2016) ‘Economy’, https://policy.greenparty.org.uk/ec.html

— (27 April 2015) ‘Greens to Review Copyright Policy’, https://www.greenparty.org.uk/news/2015/04/27/greens-to-review-copyright-policy/

— (2015) ‘Economy: Part of the Green Party Policies for a Sustainable Society’, https://policy.greenparty.org.uk/assets/images/policy/pdfs/Economy.pdf

— (2015) ‘For the Common Good: General Election Manifesto 2015’, https://www.greenparty.org.uk/assets/files/manifesto/Green_Party_2015_General_Election_Manifesto_Searchable.pdf

Gibson, J., P. Johnson and G. Dimita (2015) The Business of Being an Author: A Survey of Authors’ Earnings and Contracts (London: Queen Mary, University of London), https://orca.cf.ac.uk/72431/1/FinalReport-ForWebPublication.pdf

Glaser, B. G. (1978) Theoretical Sensitivity: Advances in the Methodology of Grounded Theory (Mill Valley: Sociology Press).

— and A. L. Strauss (1967) The Discovery of Grounded Theory: Strategies for Qualitative Research (London: Aldine Publishing).

Hargreaves, I. (18 May 2011) ‘Digital Opportunity: A Review of Intellectual Property and Growth’, https://www.gov.uk/government/publications/digital-opportunity-review-of-intellectual-property-and-growth

Hemphill, C. S. and J. Suk (2009) ‘The Law, Culture and Economics of Fashion’, Stanford Law Review 61, 1147–200.

Katzenberger, P. et al. (2009) ‘Comment by the Max-Planck Institute on the Commission’s Proposal for a Directive to Amend Directive 2006/116 Concerning the Term of Protection for Copyright and Related Rights’, European Intellectual Property Review 31.2, 59–72.

Kheria, S., C. Waelde, and N. Levin (2018) ‘Digital Transformations in the Arts and Humanities: Negotiating the Copyright Landscape in the United Kingdom’, in R. Hobbs (ed.), The Routledge Companion to Media Education, Copyright and Fair Use (Abingdon: Routledge), pp. 182–200.

Kretschmer, M. (21 May 2012) ‘Does Copyright Law Matter? An Empirical Analysis of Creators Earnings’, SSRN Electronic Journal [n.p.].

Kretschmer, M. (2010) ‘Copyright and Contract Law — Regulating Creator Contracts: The State of the Art and a Research Agenda’ Journal of Intellectual Property Law 18.1, 141–72.

Kretschmer, M. et al. (2008) ‘Creativity Stifled? A Joint Academic Statement on the Proposed Copyright Term Extension for Sound Recordings’, European Intellectual Property Review 30.9, 341–47.

— and P. Hardwick (2007) Authors’ Earnings from Copyright and Non-copyright Sources: A Survey of 25,000 British and German Writers (Bournemouth: Bournemouth University), https://microsites.bournemouth.ac.uk/cippm/files/2007/07/ACLS-Full-report.pdf

Lessig, L. (2005) ‘Does Copyright Have Limits: Eldred v. Ashcroft and Its Aftermath’, Queensland University of Technology Law and Justice Journal 5.2, 219–30.

Lucas, C. (25 April 2015) ‘Copyright — Standing up for Brighton’s Creative Industries, Artists and Writers’, https://www.carolinelucas.com/latest/copyright-standing-up-for-brightons-creative-industries-artists-and-writers

McIntyre, S. (27 April 2017) ‘In Defense of Copyright’, Jabberworks, http://jabberworks.livejournal.com/703055.html

Merges, R. P. (1 January 2016) ‘Philosophical Foundations of IP Law: The Law and Economics Paradigm’, UC Berkeley Public Law Research Paper No. 2920713, [n.p.].

Michael, L. (2014) ‘Making a Living as a Writer’, in Steven Earnshaw (ed.), The Handbook of Creative Writing (Edinburgh: Edinburgh University Press), 510–17.

Nordicity (June 2015) ‘Literature and Publishing Sector Review’, Creative Scotland.

Oliar, D. and C. Sprigman (2008) ‘There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy’, Virginia Law Review 94.8, 1787–867, http://www.virginialawreview.org/sites/virginialawreview.org/files/1787.pdf

Perzanowski, A. K. (2013) ‘Tattoos & IP Norms’, Minnesota Law Review 98 (2013), 511–91.

Pollock, R. (2009) ‘Forever Minus a Day? Calculating Optimal Copyright Term’, Review of Economic Research on Copyright Issues 6.1, 35–60.

Pool, K. (2000) ‘Love, Not Money’, The Author, 58–66.

Posner, R. (2003) ‘The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique in Eldred v Ashcroft’, The Supreme Court Review 2003, 143–62.

Puri, K. (1990) ‘The Term of Copyright Protection — Is it Too Long in the Wake of New Technologies?’, European Intellectual Property Review 12.1, 12–20.

Rahmatian, A. (2009) ‘Dealing with Rights in Copyright-Protected Works: Assignments and Licences,’ in E. Derclaye (ed.), Research Handbook on the Future of EU Copyright (Cheltenham: Edward Elgar), pp. 286–316.

Raustiala, K. and C. J. Sprigman (13 September 2016) ‘When Are IP Rights Necessary? Evidence from Innovation in IP’s Negative Space’, UCLA School of Law, Law and Economics Research Paper Series No. 16–15 [n.p.].

—and C. J. Sprigman (2006) ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review 92.8, 1687–777.

Rosenblatt, E. L. (2011) ‘A Theory of IP’s Negative Space’, Columbia Journal of Law & the Arts 34.3, 317–65.

Salter, M. and J. Mason (2007) Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Harlow: Pearson Education).

Scafidi, S. (15 March 2016) ‘Fashion Designers Deserve The Same Protection as Other Creatives’, The Business of Fashion, https://www.businessoffashion.com/community/voices/discussions/what-is-the-real-cost-of-copycats/op-ed-fashion-designers-deserve-the-same-protection-as-other-creatives

— (2006) ‘Intellectual Property and Fashion Design’, in P. K. Yu (ed.), Intellectual Property and Information Wealth: Copyright and Related Rights, Vol. 1 (Santa Barbara, CA: Praeger Publishers Inc.), 115–32.

Squires, C. (2005) ‘Novelistic Production and the Publishing Industry in Britain and Ireland’, in B. W. Shaffer (ed.), A Companion to the British and Irish Novel, 1945–2000 (Oxford: Wiley Blackwell), pp. 177–93, https://doi.org/10.1002/9780470757611.ch12

Strauss, A. L. and J. M. Corbin (1998) Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory (Thousand Oaks: Sage Publications).

Torremans, P. (2009) ‘Questioning the Principles of Territoriality: The Determination of Territorial Mechanisms of Commercialisation’, in P. Torremans (ed.), Copyright Law: A Handbook of Contemporary Research (Cheltenham: Edward Elgar), pp. 460–82.

Waelde, C. et al. (2016) Contemporary Intellectual Property: Law and Policy (Oxford: Oxford University Press).

Watt, R. (2013) ‘Copyright Law and Royalty Contracts’, in R. Towse and C. Handke (eds.), Handbook on the Digital Creative Economy (Cheltenham: Edward Elgar), pp. 197–208.

Wheeler, S. and P. Thomas (2000) ‘Socio-Legal Studies’, in D. Hayton (ed.), Law’s Future(s) (Oxford: Hart Publishing), pp. 267–80.

Notes

1 European Commission, ‘Digital Single Market Policy: Copyright’, 2018, https://ec.europa.eu/digital-single-market/en/policies/copyright

2 CREATe is a national research hub based in the United Kingdom and funded by Research councils UK. The centre’s aim is to investigate the future of creative production in the digital age, and in particular the role of copyright. See www.create.ac.uk. Unless otherwise stated, all quoted interviews were undertaken as part of this study. The author would like to thank the interviewees and research informants for facilitating and contributing to the underlying research project.

3 The chapter focusses on economic rights under copyright and not moral rights.

4 The Green Party is a left-wing political party, see https://www.greenparty.org.uk/we-stand-for/; see generally N. Carter, ‘The Greens in the UK General Election of 7 May 2015’, Environmental Politics, 24.6 (2015), 1055–60.

5 Green Party, ‘Economy: Part of the Green Party Policies for a Sustainable Society’, EC1011. Policy version as at April 2015 (on file with the author; no longer available online).

6 See Sarah McIntyre, ‘WHAT? Green Party aim to cut down copyright to 14 years. How are we supposed to earn a living? http://policy.greenparty.org.uk/ec.html’, Twitter, 22 April 2015, https://twitter.com/jabberworks/status/590978835979571201

7 Green Party, ‘For the Common Good: General Election Manifesto 2015’, p. 61, https://www.greenparty.org.uk/assets/files/manifesto/Green_Party_2015_General_Election_Manifesto_Searchable.pdf

8 For example, see tweets on 23 April 2015 by Linda Grant: https://twitter.com/lindasgrant/status/591119358988050432/photo/1; and by Philip Pullman: https://twitter.com/PhilipPullman/status/591167079493033984

9 See K. Brown, ‘Authors Criticise Green Party Plan to Reduce Copyright to 14 Years’, Telegraph, 23 April 2015, http://www.telegraph.co.uk/culture/books/booknews/11557810/Authors-criticise-Green-Party-plan-to-reduce-copyright-to- 14-years. html; J. Elgot, ‘Green Party Plan to Limit Copyright Attacked by Writers and Artists’, The Guardian, 23 April 2015, https://www.theguardian.com/politics/2015/apr/23/green-party-plan-to-limit-copyright-attacked-by-writers-and-artists

10 K. Brown, ‘Authors Criticise Green Party Plan’, Telegraph, 23 April 2015, http://www.telegraph.co.uk/culture/books/booknews/11557810/Authors-criticise-Green-Party-plan-to-reduce-copyright-to-14-years.html

11 Ibid.

12 Ibid.

13 Caroline Lucas, ‘Copyright — Standing up for Brighton’s Creative Industries, Artists and Writers’, 25 April 2015, https://www.carolinelucas.com/latest/copyright-standing-up-for-brightons-creative-industries-artists-and-writers

14 Green Party, ‘Greens to Review Copyright Policy’, 27 April 2015, https://www.greenparty.org.uk/news/2015/04/27/greens-to-review-copyright-policy/

15 K. Brown, ‘Green Party to Review Controversial Copyright Plans’, Telegraph, 27 April 2015, http://www.telegraph.co.uk/culture/books/booknews/11565548/Green-Party-to-review-controversial-copyright-plans.html

16 While legal reform may not have been plausible in this context, it is worth noting that the duration of copyright protection has proven to be a particularly controversial aspect of the copyright framework, and one that has received significant attention in academic scholarship in the last few decades. Not only is the current term of protection seen as too long because it restricts the public domain and creates the problem of orphan works, various pieces of legislation that have extended the duration of protection in both the EU and US have been strongly critiqued. For examples pertaining to the EU see K. Puri ‘The Term of Copyright Protection — Is it Too Long in the Wake of New Technologies?’, European Intellectual Property Review, 12.1 (1990), 12–20; N. Dawson, ‘Copyright in the European Union — Plundering the Public Domain’, Northern Ireland Legal Quarterly, 45 (1994), 193–209; P. Katzenberger et al., ‘Comment by the Max-Planck Institute on the Commission’ s Proposal for a Directive to Amend Directive 2006/116 Concerning the Term of Protection for Copyright and Related Rights’, European Intellectual Property Review, 31.2 (2009), 59–72; M. Kretschmer et al., ‘Creativity Stifled? A Joint Academic Statement on the Proposed Copyright Term Extension for Sound Recordings’, European Intellectual Property Review, 30.9 (2008), 341–47; For examples pertaining to the US, see R. Posner, ‘The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique in Eldred v Ashcroft’, The Supreme Court Review, 2003 (2003), 143–62; L. Lessig, ‘Does Copyright Have Limits: Eldred v. Ashcroft and Its Aftermath’, Queensland University of Technology Law and Justice Journal, 5.2 (2005), 219–30; R. Brauneis, ‘A Brief Illustrated Chronicle of Retroactive Copyright Term Extension’, Journal of the Copyright Society of the USA, 62.4 (2015), 479–502.

17 It was only in 2010 that the Green Party returned its first Member of Parliament, Caroline Lucas, for the constituency of Brighton Pavilion; while Lucas was successfully re-elected in the 2015, the party did not gain further seats in that election. See: https://www.parliament.uk/biographies/commons/caroline-lucas/3930

18 See Art. 7, Berne Convention for the Protection of Literary and Artistic Works, https://wipolex.wipo.int/en/text/283698; Directive 2011/77/EU, http://data.europa.eu/eli/dir/2011/77/oj

19 K. Brown, ‘Green Party to Review Controversial Copyright Plans’, Telegraph, 27 April 2015, http://www.telegraph.co.uk/culture/books/booknews/11565548/Green-Party-to-review-controversial-copyright-plans.html

20 Green Party, ‘Economy’, 2016, https://policy.greenparty.org.uk/ec.html

21 See Tom Cox, 23 April 2015, https://twitter.com/cox_tom/status/591130047882342400/photo/1

22 The extensive critique of the current term of protection, and recent extensions to it, indicates a clear trend in academic scholarship suggesting that the current duration of protection is too long. See footnote no. 16 above. However, there doesn’t appear to be any academic consensus on the optimal duration of copyright protection i.e. how long protection should last.

23 K. Brown, ‘Authors Criticise Green Party Plan to Reduce Copyright to 14 Years’, Telegraph, 23 April 2015, http://www.telegraph.co.uk/culture/books/booknews/11557810/Authors-criticise-Green-Party-plan-to-reduce-copyright-to-14-years.html; see also, R. Pollock, ‘Forever Minus a Day? Calculating Optimal Copyright Term’, Review of Economic Research on Copyright Issues, 6.1 (2009), 35–60.

24 See S. McIntyre, ‘In Defense of Copyright’, Jabberworks, 27 April 2017, http://jabberworks.livejournal.com/703055.html

25 A further strand of such empirical research has examined how copyright can be a hindrance to certain creative practices and creative communities but doesn’t question the legitimacy of the framework. For example, for the impact on arts and humanities researchers, see S. Kheria, C. Waelde, and N. Levin, ‘Digital Transformations in the Arts and Humanities: Negotiating the Copyright Landscape in the United Kingdom’, in R. Hobbs (ed.), The Routledge Companion to Media Education, Copyright and Fair Use (Abingdon: Routledge, 2018), pp. 182–200; for the impact on documentary filmmakers, see P. Aufderheide and P. Jaszi, ‘Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers’, Center for Social Media, 2004, http://archive.cmsimpact.org/sites/default/files/UNTOLDSTORIES_Report.pdf; for the impact on online creative communities, see C. Fiesler, J. L. Feuston and A. S. Bruckman, ‘Understanding Copyright Law in Online Creative Communities’, in Proceedings of the 18th ACM Conference on Computer Supported Cooperative Work & Social Computing (CSCW ‘15), 2015, 116–29.

26 Section 1, Copyright Designs and Patents Act 1988 (CDPA) in the United Kingdom, https://www.legislation.gov.uk/ukpga/1988/48/contents

27 C. Waelde et al., Contemporary Intellectual Property: Law and Policy (Oxford: Oxford University Press, 2016), para 1.44; P. Torremans, ‘Questioning the Principles of Territoriality: The Determination of Territorial Mechanisms of Commercialisation’, in P. Torremans (ed.), Copyright Law: A Handbook of Contemporary Research (Cheltenham: Edward Elgar, 2009), pp. 460–82 (p. 461); Ashdown v Telegraph [2001] E.M.L.R. 44 para 30.

28 A. Rahmatian, ‘Dealing with Rights in Copyright-Protected Works: Assignments and Licences,’ in E. Derclaye (ed.), Research Handbook on the Future of EU Copyright (Cheltenham: Edward Elgar, 2009), pp. 286–316 (p. 286–87).

29 s. 16 CDPA.

30 ss. 90 and 92 CDPA.

31 These two categories are classified as ‘Statutory right: individually negotiated income’ and ‘Statutory right: collectively negotiated income’, in M. Kretschmer, ‘Copyright and Contract Law — Regulating Creator Contracts: The State of the Art and a Research Agenda’ Journal of Intellectual Property Law, 18.1 (2010), 141–72.

32 Kretschmer, ‘Copyright and Contract Law’, p. 143; on the significance of royalty contracts between authors and intermediaries, see generally R. Watt, ‘Copyright Law and Royalty Contracts’, in R. Towse and C. Handke (eds.), Handbook on the Digital Creative Economy (Cheltenham: Edward Elgar, 2013), pp. 197–208.

33 Nordicity, ‘Literature and Publishing Sector Review’, Creative Scotland, June 2015, p. 22.

34 K. Pool, ‘Love, Not Money’, The Author (Summer 2000), 58–66.

35 C. Squires, ‘Novelistic Production and the Publishing Industry in Britain and Ireland’, in B. W. Shaffer (ed.), A Companion to the British and Irish Novel, 1945–2000 (Oxford: Wiley Blackwell, 2005), pp. 177–93 (p. 190), https://doi.org/10.1002/9780470757611.ch12

36 M. Kretschmer and P. Hardwick, Authors’ Earnings from Copyright and Non-copyright Sources: A Survey of 25,000 British and German Writers (Bournemouth: Bournemouth University, 2007), https://microsites.bournemouth.ac.uk/cippm/files/2007/07/ACLS-Full-report.pdf, p.60.

37 L. Michael, ‘Making a Living as a Writer’, in S. Earnshaw (ed.), The Handbook of Creative Writing (Edinburgh: Edinburgh University Press, 2014), pp. 510–17 (p. 512).

38 Kretschmer and Hardwick, ‘Authors’ Earnings from Copyright and Non-copyright Sources’.

39 Out of the total, 1,334 contained useful information although the number of valid responses on some of the survey questions is below this figure. Ibid., pp. 73–74.

40 Ibid., pp. 10 and 86.

41 Ibid., p. 24.

42 Ibid., pp. 8 and 78.

43 Ibid., p. 97.

44 Ibid., p. 22.

45 Ibid., pp. 5 and 99.

46 Ibid., p. 24.

47 Ibid., p. 23.

48 J. Gibson, P. Johnson and G. Dimita, The Business of Being an Author: A Survey of Authors’ Earnings and Contracts (London: Queen Mary, University of London, 2015), https://orca.cf.ac.uk/72431/1/FinalReport-ForWebPublication.pdf

49 Although the number of responses to some of the survey questions is below this number. Ibid., p. 6.

50 Ibid., pp. 9, 10, and Table 2.4.

51 Ibid., p. 9 and Table 2.3.

52 Ibid., p. 8.

53 Ibid., p. 10 and Table 2.6.

54 ALCS, ‘Authors’ Earnings: A Survey of UK Writers’, June 2018, https://wp.alcs.co.uk/app/uploads/2018/06/ALCS-Authors-earnings-2018.pdf

55 Ibid., p. 2.

56 Ibid., p. 4.

57 Ibid., p. 3.

58 An early review of several earnings surveys from a range of creative sectors (writing, music, and visual arts) questions whether copyright law matters to creators to economically because it ‘empirically fails to secure the financial independence of creators’. M. Kretschmer, ‘Does Copyright Law Matter? An Empirical Analysis of Creators Earnings’, 21 May 2012, p. 1.

59 D. Oliar and C. Sprigman, ‘There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy’, Virginia Law Review, 94.8 (2008), 1787–1867, http://www.virginialawreview.org/sites/virginialawreview.org/files/1787.pdf; E. Fauchart and E. Von Hippel, ‘Norms-based Intellectual Property Systems: The Case of French Chefs’, Organization Science 19.2 (2008), 187–201; A. K. Perzanowski, ‘Tattoos & IP Norms’, Minnesota Law Review 98 (2013), 511–91.

60 E. L. Rosenblatt, ‘A Theory of IP’s Negative Space’, Columbia Journal of Law & the Arts, 34.3 (2011), 317–65; K. Raustiala and C. J. Sprigman, ‘When Are IP Rights Necessary? Evidence from Innovation in IP’s Negative Space’, 13 September 2016, UCLA School of Law, Law and Economics Research Paper Series No. 16–15.

61 K. Raustiala and C. Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, Virginia Law Review, 92.8 (2006), 1687–777; cf. Robert P. Merges, ‘Philosophical Foundations of IP Law: The Law and Economics Paradigm’, 1 January 2016, UC Berkeley Public Law Research Paper No. 2920713; see also, C. S. Hemphill and J. Suk, ‘The Law, Culture and Economics of Fashion’, Stanford Law Review 61 (2009), 1147–200; S. Scafidi, ‘Intellectual Property and Fashion Design’, in Peter K. Yu (ed.), Intellectual Property and Information Wealth: Copyright and Related Rights, Vol. 1 (Santa Barbara, CA: Praeger Publishers Inc., 2006), p. 115–32; S. Scafidi, ‘Fashion Designers Deserve The Same Protection as Other Creatives’, The Business of Fashion, 15 March 2016, https://www.businessoffashion.com/community/voices/discussions/what-is-the-real-cost-of-copycats/op-ed-fashion

62 Raustiala and Sprigman, ‘When are IP rights Necessary?’, p. 6.

63 See I. Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’, 18 May 2011, https://www.gov.uk/government/publications/digital

64 A pre-launch consultation for the CREATe centre had highlighted ‘the importance of reflecting the interests of the individual creator in debates about copyright’, see: www.create.ac.uk/launch/

65 Grounded theory originated in the works of Barney Glaser and Anselm Strauss and involves an inductive process in which theory is ‘derived from data, systematically gathered and analyzed through the research process’ and ‘in this method, data collection, analysis, and eventual theory stand in close relationship to one another.’ A. L. Strauss and J. M. Corbin, Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory (Thousand Oaks: Sage Publications, 1998), p. 12. See also, B. G. Glaser and A. L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (London: Aldine Publishing, 1967); B. G. Glaser, Theoretical Sensitivity: Advances in the Methodology of Grounded Theory (Mill Valley: Sociology Press, 1978). ‘Socio-legal studies are a branch of legal studies that are distinguished from doctrinal research through the deployment of one or more research methodologies drawn largely but not exclusively from the social sciences.’ M. Salter and J. Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Harlow: Pearson Education, 2007), p. 132. See also, S. Wheeler and P. Thomas, ‘Socio-Legal Studies’, in D. Hayton (ed.), Law’s Future(s) (Oxford: Hart Publishing, 2000), pp. 267–80.

66 Key arts events and festivals, taking place within the duration of the research project, 2013–2017, were identified and creators participating in such events were randomly sampled from the festival guides; venues and hubs that showcase creative works and were industry partner associates of the CREATe centre were contacted to facilitate engagement with creators at their upcoming events, or to suggest other venues or hubs that could be contacted. Notable events, spaces, and organisations, that enabled observations and interviews with writers included GoNorth, the Edinburgh International Book Festival, and a three-week visiting scholar position at Master-Artist-in-Residence program no. 155 at Atlantic Center for the Arts.

67 The incident outlined in Section 2 is drawn from such ethnography.

68 Being qualitative in nature, the study is not statistical and the findings are not designed to be used to draw general inferences about the writing practices of all writers. Indeed, as will be demonstrated, even the writers whose practices are discussed here are different in nature, and they are informed by a range of factors in their meaning-making and decision-making around copyright.

69 See https://www.johnkeay.com/biography

70 For the Royal Literary Fund, see https://www.rlf.org.uk/home/about-the-rlf/

71 The term ‘work for hire’ refers to US law on ownership of copyright in a work made for hire, see s.101 US Copyright Act 1976, https://www.copyright.gov/title17/. Under US law, the authorship and first ownership of copyright vests with the employer or commissioning client, and not the artist, see s.201 Copyright Act 1976. The interviewees often used the US terminology, as a short hand, to simply indicate situations where they did not have first ownership of copyright in their work.

72 Gibson, Johnson and Dimita, ‘The Business of Being an Author’, p. 16.

73 Ibid.

74 Kretschmer and Hardwick, ‘Authors’ Earnings from Copyright and Non-copyright Sources’, pp. 30 and 174.

75 Gibson, Johnson and Dimita, ‘The Business of Being an Author’, pp. 12 and 17.

Auteur

A Senior Lecturer in Intellectual Property Law at the University of Edinburgh. She is also a member of SCRIPT, a law and technology research centre in Edinburgh Law School. She combines legal expertise in copyright and related rights with socio-legal research on intellectual property law in the real world. Her research has examined how copyright intersects with the everyday lives and creative practices of digital artists, online creative communities, arts and humanities researchers, and professional creators and performers. Smita was PI on two RCUK funded projects (Copyright and Individual Creators; Copyright policy and Creators’ Organisations) as part of CREATe. She is a co-author of the textbook Contemporary Intellectual Property: Law and Policy (2013, 2016, 2019). She promotes IP awareness through speaking to creative communities and is active in public engagement events (Edinburgh Festival Fringe shows 2017–2019).

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