Thursday, 19 May 2011

Early responses to Hargreaves: at least the Pirates are pleased ...

But is it the Ultimate Wisdom?
The content of Digital Opportunity, as the Hargreaves Review is now to be known, has been swiftly and efficiently publicised by a combination of social, asocial and antisocial media to the point at which it has hardly even news any more. A handy summary of its recommendations can be found here.  This post focuses on early responses to it.

Mark Owen, head of the IP practice at media and entertainment law firm Harbottle & Lewis, says:
"Most of the sectors the report affects, whether creators, owners or users of rights will find things to quibble with [Given the tension between opposing stakeholder interests in every area of copyright, this might be expected]. Some of its proposals are not feasible, or are not much more than good intentions. It is also determinedly non radical, which will disappoint some who expected big immediate changes. ... [T]his is a prospectus, which lays out the scope of what should be looked at, but with plenty of scope still for detailed policy consideration and argument. And the report's approach recognises that simplistic broad strokes are difficult to make in the complex, and interconnected world of IP.

The people who face the most challenges from the report are the government, as Hargreaves repeatedly makes the point that the changes he advocates have to be brought about through serious governmental effort and application [This should surely have been expected in a field which is heavily overlaid with existing legislation, much of which is or should be in accord with international or European norms]. This may not be what the government were after and much of this work will be costly.

When David Cameron set the review up he made much of the benefits he saw from introducing a fair use right and cynics detected in this an attempt to appear pro innovation without the government having to do much, in particular not spend money such as through tax breaks. As plenty of commentators said at the time, EU law would not allow this. Hargreaves has echoed that and dismissed the possibility of a fair use law. Instead he has listened and listed a large number of less radical changes government must consider.

The changes he suggests to basic copyright law are relatively minor. The suggestion of a format shifting right was widely predicted, not least as the previous government had said it would introduce such an exception in 2006 but never managed to do so. A parody right is also given another outing despite having recently been considered in detail by a government review and rejected [f parody is to be reconsidered, it seems silly to consider it in the context of copyright alone, without taking note of the possible need to do likewise in trade mark and design law]. Perhaps the most important idea is that the UK should introduce the same exceptions to copyright as the rest of the EU. Bringing our law more into line internationally is worth considering. From the perspective of important trading partners such as the US and the EU much about UK copyright law seems odd and out of step, and this costs us. ...

Will the Review end up making any difference? The Gowers Review of IP in 2006 was also well-written and thought out [I'd contest both of these propositions, particularly the latter -- Gowers was peppered with oddities, as many commentators pointed out at the time], with many interesting proposals. Many of the easy ones were eventually implemented but plenty were ignored by government. Hopefully this time the government will do more and will learn from the Gowers experience, so we are not having yet another trumpeted review of IP in 5 years time."
Ilya Kazi, a partner in the patent and trade mark attorneys Mathys & Squire, describes the Review as a "missed opportunity", adding:
"Many of the recommendations of the Hargreaves review are sensible and represent a positive step towards renewing outdated intellectual property and copyright laws that until now have in some areas been restrictive and unworkable.
“However, the review has ... fallen short of David Cameron’s specific vision of creating an environment where companies like Google can flourish [If you listen carefully, you can hear the sound of thousands of readers sighing "Thank heavens for that!"].
“In particular the review supports the current level of protection for technology-related patents in the UK and recommends that we should resist broadening the scope of what can and cannot be protected [but let's not forget that, even for 'non-protected' software inventions, a measure of legal protection through copyright still exists]. It is precisely because of the more open policy in the US that it has been much easier for internet and technology businesses to safeguard their ideas and in turn access investment [I suggest here that this line is at best unproven and at worst a fallacy: it's the relatively loose competition laws which might make the difference]. 
In my view, some more radical thinking in the way we approach protection for the software industry is needed to ensure the UK becomes an ideal location for technology entrepreneurs. Unless we address this issue, the UK will never foster the next Google.”
The official Marks & Clerk early response to the Review, from partner Simon Mounteney, makes the following points:
"The aims of review are laudable and it rightly identifies some of the pressing problems with our current IP regime. It is well-documented that aspects of our IP laws are out of sync with the digital age, and that these problems can act as a barrier to innovation ["can" is not the same as "do".  Copyright owners identify a high level of unauthorised use that cannot be easily detected and which is uneconomical to enforce, which would suggest that the law is widely ignored and rarely enforced. If this is the case, it presumably isn't acting as a barrier to very much at all]. ...
 Britain ’s IP laws are so dependent on myriad international and European treaties that unilateral reform of our copyright and patent systems is impossible to achieve. Real reform will need to be pursued at a European or international level, and many of the proposed solutions will need significant attention to detail in order to become viable [cf the comment earlier about how we should bring UK law into line with the rest of the EU ...]. 
His partner, solicitor Gregor Grant, adds:
"Copyright licensing is a minefield. A single work can have several rights owners, each owning different slices of the pie. The digital revolution has made it yet more difficult for anyone who wants to broadcast - or even play - works such as music [Hasn't the digital revolution made it easier to broadcast or play? The difficult thing now, as before, is to do it legally]. The problem is self-evident; the solution is not. The report identifies and analyses the problem. It points a finger in the direction of a solution, which is a centralised digital registry, allowing people to use copyrighted works for a fee - a bit like a scaled-up version of the Performing Rights Society but not limited to music alone. But it does not hand out a packaged solution. These days, no national government can hope to do anything significant with copyright law unilaterally. There are simply too many international conventions, plus the fact that much of European copyright law has to adhere to a common format. .. ".
Moving now to industry, Katja Hall (Confederation of British Industry Chief Policy Director) said:
"... The ... voluntary Digital Copyright Exchange ...should make it easier for businesses and individuals to legitimately access and pay for copyrighted material, while allowing rights owners to retain control of how their content is used and sold. However, robust copyright protection should be available to all, and preferential enforcement action for material registered on the Digital Copyright Exchange must be avoided [I'm not sure what this means. Can anyone clarify or explain?]. Instead the Exchange should be a collaboration between content creators and the technology sector [ditto]. 
Enforcement of IP rights, both at home and abroad, will remain one of the biggest issues for firms in the knowledge economy. Those firms will now be looking for reassurance from the Government that it will champion international enforcement, which is so critical to an export-led economic recovery.”[How interesting: the CBI, which represents industries per se rather than rights-owners, seems more interested in enforcement than in access and use]
Chris Marcich, President and Managing Director of Motion Picture Association, wasn't going to say anything that might compromise the six major film studios in the MPA's stable represents:
“... We welcome the assurances regarding better enforcement at home and abroad and the measures to assist in rights clearance where there is market failure but we are concerned about a number of recommendations which will have an impact on the film industry including proposals related to exceptions on copyright and linking the Digital Copyright Exchange to enforcement.

“We look forward to engaging with the Government [does that mean the now-discouraged practise of, er, lobbying?] on these proposals to ensure that the vital safeguards provided by IP protection, which give the creative sector its value, are maintained and that any changes are carefully considered in the context of their potential impact on the market place.”
Another rights-based body, the Creative Coalition Campaign (CCC), speaks for some 30 leading organisations in the media, games and sport sectors, among others. Christine Payne (CCC Chair) said:
“We are delighted that Professor Hargreaves has listened to the creative sector and has rejected moves to change the fundamental principles behind UK copyright law which would have damaged investment in the UK ’s creative industries. The decision to omit the US style ‘fair use’ system is recognition that the UK already has a flexible copyright framework that facilitates fair dealing.  ...[W]e are keen to work with the Government to ensure that any changes are business led not regulatory fixes." [The two are not mutually exclusive: business-led is where it comes from; regulatory fix is what it is]
The warmest of the early responses came from the Pirate Party UK, which endorsed the Review as far as it went and mourned the fact it didn't go further:
" ...the Pirate Party agrees that copyright and patents should 'make not break markets' [Well, that's something we all agree on] and that the rights of innovators and artists should be balanced with those of the public to enjoy such work.  The Party agrees with the review when it states that "businesses too need change, in the form of more open, contestable and effective global markets in digital content". ...

The Party is disappointed, however, that the review has been held back from proposing any real reform to deal with the extensive problems that current copyright and patent frameworks pose, nor sought to redress the imbalance between the rights of creator and the needs of society.[It would be good to identify and explain those needs.  Like SMEs, society is something on whose behalf many people speak, but who lack any apparent mandate to do so]  While the Review has clearly made progress in addressing some of the symptoms of our broken copyright and patent system, the Pirate Party believes that we need a more radical rethinking of the role of copyright and patent laws in the digital age".


Andrew Robinson said...

Hats off to everyone who (like us pirates) managed to digest and respond to a 130 page report in about an hour, and double hats off to the 1709 Blog for being one of the very few media outlets to highlight that everyone has only bee able to make early responses.

Digging a bit further into the review, I think it's quite interesting that Hargreaves holds back from taking the next obvious step in quite a few places. For example he's critical of copyright duration being set by 'lobbynomics', and wants evidence based policy, but doesn't put two and two together and call for evidence based copyright duration. Similarly, he advocates legalising digitisation of content by libraries, but doesn't look into the implications. From one angle, that recommendation looks a lot like advocating a state funded Pirate Bay!

John R walker said...

About social 'needs'- the Stockholm convention (as incorporated in the Berne convention) is a 3 step test needed to justify restrictions of exclusive rights of control of usage.
Clear definable purpose and clear net community benefit is needed: education for public benefit and free speech are good examples. Any restrictions of exclusive rights must not have wider 'collateral' damage to the economic rights of right holders .

Therefore this convention favors minimalist approaches.

Copyright debates and the advocated changes tend to be far too maximalist , confused as to what is being talked about and unclear about who could be affected.

The rejected Google Books Settlement was exemplary of this problem -it was virtually impossible to say what might have not been affected by it: it was impossible to say what might not be an 'orphan', it was very hard to understand: it contained self reflexive definitions and it would have radically changed wide understandings of individual economic rights.

It was Too big a project.

For example- Surely wider availability of public library books published 30 or more years ago can be achieved by some minor 'furniture' movements;
Ease the public libraries burden of seeking consent (a bit) and limit affected 'orphans' rights (a bit).
Advance this '30 year event horizon' a year at a time and the problem could in time greatly ease.

John R walker said...

The report suggests extended collective licensing of 'orphans', by definition this equates to rent paid to people who can be found: non-orphans ,paid for the 'service' of representing 'orphans' . Obviously every collective management society wants it - but- What is the wide community point of that payment?

Non exercise of Copyright is a perfectly viable economic model for some creatives , for some it is the best model. Would they have to register (and pay?) for non service?

The report also calls for a sort of 'Torrens' title registry/title exchange.
The transaction costs of such a system could really get out of hand. Unlike land titles , the supply of copyright titles in a global world is huge, possibly infinite and unlike land titles, the intrinsic value of many of these titles would be less than the fixed costs of a Torrens title exchange style system .

Finally 'Artists Societies' are Academies, The Nordic model thus creates mandated/compulsory payments to Official Academies of the Arts.... Is the UK really keen on such an European, illiberal, idea of Cultural Authority?
Academies always end in what Eugene Delacroix called the " conscientious servant of the art of boredom".
It will cost you.