Entrenched bias, or a natural consequence of copyright?

Anti-consumer bias? It's
bound to exist -- but
is it benign or malignant?

" 'Entrenched Anti-Consumer Bias' Found In Copyright Laws; Creators Launch Petition For Better Contracts" is the title of this fascinating post by William New on Intellectual Property Watch, which he edits. The data on which this is based has been collaged by London-based Consumers International and is published in its fourth annual IP Watchlist report, which you can study in full here.

That consumers find anti-consumer bias in copyright laws is no more surprising than turkeys finding anti-turkey bias in Christmas celebrations -- but this is not a promising analogy. For, while turkeys are reared for the purpose of being slaughtered and consumed, consumers are at least in theory supposed to be subjected to copyright for their ultimate benefit. This benefit is conferred in general and negative terms, limiting consumers' freedom for their own good, for the sake of the encouragement of science and useful arts, as well as in specific and positive terms, preventing the enforcement of copyright where the otherwise-unauthorised user can avail himself of its defences and exceptions for such laudable purposes as do not conflict with the copyright owner' expectation to earn his humble crust. Some countries manage this better than others, at least on paper. Others have tough laws but little facility for their effective enforcement. Each of these criteria will affect consumer perceptions one way or the other.

This blogger is (i) a creator of copyright-protected material who expects to earn something from it, (ii) a conduit through which other people's copyright works pass, whether with express, implied, statutory or fervently hoped-for permission, and (iii) a consumer of other people's copyright protected works. Accordingly he reckons he can benefit from any position that the law takes with regard to consumer-friendliness but -- with his personal interest being split between so many competing interests -- he'd prefer a good balance in which the creative tensions of equilibrium of creator, conduit and consumer each hold the others in check.

For the record, the five most consumer-friendly jurisdictions for IP consumers were found to be Israel, Indonesia, India, New Zealand and the United States; the five least favourable to consumers were named as Jordan, Argentina, the United Kingdom, Thailand and Brazil. Commendably, the authors of the Consumer International report name their national respondents, so you can see for yourself who they are and from where their expertise derives.

Thanks go to Chris Torrero for spotting this.

Copyright Law, Getting in the Way of Getting Copyrighted Works

“The biggest barriers that consumers face in accessing copyright works
are those created by copyright law.”  And with that profound statement, Consumers International begins its exploration into how copyright and consumers interact, investigating the barriers consumers face when attempting to find information.

The book is Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010, and it presents the findings of two years of studies conducted by Consumers International.  These studies included surveys of consumers across a wide variety of countries, in-depth reviews of the effects of enacting new flexibilities in the copyright laws of Australia and Israel, and reports from six country groups involved in advocacy at the national level.

Consumer Survey

The global survey looked at potential barriers to access (to knowledge) in four different categories: Political, Economic, Social and Technological.  The book includes a full copy of the survey questions, highlights of notable qualitative answers and full charts of quantitative breakdowns.  Unfortunately, the charts are a bit hard to read sideways on a computer screen.  A surprising finding of the survey was that African consumers have the highest respect for copyright law.  A not-so-surprising finding was that consumers are confused about FOSS (free and open source software) and open licensing.

However, in combination with the other studies, Consumer International also found:

Part of the solution to the access barriers that consumers face is the wider use of open content, such as Open Educational Resources (OER) and free and open source software (FOSS). Our survey found that most consumers are aware of these alternatives, and ready to give them a try.

Based on this information, Consumers International has identified “the need for education of consumers on the unique features of FOSS and (though not covered in the phase one survey) other forms of free licensing such as Creative Commons.” 

Copyright Law Flexibilities

Australia’s 2006 amendments to its copyright act added flexibilities that made time-shifting and formatting-shifting legal.  Before the enactment of the amendments, arguments arose that the amendments would interfere with the markets for legal downloads and a threat to nearly every type of copyright protected work.  Results of the research conducted revealed that the content industry’s nightmares did not come true. 

[T]here was evidence to suggest that the amendments may have increased compliance with the law – not only by legalising the common and harmless consumer practices in question, but by improving some consumers’ respect for the fairness of copyright law in general.

When looking at Australian’s perspectives on whether and when it is ok to download copyrighted material, the book again presents a mix of quantitative data and qualitative information. Some of the justifications of those who feel it is ok to download to their heart’s content are rather amusing.

“Because when I see what happens, when people like Britney Spears
get paid what they do and act like they do. This means to me the
entertainment industry can kiss my arse!!!!!!!!”

Israel introduced fair use into its British-based copyright act in 2007.  To study the effects of the introduction of this provision, researchers compared case law before and after 2007.  The concept of fair use existed in Israeli copyright before 2007, but it was not codified.  Results of the analysis was slightly disappointing but hopeful.  Finding that fair use claims rarely succeeded and that courts were applying the doctrine in disparate ways, the researchers also expressed belief that this will change with the progression of more cases.

In conclusion, we find the law in Israel, while evolving to meet the
new digital creativity landscape, still lacks the balance which will reflect the social understanding of what should constitute a fair use and how copyright can foster creativity and innovation.

Country Group Reports

The book includes reports on national advocacy from Brazil, Cameroon, India, Nigeria, South Africa and Zambia.  Each of these reports discusses activities done in the country to promote access to knowledge and the strengths and weaknesses of these activities.

 

Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010 is a 336 page book, but it will not cause you back strain.  The entire book is available in pdf, released under a Creative Commons BY-SA license.

Are blissed out online shoppers statistically confused?

New research from Consumer Focus, the UK’s consumer watchdog, says that nine out of ten consumers who are aware of online music services, have only heard of two established brands – iTunes and Amazon and Consumer Focus says that the survey of nearly 2,000 people shows that the music industry is failing to promote the many legal alternatives – four in ten people had never heard of a single online service. Unsurprisingly the music industry said it was a “fallacy” to imply that awareness of legal music services is low and Geoff Taylor, the chief executive of the BPI, the record industry trade body, said: “It’s just not credible to suggest that people who are downloading illegally haven’t heard of iTunes, Amazon or other legal music services” adding “our much larger, more recent and targeted online survey shows that awareness of legal music services among internet users is almost universal”. I have to say, it does somewhat depend on who Consumer Focus surveyed – my great aunt, who is reasonably computer savvy, knows what a download is (in theory) but would not be able to name a single online service as she only uses CDs. It is also fair to say that with their market dominance both Apple’s iTunes and Amazon would be expected to poll significantly and it would be interesting to see exactly what was asked and of whom. Without that information the statistic is as meaningless as the record industry’s own use of the statistic that “95% of all downloads are illegal” (IFPI), somehow trying to equate this to a 95% loss of actual sales of recorded music.

The survey has added spice to the ongoing debate about the relevance of a ‘three strikes’ law which would be used to disconnect persistent illegal download offenders as envisaged in the Digital Economy Bill, and of course the new High Court injunctive powers set out in Lord Tim Clement Jones’ recent House of Lords amendment to the Bill. I the red corner the BPI’s Geoff Taylor said “The measures in the Digital Economy Bill are precisely what is needed to encourage illegal downloaders to move across to those legal services” whilst in the blue corner Jill Johnstone, International Director, Consumer Focus, said: “The music industry is shooting itself in the foot by not promoting legal online music services. If file sharing is causing the damage the music industry claims, why aren’t they putting more effort in to promoting the legal alternatives?” adding “Before we go down the enforcement road it is only fair to ask the music industry to do more to make people aware of the legal options". The BPI's Harris Interactive research of 3,442 respondents in November 2009showed 96% had awareness of iTunes/Amazon/7 Digital/HMV (etc); that 87% had awareness of subscription services like Napster, eMusic (etc); that 87% had awareness of music direct from artists sites; that 86% had awareness of being able to obtain music via mobile handsets; and on streaming services, 55% had awareness of Spotify, 52% had awareness of last.fm and 31% had awareness of We7.



http://www.telegraph.co.uk/technology/news/7392178/Music-industry-failing-to-promote-legal-alternatives-to-piracy.html

http://www.tmcnet.com/usubmit/-consumer-focus-more-must-be-done-make-consumers-/2010/03/07/4660749.htm

And for more research on comsumers' views on 'outdated' copyright laws in the UK see http://www.consumerfocus.org.uk/news/outdated-copyright-law-confuses-consumers

Research suggests that music fans still prefer CDs to Downloads

Another set of figures from the recent research by The Leading Question (see my earlier posting below) show that perhaps the CD isn't quite as doomed as the music industry thought - with two thirds of music lovers saying that they still prefer CDs over any other media - including digital downloads - and 66% of 14-18 year olds saying that they prefer the CD format.

The Leading Question spoke to over 1000 music fans as part of their annual Speakerbox survey into the state of music consumption in the UK. Despite the growth of digital download sales, the research showed that overall 73% of music fans are still happy buying CDs rather than downloading and that fans still value a physical CD much more than digital downloads. With a bedrock of sales from online stores and supermarkets (these channels represented 46% of all UK CD sales in 2008), even the demise of the specialist high street music store may not spell the end of the CD just yet.

For less tech savvy music fans their first experience of digital music often starts when they put a CD in their computer - and 59% of all music fans still listen to CDs every day. When it comes to the dark side, fans say that CD burning is top of all sharing activities at 23% above bluetoothing (18%), filesharing single tracks (17%) and filesharing albums (13%). The Report seems to support music streaming services saying that fans who stream music (ie those who listen to streamed music on their computers every day) also spend more on CDs (£12.17 a month) and downloads (£7.02 per month compared with a survey average of £3.81) than most music fans. Paul Brindley from Music Ally commented

“While we fully expect that digital will eventually replace most physical consumption, this is not a clear cut replacement cycle like the change from vinyl to CD. It’s particularly encouraging that those who are listening to streamed music on their computers are actually buying more music on both CDs and downloads than the average music fan. This suggests that digital can and is being used as a way of sampling new music which users may then go on to purchase”.

'Worst in the world'

Via Hector L MacQueen (Professor of Private Law and Co-Director, AHRC Research Centre Intellectual Property and Technology Law, Edinburgh) comes news of a note in Scottish Legal News on how UK copyright law has been rated the worst in the world. The extract, in relevant part, states:

"The UK's copyright legislation has been rated 'the worst by far' in a survey of 16 countries and as a result millions of unsuspecting consumers are being needlessly criminalised by out-of-date intellectual property laws. 

The Consumers International survey looked at how well each country's copyright law balances the interests of rights holders with those of consumers.

The UK first developed copyright law as long ago as the 16th century [this is arguable ...], but ... as singularly failed to keep up, beating the emerging economies of both Thailand and Argentina to last place.

It is currently a copyright violation to rip a CD that you own on to your PC or iPod ? even though over half of British consumers admit to doing it and think this type of copying is perfectly legal.

Consumer Focus is calling for the Government to introduce of a broad 'fair use' exception to UK copyright law which would be able to adapt to new technical environments over time - an approach already adopted by the US, who came fourth in the survey [broad exceptions: how do these stand vis-a-vis the Berne three-step test?].

...

A Fair Use exception to the law would protect copyright holders' exclusive rights, while providing exceptions to copying activities that cause no, or minimal economic harm to the rights holders.

This would cover instances where consumers copy to back up files, view at a more convenient time, play on a different device, or simply to share with family and friends".

This piece is a bit disappointing: are there not far better grounds upon which to condemn the UK copyright legislation?  Uncontrolled and unmanageable amendments and renumbering of provisions, bafflingly obscure and impenetrable drafting, the regular need to supplement the text with statutory instruments, the extraordinary arrangement of definitions and definition sections ...