Mark's Musings

A miscellany of thoughts and opinions from an unimportant small town politician and bit-part web developer

A useful step forward for copyright


I’ve finally had the chance to read the Hargreaves review into copyright and intellectual property in full, and I have to say that I’m fairly impressed with it. Obviously, not everyone is going to be happy with it, either because it doesn’t go far enough towards liberalising copyright or, as the BS Alliance would have us believe, it doesn’t go far enough to giving copyright holders more rights. But, on the whole, it looks pretty good.

I’d advise anyone who’s interested in the subject of copyright and intellectual property to read it themselves rather than relying on excerpts and reports. It’s not excessively long and, for such a potentially dry subject, it’s well-written and sprinkled with touches of humour. But, just to give a flavour of the report, here are some of the points that I found particularly interesting.

The first is right at the start, in the forward, where Professor Hargreaves writes

Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.

and in the executive summary, he expands a bit on that by saying

IP law must adapt to change.  Digital communications technology involves routine copying of text, images and data, meaning that copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, internet based businesses.

The first, and probably the most widely reported, of the recommendations made by the report is that format shifting should be legalised. This is such an obvious step (and one already allowed for under EU law) that it’s hard to see any reason why the government should ignore this. Here’s what Prof Hargreaves had to say:

The copyright regime cannot be considered fit for the digital age when millions of citizens are in daily breach of copyright, simply for shifting a piece of music or video from one device to another

and, in more detail

Copying should be lawful where it is for private purposes, or does not damage the underlying aims of copyright…

The UK has chosen not to exercise all of its rights under EU law to permit individuals to shift the format of a piece of music or video for personal use and to make use of copyright material in parody.  Nor does the UK allow its great libraries to archive all digital copyright material, with the result that much of it is rotting away.  Taking advantage of these EU sanctioned exceptions will bring important cultural as well as economic benefits to the UK.  Together, they will help to make copyright law better understood and more acceptable to the public.  In addition, there should be a change in rules to enable scientific and other researchers to use modern text and data mining techniques, which copyright prohibits.

The final sentence in that paragraph is important, too. At the moment, it’s potentially a breach of copyright to use published material in order to extract data even if that doesn’t involve republishing the material itself. For example, if a researcher wanted to do a survey on the geographic distribution of surnames by looking at entries in the phone book, or the number of times that different newspapers use the words “injunction” and “footballer” on the same page, then they could be prohibited from doing so by the owners of the material as it would be impossible to do that research without copying it – even if he researcher has no plans to make the material available to anyone else. At the moment, for example, the Churnalism website is, technically, breaching copyright despite performing a useful public service. Permitting copying for the purposes of research, rather than republication, will eliminate this anomaly.

But what about the copyright holders? What about the losses to them, and to the economy as a whole, caused by unauthorised copying? The problem, as Prof Hargreaves points out, is that we have very little reliable evidence as to the scale of the problem, and what useful evidence we do have tends to suggest that it isn’t maybe such an issue as the rightsholders would have us believe:

No one doubts that a great deal of copyright piracy is taking place, but reliable data about scale and trends is surprisingly scarce. Estimates of the scale of illegal digital downloads in the UK ranges between 13 per cent and 65 per cent in two studies published last year. A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria. Meanwhile sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested.

The report’s response to the problem of widespread copyright infringement is to suggest practical measures to make it less necessary rather than favouring yet more heavy-handed enforcement:

Such research as exists indicates that we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement. Instead, Government should respond in four ways: by modernising copyright law; through education; through enforcement and by doing all it can to encourage open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers.

It would appear, too, that Prof Hargreaves isn’t particularly a fan of either the Digital Economy Act or some of the processes which brought it into being. Two short statements, although fairly blandly worded, contain some pretty powerful criticism of previous governmental attitudes to IP legislation:

The strong online enforcement measures made possible by the Digital Economy Act should be carefully monitored so that the approach can be adjusted in the light of evidence.

In the 1970s, the Banks Review [of copyright] deplored the lack of evidence to support policy judgments, as did the Gowers Review five years ago. Of the 54 recommendations advanced by Gowers, only 25 have been implemented. On copyright issues, lobbying on behalf of rights owners has been more persuasive to Ministers than economic impact assessments.

In the case of IP policy and specifically copyright policy … there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes.

A prominent and persistent example of the lobbying problem concerns the duration of copyright protection, which has been periodically extended in recent decades. In spite of clear evidence that this cannot be justified in terms of the core IP argument that copyright exists to provide economic incentives to creators to produce new works. As has been noted by a number of commentators, no one has yet discovered a mechanism for incentivising the deceased.

This theme, that IP law needs to be based on evidence rather than lobbying, persists throughout the report. In some cases, this favours the rightsholders, particularly in the realm of design rights where the report points out that current IP law provides considerably weaker protection for creators of 3-dimensional objects than it does for authors, composers and artists – the reality of affordable 3D printing makes this an issue which will need to be addressed sooner or later, and Prof Hargreaves doesn’t shy away from recommending stronger protection where appropriate. But he also makes a point of explicitly repudiating some of the more common false claims made by the rights industries:

  • not all illegal downloads are lost sales – the user may not have paid a higher price for a legal copy absent cheap or free illegal versions;
  • money not spent on legal copies is not lost to the economy – it may be spent on other purchases. This is of no comfort to the sector suffering losses, but the effects across the economy will not necessarily be problematic;
  • even within the industry affected, purchases prompted by experience from an illegal copy (for example, concert tickets or other merchandise) can offset losses;
  • in business software, piracy has promoted the lock-in effect for the legal provider’s software and helped to make that software the global standard.

I could go on cherrypicking quotes from the report, but if I do then I’ll end up quoting almost all of it here. I’ll finish with one paragraph from the report’s recommendations which I think is probably the single most important in the entire document:

Government should firmly resist over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.

The good news, I think, is that at last we do have a government which is committed to taking these suggestions seriously. One of the advantages of a new administration is that it hasn’t had time to develop the corrosive relationships with celebrities and professional lobbyists which characterised the previous government – a classic example being Lord Mandelson’s boating trips with music mogul David Geffen being followed in short order by proposals to disconnect filesharers from the Internet. We haven’t had any reports yet of Bono putting in an appearance at No. 10, which from a copyright perspective is definitely a good thing. But, even so, we need to make to clear to our legislators that we want to see the Hargreaves report recommendations implemented. Please take a moment to contact your MP about it and make sure that the message gets across.