Harkening to Hargreaves: UK Copyright Consultation

The road to copyright reform is a long one, full of false starts and diversions. Those with good memories may recall the Gowers Review from 2006, which made lots of sensible suggestions, all of which were promptly ignored by the UK government. So following the good work of the Hargreaves Report, the very real risk was that it, too, would be simply filed and forgotten.

On Open Enterprise blog.

*Don't* © the Future

Here's yet another UK consultation on intellectual monopolies:

David Lammy, Minister for Higher Education and Intellectual Property, has launched a wide-ranging consultation by the Intellectual Property Office on the future direction of copyright. The aim is to ensure that the copyright system properly supports creativity, promotes investment and jobs while also inspiring the confidence of businesses and of users (as being fair and reasonable). In building a long term vision and supporting our creative industries, we need to think beyond our national borders and consider the global future of copyright.

Given that the UK Government is ignoring its own Gowers Review in favour of giving in to emotional blackmail by ageing popstars, there seems little point in responding - but I probably will anyway....

Good for Gowers

When the Gowers Review on intellectual monopolies came out almost exactly two years ago, it was remarkable for its eminently sensible approach, which was rigorously based on hard-headed economics. One of its key recommendations was the following....

On Open Enterprise blog.

Going Beyond Gowers

One of the great things about the Gowers Review is that it used a solid economic analysis to show that extending the term of copyright in music recordings made no sense. The other great thing about it is that others can carry out similar objective analyses to arrive at the same result:

Today, the leading European centres for intellectual property research have released a joint letter to EU Commission President Jose Manuel Barroso, enclosing an impact assessment detailing the far reaching and negative effects of the proposal to extend the term of copyright in sound recordings.

“This Copyright Extension Directive, proposed by Commissioner Mccreevy, is likely to damage seriously the reputation of the Commission. It is a spectacular kowtow to one single special interest group: the multinational recording industry (Universal, Sony/BMG, Warner and EMI) hiding behind the rhetoric of “aging performing artists”.

Taxing Intellectual Monopolies

Here's an interesting thought:

He also reported research that demonstrates patent renewal fees can be used to improve the innovation incentives generated by patent rights. Professor Schankerman set out an analysis of renewal fees as a tax on the property right conferred by a patent, and proposed that the effective tax rate be adjusted to provide socially optimal incentives. His analysis suggests that existing renewal fees impose a highly regressive tax on patents, and suggested that renewal fees should be very substantially increased, especially in later years, to make the effective taxation rate progressive.

Imposing high renewal fees would be a disincentive to file frivolous patents. It would also usefully shift discussion of intellectual monopolies to a more objective, economics-based analyses. That's good, because the evidence that such monopolies are not economically justifiable is overwhelming (as the Gowers Review noted in the context of increasing the term of copyright for music performance.)

UK Copyright Extension Alert

Even though the Gowers Review comprehensively trashed the idea of extending copyright for sound recordings, zombie-like it's back as a Private Member's Bill. The indispensable Open Rights Group has more and tells you what do about it. Hint: it involves writing to your MP:

What can you say to persuade your MP to show up to the Commons on a Friday? Perhaps you might point out that all the economic evidence points against term extension. Or that every other UK citizen is expected to contribute to their pension out of income earned in their working life. Or that retrospectively extending copyright term won’t encourage Elvis Presley to record any more new tracks. Or that if governments continue to draft intellectual property legislation on behalf of special interest groups, it will only further erode the respect that ordinary citizens have for the letter of the law.

Getting Going with Gowers

The Gower Review was an important document for the UK. It offered a thoughtful and rigorous analysis of the current copyright situation there, and looked at some of the problems the new digital world has with current copyright legislation. It also made a number of pretty sensible recommendations - even if it chickened out of calling for a reduction in some copyright terms, which Gowers himself admits that pure logic calls for.

Now we have the question of how that Review will be implemented. To move things on, here's a consultation document from the UK Government asking for people's views.

The main issues it considers are how to:

* enable schools and universities to make the most of digital technologies and facilitate distance learning;

* allow libraries and archives to use technology to preserve valuable material before it deteriorates or the format it is stored on becomes obsolete;

* introduce a format shifting exception to allow consumers to copy legitimately purchased content to another format, for example CD to MP3, in a manner that does not damage the interests of copyright owners; and

* provide a new exception for parody.

Specifically, it asks how those exceptions should be implemented. And I have to say, it does that with real intelligence. The questions it poses, soliciting input, are spot-on in terms of exploring the ramifications of copyright changes. I thoroughly recommend a slow perusal of the main document, since it provides a wonderful introduction to the thorny issues that copyright in the digital age must deal with.

None is thornier than DRM. Again and again in this document, questions arise about how people can be given the ability to derive the full benefit of copyright material when DRM gets in the way - and to what extent they should be allowed to circumvent it.

Of course, my answer is simple: get rid of the whole damn lot. Even a year or two that might have seemed radical or utopian, but with nearly all the main record labels embracing that strategy - and the film companies about to begin their own slow slouch towards Bethlehem - I think it will soon be seen as the best and most sensible thing to do.

Reneging on Gowers

When the Gowers review of copyright in the UK came out I was ambivalent: there was some good things, but also areas that were potentially problematic, notably in terms of one-side strengthening copyright enforcement. One year on, it looks like my fears were justified:

If enforcement and flexibility are two sides of the same coin, then one year on it looks like the toss has definitely gone to enforcement. This means that Government is in effect making the situation worse: concentrating on strengthening enforcement measures while failing to address the inherent inflexibility of copyright law that Gowers identified as a key factor in the general public’s disrespect for the law.

Given what is happening in France, with its idiotic "three strikes and you're out" approach - this isn't a game, you know - and the fact that the UK industry is beginning to salivate at the prospect of bringing in something similar here, this is not good.

The End of the Copyright Ratchet/Racket?

Will this response from the UK Department for Culture, Media and Sport go down in history as the great turning point for copyright, when the constant extension ratchet was halted and eventually reversed?

Maybe I'm an incurably optimist, but I have to say I was pretty impressed by the generally sane tone of this document after years of industry-driven exaggeration about "piracy" and such-like. The best demonstration of this comes right at the end, where the earlier proposal by the House of Commons Culture Committee to extend the term of copyright in sound recordings is discussed. Here's what the report has to say:

The Government appreciates the work of the Committee and the deliberation it has given to this subject. As the Committee noted,the independent Gowers Review also considered this issue in detail and recommended that the European Commission retain a term of protection for sound recordings and performers of 50 years. The Review undertook a detailed analysis of all the arguments put forward,including the moral arguments regarding the treatment of performers. It concluded that an extension would not benefit the majority of performers,most of whom have contractual relationships requiring their royalties be paid back to the record label. It also concluded that an extension would have a negative impact on the balance of trade and that it would not increase incentives to create new works.Furthermore,it considered not just the impact on the music industry but on the economy as a whole,and concluded that an extension would lead to increased costs to industry,such as those who use music – whether to provide ambience in a shop or restaurant or for TV or radio broadcasting – and to consumers who would have to pay royalties for longer. In reaching such conclusions,the Review took account of the question of parity with other countries such as the US,and concluded that,although royalties were payable for longer there,the total amount was likely to be similar – or possibly less – as there were fewer revenue streams available under the US system.

This is doubly important, because it will have important knock-on effects beyond the UK. As Becky Hogge of the Open Rights Groups rightly points out:

This is significant, since the UK government is likely to have a disproportionately loud voice on this issue both because it is home to the most lucrative recording industry in Europe and because it has taken the time to review this issue in detail.

So we have the prospect of Europe following the UK's lead in halting the constant copyright extension. This, in its turn, will help to put a brake on such copyright extensions around the world, since there will no longer be the argument that "eveyone else is doing it, we must follow suit". Maybe it's too much to hope that in due course copyright terms will start to be reduced - but then, as I said, I'm an incurable optimist.

Gowers Now Out

The Gowers Review is now out. I've not had time to read it all yet, but there's a good summary in the Treasury's press release:

Whilst the Review concludes that the UK has a fundamentally strong IP system, it sets out important targeted reforms. The reforms aim to:

* strengthen enforcement of IP rights to protect the UK's creative industries from piracy and counterfeiting;
* provide additional support for British businesses using IP in the UK and abroad; and
* strike the right balance to encourage firms and individuals to innovate and invest in new ideas while ensuring that markets remain competitive and that future innovation is not impeded.

There's some good news in this:

To ensure the correct balance in IP rights the review recommends:

* ensuring the IP system only proscribes genuinely illegitimate activity. The Review recommends introducing a strictly limited 'private copying' exception to enable consumers to format-shift content they purchase for personal use. For example to legally transfer music from CD to their MP3 player;
* enabling access to content for libraries and education establishments - to ensure that the UK's cultural heritage can be adequately stored for preservation and accessed for learning. The Review recommends clarifying exceptions to copyright to make them fit for the digital age; and
* recommending that the European Commission does not change the status quo and retains the 50 year term of copyright protection for sound recordings and related performers' rights.

But I worry about what the following will mean in practice:

With the music industry losing as much as 20 per cent of annual turnover to piracy and counterfeiting, the Review recommends strengthening enforcement of IP rights through:

* new powers and duties for Trading Standards to take action against infringement of copyright law;
* IP crime recognised as an area for police action in the National Community Safety Plan;
* tougher penalties for online copyright infringement - with a maximum 10 years imprisonment;
* lowering the costs of litigation - by using mediation and consulting on the use of fast-track litigation. The Review acknowledges that prohibitive legal costs affect the ability of any to defend and challenge IP; and
* consulting on the use of civil damages as a deterrent for IP infringement.

If this means going after large-scale counterfeiters, well and good. But if we're talking about "tougher penalties" and "police action" for all kinds creative uses - mashups etc. - then there are going to be big problems.

Parenthetically, here's a characteristically wise and well-written piece by Larry Lessig in today's FT about one aspect of the report. He's worried that the Gowers recommendation on not changing the status quo for sound recordings may be ignored by the UK Government to keep some of its industry chums happy:

There is not much doubt about what it will say on this proposal. There is much more doubt about whether the government will follow the report's sensible advice.

Lessig then makes his usual sensible pitch about orphan works, including with the following splendid peroration:

There are some who believe that copyright terms should be perpetual. Britain did the world a great service when it resolved that debate almost 300 years ago, by establishing one of the earliest copyright regimes to limit copyright to a fixed term. It could now teach the world a second important lesson: any gift of term extension should only go to those who ask.

Real Life: The Review

Talking of RL and SL, this extremely witty piece is deeper than you might think:

Volumes have already been written about real life, the most accessible and most widely accepted massively multiplayer online role-playing game to date. Featuring believable characters, plenty of lasting appeal, and a lot of challenge and variety, real life is absolutely recommendable to those who've grown weary of all the cookie-cutter games that have tried to emulate its popularity--or to just about anyone, really.

(Via Web 2.0 Blog Network.)

British Academy Gets It On Copyright

The British Academy has traditionally been a rather staid institution, but this press release about a forthcoming report shows that they get all the main points about copyrights and its wrongs:

A report from the British Academy, to be launched on 18 September, expresses fears that the copyright system may in important respects be impeding, rather than stimulating, the production of new ideas and new scholarship in the humanities and social sciences.

...

The situation is aggravated by the increasingly aggressive defence of copyright by commercial rights holders, and the growing role – most of all in music – of media businesses with no interest in or understanding of the needs of scholarship. It is also aggravated by the unsatisfactory EU Database Directive, which is at once vague and wide-ranging, and by the development of digital rights management systems, which may enable publishers to use technology to circumvent the exceptions to copyright which are contained in current legislation.

Let's hope the Gowers Review of Intellectual Property takes note and gets it too.

UK Copyright Laws "Absurd"

Nope, not what I say (well, I do actually), but what the terribly grown-up and sensible National Consumer Council says. But wait, there's more:

Whether for films, literary or musical works, sound recordings or broadcasts, the length of all copyright terms should be reduced to fit more closely the time period over which most financial returns are normally made. The current campaign by the music industry to extend copyright terms for sound recordings beyond 50 years has no justification. Evidence shows that music companies generally make returns on material in a matter of years not decades. Current terms already provide excessive protection of intellectual property rights at a cost to consumers.

The full NCC submission to the Gowers Review can be found here; it's clearly written and well worth a look.

What's interesting is the pressure that is now building up on the Gowers Review to do something sensible about UK copyright. First the British music industry, and now the consumer council: who will be next? (Via paidContent.org.)

British Music Industry See the Light - A Bit

I've written often enough about the rapacious, egotistical, and totally unreasonable demands of the recorded music industry when it comes to copyright, so it behoves me to record when part of it seems to be doing the right thing - at least, to a certain extent.

Apparently, the guardians of the British music industry, the BPI, have actually recommended to the on-going Gowers Review of "intellectual property" that you and I be allowed to copy our own CDs and records for personal use.

Now, you might have thought you could do that anyway, but in the UK the current legislation doesn't really allow it (but that's not surprising, since it was probably drafted when music technology meant men in tights playing lutes). So, two cheers for the BPI.

Well, maybe one: its Web site is still a pretty unedifying spectacle, full of the usual veiled threats to parents over their children's use of P2P software, and plenty of fanciful avast-there-me-hearties pirate stuff. But credit where credit's due: the Gowers submission is a step in the right direction. (Via TechDirt.)