Any Hint Of Evidence Based Copyright In The UK Seen As Nefarous Plot By Parliamentary Copyright Maximalists

from the can't-have-that dept

The laws governing intellectual monopolies in the UK are in a state of flux at the moment. After the previous government in its dying hours rammed through the shoddy piece of work known as the Digital Economy Act, the present coalition government took a more rational approach by commissioning the Hargreaves Review into the impact of digital technologies on this area. One of its key proposals was that policy should be based on evidence, not "lobbynomics"; the fact that this even needs to be mentioned says much about the way laws have been framed until now.

As a result, the UK's Intellectual Property Office (IPO) has been trying to gather evidence in order to help politicians draw up new policies that correspond to the data, not just dogma. Not surprisingly, perhaps, those that have done well under the previous evidence-free approach have been mounting a rearguard action against the changes.

One of the people unhappy about both the Hargreaves Review and the IPO's response is the UK MP Peter Wishart, who made the following comments about them in Parliament earlier this year:

Ian Hargreaves was notionally in charge of that process [of looking at digital copyright], but having observed evidence being taken, and the report and recommendations be delivered, I suggest that the hand of the Intellectual Property Office was all over it. I believe that Ian Hargreaves was perhaps a figurehead, because the IPO seems to have driven the agenda. We will discuss some of the exceptions to copyright that the IPO proposed as part of its consultation, but it has been steering the process all the way through.

What is that predicated on? It is predicated on the belief that economic evidence should be at the heart of every initiative and everything that we do concerning intellectual property law. Ian Hargreaves has been perhaps a little cavalier when it comes to intellectual property, and we could say that he has made heroic assumptions about the value of some of the proposed recommendations and exceptions.

Wishart is also the Vice Chair of something called the All Party Parliamentary Intellectual Property Group. Here's how it describes itself:

The Group was launched in 2003 as a response to this and to create a resource for parliamentarians of both Houses interested in learning more about intellectual property (IP), its role in stimulating creativity and economic growth, how new services are developing to serve consumer needs, and the harm that can be caused when IP is not properly respected and protected.

As that makes clear, the All Party Parliamentary Intellectual Property Group is not an official UK government body, but more of a club for like-minded individuals. Earlier this year, the group announced its unofficial inquiry into how the UK government was handling intellectual monopolies:

The Group will seek to unpick the tangled web of cross-departmental responsibilities in this area by considering how policy has been developed, the effectiveness of the current approach, and whether the machinery of government can be improved for better policy formulation.

It's hard not to see this as an attack on the IPO and its new approach -- one of the six questions posed was "How effective is the Intellectual Property Office and what should its priorities be? (pdf)". That suspicion is confirmed by the recent publication of the results (pdf).

The group's philosophy is made plain early on in the document:

The fact that IP attracts so much interest reflects its increasing importance in our economy. Clearly IP on its own does not generate economic activity, but as a property right, it enables innovators, creators, manufacturers and designers to protect their innovation and monetise their work.

Except that copyright and patents aren't property rights, but "a government grant of a costly and dangerous private monopoly over ideas." Indeed, the increasing recognition that it makes no sense to treat copyright and patents as a property right really seems to stick in the craw of the parliamentary group. Here's what it says on the subject:

We were also concerned that officials from the IPO find it difficult to describe intellectual property as a property right. It was described as a framework by one official which immediately undermines it. If the IPO sees IP as a framework then it suggests they see it as something that can be shaped and altered at will. We question whether such a laissez fair[e] attitude would be taken to other property rights and if they were, whether senior Officials and Ministers would allow such an attitude to pervade.

Note that the IPO is blamed here for simply conveying a truth that is unpalatable to the group. Elsewhere, the report tries really hard to find other reasons to blame the IPO; unfortunately, the facts keep getting in the way:

The evidence we received and heard was varied in this respect. Certainly the IPO's role as a registration body for patents was seen as very positive as was its role in educating both consumers and business about IP.

Whoops, sounds like the IPO is doing a good job for patents, so what about for copyright?

People's criticisms of the IPO's policy making process appear to have been ignited by their most recent recommendations in relation to copyright. There were many groups who supported these recommendations and the process by which they came about, however a very large number did not.

Oh dear: "many groups" supported the IPO again; but luckily, others did not. That is hardly surprising, since some of the ideas being considered by the IPO would try to put a modicum of balance back in UK laws governing copyright. That's never really happened before, thanks to the ratchet effect that has ensured the public domain has been constantly impoverished when the law is changed.

The idea that stakeholders might have to give something back to the public in the form of minimal exceptions may be unheard of, but it's hardly unreasonable. Arguably, we need to run the ratchet back much further in order to obtain anything like a fair balance between the rights of stakeholders, and the rights of the public.

But the latter are rarely considered. Indeed, it's significant that the world "public" isn't mentioned once in the Parliamentary group's new report. The nearest thing we get is "consumers", notably in the following paragraph, which betrays a typical lack of understanding about how formerly passive consumers are morphing into active co-creators:

When the officials from the IPO gave evidence, they were very clear that they saw their role as providing balance -- they see this balance as ensuring consumers can have access to content. We believe the IPO should look more carefully at how the IP framework stimulates the creation and development of new content, services, designs and other IP rich innovation as much as how existing content can be accessed. Only if they do this, will consumers of the future continue to have access to the content, products and services they enjoy.

That paragraph sums up why the All Party Parliamentary Intellectual Property Group so dislikes the IPO: the latter is trying to provide balance, and that is really the last thing that the copyright maximalists and their allies want to see here.

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Filed Under: all party parliamentary intellectual property group, balance, copyright, hargreaves, ipo, parliament, uk

Two Contradictory Paths In The UK When It Comes To Copyright Issues

from the which-one-is-more-reasonable dept

It's been a bit hard to understand what's been going on in the UK concerning copyright reform when we keep hearing two very contradictory messages. On one side, there's the ridiculous Digital Economy Act, which was proposed by the unelected, debated by the ignorant and voted on by the absent in order to put in place much stricter copyright laws, including putting much of the burden on online service providers. That process is continuing to expand with plans to make the censorship part of the bill even clearer. Those behind the law, when pressed, admitted that they had absolutely no evidence to support the claimed need for this law.

And yet, while all of this was happening, there was also the Hargreaves Report, which was a very reasonable look at copyright issues, which listed out a bunch of pretty tame recommendations (so tame that creating a "fair use" policy was seen as too controversial). Of course, it also was pretty clear that the UK should stop its faith-based copyright regulating, and no more changes should be made to the laws without solid economic evidence.

So guess which process is getting attacked? You guessed it. The latter process, as Member of Parliament (MP) Peter Wishart apparently went on the attack against the Hargreaves report and the Intellectual Property Office (IPO) that commissioned it. Peter Bradwell, over at the Open Rights Group, hits back by noting that it's pretty ridiculous to question the IPO while ignoring everything going on with the Digital Economy Act, which came out of a different part of the goverment: the Department for Culture, Media and Sport (DCMS). Bradwell's article breaks down the differences here:

So to caricature the two departments: one is asking for evidence and consulting widely and openly. One has spent the past few years consulting narrowly, opaquely, and with no evidence or analysis to speak of.

The IPO come under fire in Peter Wishart's speech for being sloppy with evidence and ignoring the creative industries. DCMS' proposals are to be 'got on with'. He calls the IPO 'a bureaucratic front to devalue the people whom it is supposed to support' which the Government must 'get to grips with'. 

That is slightly strange. The issue of policy making for copyright involves managing a complex mix of evidence, principle and opinion. Disagreement, and the management and channeling of that disagreement in the formulation of policy, are two separate things. Whatever position one takes on the substance of this debate about IP, there is a right way and a wrong way to make public policy.  It has to be democratically legitimate, open, transparent and involve proper debate. Over the past 12 months, the IPO has beaten DCMS hands down on that metric. 

Yeah, but being open, transparent and relying on actual evidence isn't just hard work -- the big content gatekeepers don't like it when that happens. And we have to support them at all costs, apparently...

Filed Under: blocking, censorship, copyright, dcms, hargreaves, ipo, reform

UK Government Announces Copyright Plans; Surprisingly Good, With A Few Problems

from the and-expect-a-huge-legal-fight dept

As was expected, the current UK government has made it clear that it would like to follow the (relatively mild) suggestions of the Hargreaves report. Glyn Moody does an excellent job breaking down the details of the government's announcement, noting that it's mostly good, though there are a few areas of concern. One nice thing is that the government insists that it will require actual evidence that stronger IP laws actually benefit the country, rather than just taking it on faith. Hopefully they follow through on that.

There are a few interesting specific notes in the report, including saying that it will not support "site blocking," as a way to deal with infringement. I'm not quite sure that fits with the recent Newzbin2 ruling in the UK that ordered BT to block the site, but it certainly seems notable. Unfortunately, they are implementing a £20 fee for anyone who wishes to appeal a "strike" under the Digital Economy Act. This is problematic, as it again seems to assume guilt before innocence, and makes you pay to get a review of your own innocence.

The government's plan also appears to support a broadcast treaty, which is a dangerous plan to give intellectual property-like rights to broadcasters over works they broadcast even if they're in the public domain. This recommendation seems wholly out of place. In the end, Moody sums it up, saying that while there are some bad things, there's a lot to be encouraged by:

However, to summarise an over-long post, the UK Government's response to the Hargreaves Report is much better than I expected. It has largely accepted Hargreaves's main points, including the crucial one about the need for evidence before policy is formulated, or action is taken. Of course, there remain problems - the £20 fee for appeals is hugely discriminatory - and the UK Government did not address the underlying problems with copyright and patents, but that is not surprising - neither did Hargreaves and his team.

By setting himself a more modest goal of pointing out the most flagrant absurdities of the system in our digital world, and offering plausible fixes, Hargreaves seems to have managed to convince the UK Government of the wisdom of accepting more or less all of them. That's no mean achievement, and both parties deserve kudos for arriving at this starting point, even if the real legislative journey has only just begun.

For the most part, I agree. I am curious how this will play out in actual policy however. The entertainment industry is an incredibly powerful lobby, and history has shown that they have had tremendous success, decade after decade, in convincing politicians of their evidence-free claims on certain things. Often it just takes trotting out some celebrity to complain. At other times they use a variety of tactics that get politicians to make proposals that clearly favor the specific interests of a few legacy players, pretending they're for actual content creators instead. I have no doubt that we will see quite a battle in the UK over this pretty quickly, and while I'm encouraged by much of what's been said, I have little faith that those implementing the policy will be able to successfully do so without being pressured by the industry into changing those plans.

Filed Under: copyright, hargreaves, uk

UK Copyright Review Hardly Surprising Or Radical; But Will Face Opposition

from the it's-a-step dept

As expected the so-called Hargreaves Review of copyright laws in the UK has been released, and it makes a bunch of not-particularly-radical suggestions on how to improve copyright law, many of which showed up five years ago in the Gowers Report, and were then promptly ignored by the UK government. There are definitely plenty of good suggestions in the report -- legalizing format shifting for personal use (technically, in the UK, ripping a CD is illegal), increasing the usability of orphan works, and legalizing a wider range of transformative uses. It also suggests setting up an agency that will "mediate" between copyright holders and those wishing to license music. All of these make some amount of sense, given the situation we're in today (not all make sense if we were given a blank slate, but we weren't...).

I mean, how can you complain about a report, that right at the very beginning states:

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

Simple, straight-forward, to the point, and quite reasonable. Which is why the copyright maximalists will hate it.

The report -- as expected -- falls short of saying the UK should replicate US style fair use rules, even though some of the committee members appear to have supported such a move. However, it does mock the claim from US-based filmmakers, that a US-style fair use law in the UK would stifle innovation there, noting that it was odd that the success of these firms -- with such a fair use policy in the US -- "does not stop important American creative businesses, such as the film industry, arguing passionately that the UK.. should resist the adoption of the same US style Fair Use approach with which these firms coexist in their home market."

There are some other good points in the report, such as pointing out that the UK needs to end ratcheting up copyright laws on faith-based, rather than evidence-based claims from the industry. In fact, it spends a lot of time pointing out the importance of using actual evidence in changing policy. It's so rare to see that in government discussions of intellectual property, so it's quite nice to see so much attention paid to it here. It specifically calls out the reality distortion field that the entertainment industry uses with politicians to influence policy:

"Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. Further distortion arises from the fact (not unique to this sector) that there is a striking asymmetry of interest between rights holders, for whom IP issues are of paramount importance, and consumers for whom they have been of passing interest only until the emergence of the internet as a focus for competing technological, economic, business and cultural concerns."

The report also touches on patent issues (to be honest, I had no idea that was to be covered), and points out that patents should not be extended into "non-technical" software or business methods without "clear evidence of benefit." It also highlights the harm done by patent thickets. In a huge surprise to me, it even includes the mobile phone patent thicket graphic I created last year (what, no royalties? -- joking, joking...) to demonstrate the insanity of patent thickets.

I was somewhat worried about the section that noted that "enforcement" and "education" are important when it comes to copyright -- because that directly contradicted the much more comprehensive recent SSRC report that found that neither education nor greater enforcement had any real impact. However, I was happy (but not surprised) to see Hargreaves refer multiple times to the SSRC report in highlighting these very issues in that section. While it still recommends "enforcement and education," it does so guardedly, and seems to suggest that the actual impact and effect of such policies should be carefully monitored to see if they really have any impact.

In the end, as with the Gowers Report, the sense I get is that there are a lot of good, smart, thoughtful, very modest, recommendations in there, and that the report likely pulled some punches, knowing that the report had to have some compromise and "moderation." But, I'm willing to bet that, as with the Gowers Report, even if politicians claim they'll listen to the recommendations, little (if anything) will change. Instead, we'll go back to the same old setup. The improvements suggested in the report won't show up in any actual legislation, but increasingly draconian, faith-based changes will continue to be pushed (successfully) by lobbyists. This is definitely an excellent report, but I'm skeptical that it will have the impact it should have.

Filed Under: copyright, fair use, hargreaves, patents, uk