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.

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Comments on “UK Copyright Review Hardly Surprising Or Radical; But Will Face Opposition”

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Peter Brett (user link) says:

At the Pirate Party UK, our initial reading of the report suggests that the majority if not all of the recommendations are in agreement with the sort of changes we’ve been looking for for a long time. In general, they make good sense from both economic and practical points of view.

My personal expectation is, therefore, that the copyright industries will fight tooth and nail to ensure that none of the recommendations that might make an actual difference get implemented. The Association of Photographers is already up in arms about the idea of having a sane way to deal with orphan works, for example.

I would expect any Bill that actually gets as far as second reading to basically be to the Hargreaves Review as the Digital Economy Act was to the Digital Britain report. That is, there will be little resemblance, and it’ll be yet another exercise in grovelling before relatively economically insignificant corporate interests at the expense of the British people.

Duke (profile) says:

Some thoughts and a confession

To be blunt, having read up on EU law, we were never going to get “fair use” – it couldn’t get through the EC (not that I think it is a good thing). On the whole, the report does look very impressive, although I still think it could have very worrying effects.

As we saw from the Gowers Review, there’s a danger that the “industry-friendly” recommendations will be warped to the major lobbyists’ will, and the others will be ignored. In particular, I have serious concerns with what a “Digital Copyright Exchange” could look like in the hands of the PRS/BPI et al. – sounds like an excuse to give them back their monopoly on distribution.

While I’m here, I should probably confess; I included it in PPUk’s evidence when talking about patents (which I know annoyingly little about); obviously I made sure it was CC-BY first, and would have contacted you but it was one of those “already past the deadline” moments. Still, it is nice to know that they read what I put…

Richard (profile) says:

Re: Some thoughts and a confession - does the US actually have fair use?

To be blunt, having read up on EU law, we were never going to get “fair use” – it couldn’t get through the EC

Although in theory there is a significant difference between the concept of fair use in the US and the Fair dealing that the UK has – but in practice I doubt whether the US is actually in a better place on this issue.

Many things which are allowed by fair use but not by fair dealing seem to be (in practice) treated the same on both sides of the atlantic. For example private copying is allowed by fair use but not by fair dealing – but in practice no one is ever prosecuted for private copying in the UK – whereas DRM can prevent it on both sides of the atlantic – and circumvention is disallowed in the US – even in pursuit of activities that are supposedly legal on grounds of fair use.

The common (though technically incorrect) practice of treating fair use as “only a defence” in the US means that anyone who takes advantage of it (fair use) publically will be hit by a lawsuit that they are unlikely to be able to defend.

So is US fair use worth the paper that it is written on?

Duke (profile) says:

Re: Re: Some thoughts and a confession - does the US actually have fair use?

So is US fair use worth the paper that it is written on?

Personally, I don’t think it is. And that is reflected in PPUk’s submission.

While it may have a similar practical effect in the UK as the US, that is only because the law here is so often ignored; and speaking as a legal-type, that is never a good thing for a society. This is (partly) why it is so important to change the law to fit society, as there’s little chance of changing society to fit the law.

In my view, the way to do this is to seriously cut back on copyright law, so it only applies where it should and there’s no need for broad or uncertain defences.

Anonymous Coward says:

The view from the street

BBC Radio 4 “Today” program this morning introduced the story about the report being out with a quote from Google.
“We would never have succeeded if we’d started out in the UK” or words to that effect.

It was an interesting way to start framing the public discussion. You’ll no doubt see the more commercial media outlets fighting back though as the story is reported more.

krusty-g (profile) says:

The maximalist take

If you want to see how the hardcore IP enforcers view it, have a read of
PS: If you’re not aware of that authors other work, it’s painful. No comments allowed on most stories (email direct to author so he can cherry pick), and in the ones where you can anything contradicting him is screened. Also, he’s master of the straw-man, he’s like a voodoo priest or something.

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