Tuesday, 9 August 2011

Government’s Response to Hargreaves Review of IP: a good start or more to be done?

Last week the Government released their formal response to the Hargreaves Review of Intellectual Property and Growth . The Response broadly accepts the recommendations made and outlines how the Government proposes to act on each recommendation. Having read the response and taken some time to digest its contents, my overall view is that this is a significant step towards a long overdue copyright reform. However, it is a very ambitious move by the Government, given the tight timescales which have been set to achieve the desired changes to the IP framework. The Government is committed to creating favourable conditions for the encouragement of innovation and growth, but are leaving many of the finer practical details to the wider UK public, most likely those with a vested interest such as consumers, creators and businesses.

So what does the Government actually propose to do? Here’s my brief critical take on what I think are the most ground-breaking of the Government’s plans for action in the areas of copyright:

  1. Evidence surrounding the economic issues of IP will be fundamental in shaping policy. Fairness and social impact will also be considered. This is absolutely essential; evidence should drive policy and it is imperative that evidence is high quality and carries no bias. The recognition that fairness and social impact also have a part to play widens the conversation to include moral rights for creators and any potential impact on consumers. Historically, copyright policy has been swayed by opinion and effective lobbying, but the proposals for policy changes will now be looking for hard evidence adhering to Intellectual Property Office (IPO) guidance which will be published later this year.

  2. The creation of a Digital Copyright Exchange or similar to enable rights clearance by facilitating copyright licensing. My speculation is that the Government envisages a type of portal incorporating databases of rights information which would allow an organisation or an individual to pick and choose the works they wanted to use and the way they wanted to use them. Similar to a Rights Direct model but on a much larger scale; perhaps a sort of shopping basket approach similar to that of Amazon when you buy multiple items from a range of different sellers. In theory, a great idea - a vast digital marketplace where licensing of works is quick and easy. However, it is not an ideal solution for those rights holders who don't store works in database form already, as uploading individual works into a suitable rights database with metadata and ownership records will take time, skill and effort. It will be interesting to see the development of this proposal. The requirements for the DCE are outlined as follows:

    a. It must be free to use
    b. It must attract a ‘critical mass’ of material that is available and readily licensable
    c. Prices to be set or negotiated with rights holders subject to controls on unfair competition
    d. Voluntary scheme, not compulsory
    e. Self-funding, running on licensing transactions

  3. Proposals for an orphan works scheme which will allow for both commercial and cultural uses of orphan works. As this topic is prevalent in Europe at the moment, it was always likely that the Government were going to take an active role in tackling orphan works. This will be a hotly contested area, particularly with regards to commercial use of orphan works, but the mention of diligent searches and market rates for the use of orphan works is a good start. The unspoken question though is always going to be: where does the licence fee go? Into the DCE? Perhaps one to muse... The proposals for extended collective licensing are more vague, however, leaving a very unclear picture as to how that aspect will function.

  4. Widen the exceptions to copyright within the existing EU framework, provided that harm to rights holders is minimal, EU law and international treaties are adhered to, and that restrictions removed by exceptions are not re-imposed by contract. The exceptions will allow for limited private copying, more materials available to copy under the proviso of non-commercial research, text and data mining, archiving and parody. This will be widely consulted on and the scope of the exceptions will be determined from sound evidence. The proposals to widen copyright exceptions to make use of all the exceptions listed in the EU Information Society Directive will immensely benefit education and research and it is very promising that they have been recognised in such a way.

  5. Develop a three-pronged attack comprising enforcement of IP rights, education of users, and appropriation of business models. The Government has outlined in its IP Crime Strategy that it is committed to tackling ‘piracy’ (one hopes with the talk of prosecution under the Copyright, Designs and Patents Act that this report is not referring to file-sharing but rather the more criminal acts of copyright infringement such as mass sale of pirate copies for commercial gain). With civil infringements, rights holders will still have to deal with those themselves, but they (and especially smaller businesses) will be better supported with the introduction of a small claims track in the Patent County Court for claims under £5000 (assuming the cost of introducing one is not prohibitive).For me, the most encouraging aspect of this section is the recognition that business models need to change and adapt to the digital age. As such, the Government has pledged to work with industry to support efforts to develop new legitimate digital markets. File-sharing as an issue is unlikely to disappear, but the availability of high quality desirable digital content at affordable prices in an easy-to-access format should at least provide an incentive to entice people to acquire it via legitimate means.

  6. IPO to deliver copyright opinions service to clarify the applicability of copyright law. This may not look like a significant point but it really is. This will give the IPO a role not dissimilar to the Information Commissioner's Office (ICO) in terms of delivering opinions on complex copyright interpretations, and the IPO will become more of a ‘go-to’ service for educators struggling to make judgment calls, particularly in relation to new technology. But more than this: the Government hints that a copyright opinions service may shape the future of copyright legislation, identifying areas of uncertainty and supplementing the judgements of the legal profession and academic community. On the one hand, I see a copyright opinions service being quite fruitful – it’s often useful to be able to go to a public sector body and ask for a definite opinion on a matter. But on the other hand, could this be seen as the more easy way: rather than calling for a large scale review of the Copyright Act, this approach is quite piecemeal, which historically has not benefited copyright law. And how will the IPO interpret the law? Narrowly, as by the precedents set in the ECJ and other significant courts? Or more liberally, applying UK case law and interpretations? One major difference between the ICO and this newly appointed function of the IPO is that Freedom of Information legislation is home-grown and largely unaffected by EU case law, whereas copyright law is hugely influenced by the EU. It remains to be seen whether this will be a viable service or not, particularly where it relates to commercial enterprise.

    A longer post than I anticipated, and much more that could be said, but overall it is a good start. Those more cynical than I question whether this will go the same way as the Gowers Review and come to nothing despite the Government’s best intentions. But I remain positive; I think for once a lot of sensible truths based on evidence have been declared and at this difficult point in the economy businesses and the creative industries should be working hard to implement innovative schemes to enable their business to flourish in the digital age. Organised criminal piracy should be countered and prevented, and the Government should take a serious look at the support it needs to offer to creative industries in the form of tax breaks and advice. Education in particular should be able to thrive without fear of infringement of copyright, and the law needs to be brought up to date with digital technology and legitimise activities (i.e. copying a CD to a cassette tape) that have been innocently happening for decades.

    Thursday, 14 July 2011

    File-sharing: a research opportunity for Higher Education?

    A question asked by @Ottua at the 1709 Big Copyright Debate organised by @Ipkat earlier this week got me thinking: how can we know for sure how much damage really IS being done to the creative industries by file-sharing?

    This question comes up time and again. Surveys churn out various statistics, which show that file-sharing is extremely damaging to the industry which is suffering hugely as a result. Yet often these surveys are found to be commissioned by the industries themselves, which leaves the more sceptical among us wondering if this is really the true picture. Of course, it doesn’t help when we notice some obvious anomales, such as when Avatar managed to be both number one at the box office AND the number one most downloaded film, or the figures which show that alleged pirates are also the largest purchasers of legitimate content.

    Let it be clear: I am not advocating piracy or wilful infringement. I am a firm believer that piracy (definition: making a large-scale profit from copies of the original with no remuneration to the rights holder) is a crime, akin to counterfeiting, which is purely for an individual’s or company’s financial gain and motivated by making money at someone else’s expense. However, file-sharing (definition: the upload and download of creative content to freely share for no commercial gain) is a civil infringement, because you are breaching the communication to the public right under copyright. This says (effectively) that when you upload a work which is not your own and without permission from the rights owner, you are infringing copyright. Yet it still happens. Why?

    I think that from an early age we learn to share (some also argue that we learn to copy, but I see this as more by way of mimicking rather than copying work per se). Everyone has differing tastes and interests, making each of us a unique individual. And when we encounter others who have similar tastes and interests, our natural enthusiasm for those interests leads us to talking about them and sharing information. And when our interests tend to be, say, a mutual enjoyment of 80s rock music (yes really), we are likely to ask ‘have you heard of Band XYZ?’ They say no, and our immediate response is ‘oh you must! I’ll lend you the CD’. How many of us have lost many of our most treasured possessions this way? (My dad @davecg69 foolishly lent his Beatles 'Let it Be' vinyl with the booklet to a friend and never got it back, regretting it ever since!). So when the technology becomes available in the form of recording to cassette / CD, instead of saying ‘I’ll lend you the CD’, we say ‘I’ll make you a copy’. And the thought of copyright infringement does not even cross our minds.

    This has given me food for thought: if file-sharing is damaging, what about all the other ways in which we share content where the rights owner receives little or, more often, no recompense? And for which there is no defence in UK copyright law? What about when one person buys a DVD and a group of flatmates all sit down after a meal one night to watch it? What about when a parent puts on a Disney films for 20 kids at a sleepover or party (usually so they can have an hour’s rest!)? And how many of us read, watch, or listen to something, and when finished with it list it on eBay to sell to someone else? Or give it to a charity shop?

    How many of these constitute ‘lost sales’? When you consider the UK alone, almost 62 million people, have been doing these sorts of activities for years, without a private use exception in copyright, how damaging has that been? Yes it is true that you can reach the world through the medium of the Internet, and so instead of just a few people to share with, you can now share with thousands, if not millions. But that is not to say that everyone on the Internet is file-sharing copyright content. And on the flip side: how many people are using other sites where content can be legitimately acquired and paid for? Such as iTunes, or LoveFilm? Perhaps rather than focusing on the damage that file-sharing is having on the creative economy, industries should be comparing those statistics with the growth and use of legitimate downloads. I have little doubt that these sites have steadily increased in use over the past few years as more and more desirable content has become available to purchase.

    As I said at the debate, more research needs to be done into this area, and not just industry-led research either, but strong verified independent research. And who better to lead on this than universities? Only the other week I was delighted to read about the Arts & Humanities Research Council’s funding opportunity for a Centre for Copyright and New Business Models in the Creative Economy. This is a first-class opportunity for universities to do some highly valuable research which will benefit the creative economy, looking at (I hope) all the issues I’ve outlined above and more. Research could measure the impact of the recession (people refraining from spend on items for pleasure or luxury, such as film/cinema and books) on the creative economy, contextualising it within the economic climate, as that undoubtedly has had an effect. But universities could also collaborate with businesses and the technology industry to experiment with new and innovative business models, measuring their impact and effectiveness and assessing long-term benefits.

    I would urge Higher Education institutions to communicate and collaborate with one another on this project, which has the potential to revolutionise the way that research is being done in this area. A £5 million funding grant is not a figure you should ignore. Don't let this opportunity pass you by - get involved!

    Thursday, 30 June 2011

    Images & Copyright Part 1: Photographs

    A little while ago I crowd-sourced Twitter for copyright questions about images. These questions helped inform a talk that I gave to the Art Libraries Society (ARLIS) on images and copyright, looking at the issues are faced by information professionals dealing with visual resources in the digital age.

    What I found most interesting about the questions I received was that most of them concerned photographs. Fascinating, but not surprising, as photographs are a very unique type of artistic work and as with audiovisual works can include other types of copyright work. Fortunately, I’m very interested in photographers’ rights and deliver talks regularly to photography societies. Questions about photographs usually fall into two distinct categories: the actual taking of a photograph, and the subsequent use of a photograph. I will address both.

    Photographing people (individuals and groups)

    @chr1staylor questioned whether consent is required from people when taking photographs. But in order to answer this question, it must be placed in context; you have to look at the circumstances surrounding the taking of the photo. There is no law which prevents the actual taking of a photo, with the exception of s.41 of the Criminal Justice Act which prohibits the taking of photos in and around court. However, you must respect people’s privacy: Article 8 of the Human Rights Act says that everyone has the right to respect for his private and family life, his home and his correspondence. Using a telephoto lens to snap someone through their bedroom window, for example, would violate their privacy right. It is not illegal or unlawful to take pictures of people in public, but crucially it is what you do with the photograph which is the real issue.

    Publicity or image rights are not codified in UK law but are bound up in intellectual property and media law. Jane Coyle’s article in lawdit offers a concise exploration of the subject. When it comes to use in advertising, the Advertising Standards Authority states that:

    Advertisers should seek written permission from those whose image will be used in any promotional campaign especially in respect of commercial activity and endorsement.

    You must get consent from any individual whose photograph you want to use commercially (and this includes websites which are seen as advertising and marketing tools). Celebrities often have a strong sense of the rights to their own image (some even take it to the extreme). Using a photograph of a celebrity that you snapped at a red carpet event to endorse your latest brand will most likely land you a lawsuit (unless they had agreed to promote your brand). Photographers taking pictures of models will need signed written consent in order to licence the photos to stock image galleries.

    The following situations do not require consent: taking photographs of people or individuals at public events for non-commercial purposes (including uploading the photos to social networks) or for the purposes of news reporting. A question from @grantreilly asked whether consent would be required when taking photographs of people playing sport on university fields and then uploading those photos to Facebook; the short answer is no.

    Photographing things

    In the UK, some photography could get you into trouble with the relevant applicable law. These are predominantly photographing sensitive locations (e.g. military bases), protected species of wildlife at their nesting places, bank notes, logos and trademarks, and artwork which is still in copyright and isn’t permanently situated in a public place.

    In other circumstances, it is usually the purpose for which the photo is intended to be used which is the crucial element. If a copyright work is the main focus of the photo, you will need permission from the copyright holder to use the image commercially. Bear in mind that some iconic buildings may be brands in their own right and contain intellectual property rights (for example, the Sears Tower).
    @glynmoody pointed me towards a blog containing questions on photography; I’ll include a couple of them here:

    * Can I take a picture of a model in a designer dress and sell or give away copies of the picture with only the model’s permission? – yes; there is some discrepancy over whether clothing attracts sufficient protection under copyright as a work of artistic craftsmanship. It would be wise not to use this photograph for any type of advertising purpose.

    * Can I take a picture of a room papered with designer wallpaper and sell or give away copies of the picture? – as long as the wallpaper is not the focus of the photograph (i.e. a close up shot of the wallpaper), then yes this would be ok.

    You don’t have to obtain specific permission to take photographs of copyright works and use them to accompany news reports, reviews and critiques, or to advertise their sale. Nor do you have to obtain permission where the protected item is not the focus of the picture or where the photograph is for your own private use. Logos are always tricky because they can often be covered by other intellectual property rights such as trade marks or design rights.
    @richardberryuk queried whether a logo appearing in an image should be blurred out; if the logo is incidentally included in the photograph, this would be unnecessary – deliberate inclusion, on the other hand, may be seen as infringement.

    Wednesday, 18 May 2011

    Hargreaves Review recommendations: impact on cultural and education sectors

    After days of speculation, rumours and leaks, the results are finally in... but what impact, if any, will they have on the education and cultural sectors?

    1. Format-shifting

    Under current copyright law there is no provision to format shift for private use, meaning that when you purchase a CD, it is technically an infringement to copy it to your computer and then add the tracks to your iPod. For libraries and archives, however, there is a narrow provision in the Copyright, Designs and Patents Act which permits the making of a replacement copy of a literary, dramatic or musical work in order to preserve it. The scope is narrow because it doesn’t extend to artistic works such as photographs, or to sound recordings or films, many of which are stored in archives unable to be used because the technology has moved on and the hardware on which to run them is obsolete. This recommendation will bring copyright law in line with the practices across the UK in terms of format-shifting between devices and give the Copyright Act more credibility in the eyes of consumers. More importantly though, it will allow cultural heritage institutions to convert their collections from an obsolete format to one which will run in the digital age. These will be of great benefit to researchers, particularly those involved in the Arts subjects.

    2. Text and data mining

    Text and data mining are processes which researchers can use to analyse information. Algorithms are programmed to look for relationships between certain facts across a wide range of data and information, which enables rapid delivery of research data and results. However, numerous contracts do not permit text and data mining, and there is also a question over whether the process infringes copyright and database rights, as it has to copy the information in order to analyse it. The Hargreaves Review is keen to promote the concept of text and data mining at EU level and is keen that copyright law should not hinder scientific research by blocking these processes, as they will be key to the development and growth of scientific research.

    3. Legislation to prevent exceptions in copyright law being superseded by contract

    Following on from the second point, this recommendation is extremely important to allow researchers as well as the education and cultural sectors to benefit from the exceptions which have been outlined in both the CDPA and the EU’s Information Society Directive. The Review proposes an adoption of all Article 5 exceptions, including parody. The education sector in particular has a lot of problems with contracts containing extremely narrow permissions to use licensed works in certain ways, and libraries have struggled for years with contracts which specifically restrict actions which are permitted under copyright law. This provision would allow these sectors to breathe easily once more, and not continue to live in fear of breaching a contract at the expense of doing a permitted act.

    4. Orphan works

    An incendiary subject for those with a vested interest, but with the likelihood of a Directive from the EU on orphan works, the Hargreaves Review had little choice but to recommend legislation. However, they have proposed an interesting solution: the creation of a cross-sector and cross-border Digital Copyright Exchange, involving rights holders and creators, to be the framework for cross-border copyright licensing and governed by IPO-approved codes of practice. Within this framework, orphan works must be tried and tested to see whether they are truly ‘orphans’. Legislation will also enable extended collective licensing similar to the Nordic model to support mass digitisation in specific areas, a proposal which will be welcomed by the cultural heritage sector. Institutions however must continue to carry out diligent searches to try to discover the rights owner. Should a rights owner come forward to claim an orphan, there will be no liability for past use of that orphan but future use would be subject to negotiation with the owner. Additionally, any materials which had never been created or intended for commercial purposes would be subject to a nominal licence fee for use.

    Final thoughts...

    Sadly, the recommendations do not solve the issue over the use of images for teaching purposes, but it’s not a bad start – the recommendation to implement all the provisions in Article 5 of the Information Society Directive which would allow for parody (about time) and format shifting for preservation purposes will be welcomed, particularly by archives and libraries. There is also a desire to make copyright law adaptable to new technologies, a very wise move in an age where digital technology is so rapidly changing. The recommendations are based on the evidence provided, but whether the Government chooses to implement them, and furthermore how they are implemented remains to be seen.

    Tuesday, 19 April 2011

    Talking about copyright issues in education with the UK's Intellectual Property Office

    If you’d asked me a year ago to describe my thoughts towards the Intellectual Property Office I would probably have used words like ‘distant’ and ‘unresponsive’. I’ll be the first to admit my frustrations with the IPO over the Gowers Review, seeing as I, like many of my colleagues, spent a lot of time constructing a response to the second round of consultations only to watch it disappear into a vacuum. Then the Prime Minister announced a review of UK IP laws last November. Some more cynical colleagues of mine felt little enthusiasm for this, as it looked like a complete disregard of the efforts expended by the Gowers Review and re-examined the same set of issues. But I was optimistic – this review was destined to be different, heavily evidence-based with a focus on growth and innovation.

    No-one was more surprised than I when the IPO set up a Twitter account and a blog dedicated to the Hargreaves Review. Not only that, an entire area of the IPO website was devoted to the Review panel, outlining the scope of the review and the submission process. The panel proactively met with numerous stakeholders, blogging about their visits on the website. I was immensely impressed by the ways in which the IPO actively engaged with the public and by the transparency of the whole process, and my faith was restored.

    A chance encounter on Twitter with members of the IPO during the recent BBC Radio 4’s ‘Unreliable Evidence’ show on IP (in which the IPO featured) led to an invitation to visit the IPO to meet the copyright team. To say I was excited is an understatement, as I’m sure those who know me will agree! The agenda for the morning was set out as follows: tour, meet communications team, meet business outreach and information centre teams, tour of Copyright and IP Enforcement Directorate, presentation to and discussion with the copyright team on key issues.

    The day itself was a fascinating overview of how the IPO functions and the services it provides to businesses, creatives and the wider public. Matt Navarra, the IPO’s Communications Manager, was my guide for most of the day, and after a customary tour of the facilities we settled down at his desk to look at what was happening in the world. Some of Matt’s current responsibilities include managing the IPO’s Social Media Channels, liaising with broadcasters and journalists who want to run news stories or create TV/Radio shows about IP, internal communications, working on the Hargreaves Review, launching the new ‘Peer to Patent’ web tool, finalising the IPO’s World IP Day plans, and generally keeping close links with the Minister for Intellectual Property. I thought my day job was busy!

    After dealing with a few urgent inbox items, Matt introduced me to the Information Centre team. This is the hub of the IPO’s communication with the public, where a team of call centre staff answer calls on IP from all over the country. Approximately 300 of the 9000 calls received every month were about copyright, which staff said provided some of the more challenging calls. The Sales and Service team provides paid-for services to larger businesses to deal with their licensing needs, IP questions and undertaking research on their behalf, such as patent searches. The IPO are keen to extend these types of services to cater for the needs of small to medium sized enterprises, as they recognise that smaller businesses are interested in these paid-for services too. The Business Outreach and Education support SMEs and the education sector in understanding and using IP; a key way in which this is achieved is through the holding of free IP Awareness events and other outreach activities across the UK throughout the year.

    From the Information Centre we moved on to the Copyright Policy and IP Enforcement Policy Directorate (CED); here, small teams of about 3 people focus on specific areas, such as EU and International copyright and enforcement issues, managing the copyright legal framework, or focussing on particular issues such as the digital agenda. They continually monitor case law and policy issues as they develop both here and in Europe. Teams also cover civil and criminal enforcement policy in relation to IP. Steve Rowan (Deputy Director – Copyright and IP Enforcement) is one of two managers who head up this unit. He also appeared on the previously mentioned BBC Radio 4’s ‘Unreliable Evidence’ show about IP.

    In a large seminar room, I was invited to present issues which I saw as key to the education and cultural heritage sectors to the copyright team – an extremely unique opportunity. I explained our frustration with inadequate or absent licence agreements, in particular to address the growing need for placing audiovisual material on Virtual Learning Environments to deliver courses to students in partner institutions overseas. I voiced our concern about the rising cost of licences from collecting societies, some of which are attempting to force us to adopt licences which we don’t need and which effectively make us pay a second time for content covered by independent electronic subscriptions. Contractual clauses limiting the provisions under copyright law are another big issue for education; it would be ideal if our legislation had a similar clause to the Irish Copyright Law preventing contracts from restricting what can be done under copyright law.

    Unfortunately, time quickly slipped away (as it tends to do when talking about copyright!) and I wish I could have spent longer discussing each issue in more depth with the team. Before my visit came to an end I was able to speak on one further point: the practical problems that the education sector faces on a daily basis with the use of images in teaching. Schools and colleges regulated by Ofsted are required to use images in teaching, but there are very few teachers who know much if anything about copyright. A legislative solution to the problem would be ideal, but failing that a licensing scheme could work, provided that it was sufficient to meet the needs of the sector.

    All in all, I had a very illuminating morning; I never realised how widespread the IPO’s activities were and how keenly they defend the interests of the UK legal system relating to IP. The team I met were fairly young, both in terms of age and length of time in post, but had a refreshing grasp on the complexities of copyright law and the issues involved. I feel more confident now that whatever the outcome of the Hargreaves Review, there is a team of people who are more prepared than ever to engage with the different sectors and who are capable of dealing with those sectors' specific needs. Everyone recognises that copyright law is in need of reform, and I remain positive that, legislative change or not, we are in good hands.

    Follow @The_IPO on Twitter for information and updates or visit their Facebook page

    (all views expressed are my own)

    Friday, 8 April 2011

    Should copyright law just be abolished?

    A controversial issue for discussion on a Friday, but an interesting one posed by David Allen Green on Twitter this morning (#copyright). Regardless of the arguments for and against copyright, I want to speculate on what it would look like for the education sector were copyright to be abolished.


    We can all agree that copyright is not suited to the digital age, given that the UK law was drafted in an analogue era. The move to digital and the remarkable growth of the Internet forever changed the landscape to which copyright law applies. As the law has been slow to respond to this landscape, contracts and licences have stepped into the breach to serve as solutions in the interim period, controlling the use of works online. My knowledge of the complexities of contract law is not strong, but as far as I understand it, contract law in the majority of cases supersedes copyright law, particularly when it comes to taking a claim to court. In my view, it is probably easier to prove breach of contract than infringement of copyright, and possibly cheaper too. Now, if copyright were to be abolished, what of licences and contracts? Would they simply disappear? I think not; rights holders (including publishers and recording agencies) would continue to monetise content (to some extent) as a commodity through contracts. When you purchase a song online, you would still have to abide by the terms and conditions of the contract by which you purchase it. If that contract contained a clause which said “upon purchase of this work you agree that it is solely for your own private use”, then if the song was (say) shared online on a public website for free download, the publisher/rights holder would be able to sue the purchaser for breach of contract. And we would return to the inherent problem of organisations pursuing individuals for file-sharing.

    Collecting Societies

    For educational establishments, a significant element in the abolition of copyright would be their relationship with collecting societies, if they continued to exist. After all, the Copyright Licensing Agency (CLA) would no longer be able to keep its name in a world without copyright. It is difficult to see the need for collecting societies in a world without copyright; this makes the abolition of copyright rather attractive for education, which would save over £100,000 per year in licence fees. But on the flip side, would there still be an incentive for authors and creators to produce content for learning and education? Academics must produce journal articles to remain ahead in their field and to share research, so the incentive to create will not be removed, particularly as they are not independently paid to write. Books perhaps would be another matter; in a world without copyright, should an academic desire to write a book, getting it published could be difficult as publishers may be reluctant to invest in something which instantly could be made available for free across the world. Journal publishers too would become aggregators of a large amount of free content, and without the money they generate from licensing, would likely decrease in quality and perhaps eventually decline. In our capitalist society, people don’t like working for free. Businesses can generate advertising revenue, but publishers would have their livelihoods pulled out from beneath them, meaning no money for salaries and therefore job losses. Would authors write academic textbooks and similar for free? Some are very enthusiastic and may well do, particularly if they are already employed and don’t have to live off what they write, but others would have little incentive as the equation to them looks like a lot of time and effort for no reward.


    Perhaps most significantly: where does a world without copyright leave academic discipline? Copyright surely underpins the foundations of plagiarism, as there is currently a defence in copyright law that if a work of copyright is used for the purposes of examination, it does not infringe so long as there is sufficient acknowledgement. If I, as a student, could copy and use someone else’s entire thesis or dissertation, why would I have to reference it? Could I not pass it off as my own? And if so, where would be my punishment, as I have not done anything wrong? It may not be my original work, but in a world without copyright, why should originality matter? Would it matter if I got a First as a result of reproducing other people’s work? To my mind, there is a lot of injustice in this particular issue – it feels morally and ethically wrong to merely reproduce other people’s work and pass it off as your own, as it levels the playing field. A good plagiarist, who can remix and re-work other people’s work so as to create something sufficiently original, would be more commendable in this instance, as it shows independent skill and judgement, than one who merely spouts verbatim someone else’s work with little or no original intellectual thought.

    The academic world seeks to encourage learning and research by building on others’ arguments. There is currently a means for this in copyright law. Without copyright law, what is the criteria for distinguishing a poor student from an excellent one? Writing style perhaps? But if this is copied from another’s work? This sets a poor precedent for the good of society, discouraging original intellectual process and carefully constructed arguments and replacing them with laziness. And with this comes the question of ownership: without copyright, would it matter who the author was? Could you even prove they were the original author? Would it be necessary to? No, for in a world without copyright, the author is bereft; the more appreciative of us would give a hat-tip to the original creator, but others would not. The easy replication and re-use of content means that one is at a loss as to who the original author actually is, and also negates the citation process.


    From the tone of this post, you may gather that I am not for the abolition of copyright, as I recognise its value to creators. But I also recognise the problems with it. Without copyright, truly original content would diminish significantly, and in its place would be remixes of previous content, in themselves no bad thing, but would we really just want that? We all lead busy lives, and I’m sure all of us at some stage have thought about writing a book, but would it really be worth giving up your weekends and evenings for several years to write a masterpiece if you knew you would receive little reward? There are some people who do this, and I don’t say that it is a bad thing, but they are few and far between. We are driven by capitalism, and that means making money wherever we see the opportunity. If content cannot be monetised, services would have to be more so, and so the trade off as a consumer would be to pay significantly more for the services of the creatives who once made a living from their copyright works. For the photographer, it would be the services of his photographic studio; for the musician, it would be the ticket sales of live gigs. For education? I would argue that academic discipline would be sacrificed, although educational establishments would save a lot of money in licensing fees. A world without copyright is akin to the “golden age” presented by Gonzalo in The Tempest (Act II sc.i), an ideal to aspire to but which cannot exist in a capitalist society where money is the driver and not morality and goodwill.

    Friday, 1 April 2011

    Copyright (for) Jokes?

    Some time ago I was looking for copyright jokes (that is to say, jokes about copyright) to liven up a presentation entitled 'Recent Developments in Copyright'. It's a long-standing truism that copyright is, to most people, a dull subject, full of hindrance and restrictions. And, given its enforcement in and general poor suitability to the digital age, I am not oblivious to the delicious irony that copyright law can itself be a 'joke'.

    However, as a Copyright Officer with a sense of humour, I was determined to unearth some witticisms on the subject of copyright. A lot of my followers on Twitter were extremely forthcoming with jokes to do with copyright, and I had an excellent response to my research (which was done, as light-hearted things always are, on a Friday). Yet, as I gathered all these jokes, quips, puns and cartoons together to find one suitable for my presentation, I had a sneaking suspicion that I may not be able to formulate them into a blog post, given that they were probably (ironically) copyright protected. So I let them be.

    But today I have been encouraged and inspired by an article in the Washington College of Law's publication Intellectual Property Brief which discussed the copyright in a joke. Caroline Gousse has carefully analysed the courts' responses to the copyrightability of jokes, and has determined that it has only been in very rare cases that courts have declared jokes as attracting copyright protection. Not only that: the very reason for a joke's existence is to induce laughter, and the novelty factor of a joke wears off the more that it is told.

    So, in light of this positive encouragement, I want to review some of the wonderful humour on and about copyright which was shared with me by Twitter faithfuls a few months back:

    I went to a party the other day and everyone was naked, turns out it was fancy dress but it was raided by ACS Law and all the superhero costumes were copyrighted (via @patlockley)

    Why do all copyright lawyers like kings and queens? Because they are big fans of royalties (via @patlockley)

    An Englishman, Irishman and Scotsman walk into the bar, The Englishman says "I wish I had copyrighted this joke" (via @BugsieGiven)

    I know a very good joke about copyright but unfortunately I can't afford the royalty fees to be able to tell you.. (via @Felna - a lot of people came up with the same line!)

    How many copyright lawyers does it take to change a light bulb? Two - one to decide to do it, the other to actually change it (via @aaronwood)

    I have a fabulous copyright joke but I can't share it as it's not licensed for redistribution (via @neonwombat)

    Johnny Depp was arrested today for making pirate DVDs (via @4ndrewWall)

    This is how we used to pirate music when I was a kid: http://is.gd/hmgAo (via @socialtechno)

    Whoever invented the copyright symbol should have a fortune by now (via @OldFunnyJoker but thanks to @Mwirigi)

    Cartoons about copyright:

    http://www.courtoons.net/2009/03/16/copyright/ http://www.lonympics.co.uk/new/Aaay.php http://www.law.duke.edu/cspd/comics/digital.php http://ninapaley.com/mimiandeunice/2010/07/30/intellectual-pooperty/ http://warriorlibrarian.com/IMHO/nocopyme.html http://www.cartoonstock.com/lowres/cgo0236l.jpg http://dilbert.com/strips/comic/2010-09-02/

    (with greatest of thanks to all who submitted - you provided me with much amusement)

    Thursday, 24 February 2011

    The Hargreaves’ IP Review: a visit to the Intellectual Property Office

    Yesterday, alongside two colleagues, I was privileged to meet with members of the Intellectual Property Office (IPO) support team for the Hargreaves Review to discuss some of the issues with the current copyright framework faced by the education and cultural sectors. As the Review calls for substantial evidence of the IP Framework’s impact on the economy in terms of innovation and growth, I had to ensure that we were armed with relevant statistics from credible studies and a variety of individual case studies which backed up our concerns.

    The Scope of the Review

    The team has been inundated with responses but must adhere to the narrow scope of the call for evidence laid out in the terms of reference. As such, any issues that cannot be linked to innovation and economic growth will not be considered. However, the emphasis on economics does not mean that the report will deal only with economic issues; rather, this is to help identify any monopolies and undesirable aspects of copyright.

    The concept of fair use cannot be implemented in the UK as it lies outside of the scope of Article 5 of the EU Information Society Directive, and even if it could it would be an unpopular solution as a result of the amount of litigation it would generate. But, as the Prime Minister has raised the fair use question, the Hargreaves Review must make recommendations on what could be done in place of fair use to better drive innovation.

    Main issues under consideration

    A core issue appears to be licensing. The team would welcome ideas on how to devise a reasonably uncomplicated future-proof (i.e. technology-neutral) licensing system which serves both creators and consumers, and thoughts as to how this could be regulated. One area in which universities and libraries struggle is in the breadth and variety of licences they deal with on a regular basis. It is widely held that contracts and licences take precedence over copyright law, and this causes immeasurable problems, not least when licences restrict the provisions that copyright law allows under fair dealing and other exceptions/defences. A huge problem facing universities in the UK as they strike up partnerships with institutions overseas is that of the delivery of resources. This is all facilitated by licensing and international contracts, many of which are in the originating country’s language and which all state that they are governed by the originating country’s jurisdiction. No ordinary individual would be expected to know the copyright laws of every country, and certainly not the users of those resources. Licence terms are not uniform or standard, and there needs to be a clear recognition that the defences in copyright law are allowed to stand in spite of contractual terms and conditions.

    Recommendations from and responses to the Gowers Review are also being considered as part of Hargreaves’ Review. This is good news for the education and cultural sectors as Gowers covered issues such as format-shifting for preservation purposes and making copies of parts of sound recordings and films for researchers by librarians and archivists. However, there is a need for evidence that the changes recommended by Gowers will benefit research, innovation and economic growth, and so anyone responding to the Hargreaves Review in support of Gowers should try and tie the two together.

    Facilitating research and innovation

    The UK copyright framework never anticipated the new ways in which people are researching and analysing information. This is particularly relevant when considering text and data mining, a process which facilitates large scale research and analysis but which potentially infringes copyright in the copying of information for analysis. One idea for the future, perhaps a controversial one, is that in the digital age, the act of copying itself should not be the primary form of infringement, but rather the use of the copy thereafter.

    Orphan works is another issue that the Hargreaves Review can't avoid, and there was an indication that the process and scope of dealing with orphan works would be looked at in some depth. I took the liberty of pointing out that the Review may want to factor moral rights back into the debate at this stage, as unless there is a removal of the requirement to assert the moral right of paternity (the right to be attributed as the author/creator of the work) from copyright law, orphan works will continue to be created. It is also highly unlikely that rights holders will consider any form of licensing agreement for the use of orphan works without the proviso that their moral rights as creators are both automatic and strengthened. One of the most frustrating issues for archivists is that the vast majority of material in their archives is unpublished, which means it remains in copyright until 2039. The removal and replacement of this term limit with the standard term (copyright lasts for life of the creator/author plus 70 years in most cases) for unpublished works would bring the UK into line with Europe and ease the burden of ‘orphan works’ where the creator/author is known but the copyright holder cannot be traced.

    Finally, much of copyright law is based on legal precedent, but most copyright infringement cases settle out of court which means that no legal precedent is set. Settlement outcomes are also almost always undisclosed and private. As a result, publishers are very risk averse, requiring authors to clear the rights to practically all material they use which is not their own. It is possible that a solution to this would be for the IPO to prepare some good practice guidelines on the use of material under fair dealing.


    I walked away from the IPO yesterday feeling fairly positive – they took copious notes and appeared to agree with our arguments and suggestions. However, we were told that Hargreaves’ report to the Prime Minister will be quite short and will contain high level recommendations. These are likely to be supplemented by background material provided by the IP Review team. The report will be forthcoming in late April or after the elections and referendum in May. These are interesting times for copyright and I am really hoping that this time, things will start to change in our favour.