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.
Tuesday, 19 April 2011
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.
Contracts
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.
Plagiarism
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.
Conclusion
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.
Conclusion
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.
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.
Conclusion
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.
Tuesday, 30 November 2010
Finding the common ground between Wikimedia and the Cultural Sector
On Friday 26th November I set off for the British Museum to attend the first day of the GLAMWIKI conference, which saw cultural sector types mixing with Wikimedians in an effort to discuss issues common to both. A number of worthy speakers were on the agenda, including Jimmy Wales (founder of Wikipedia), Cory Doctorow and Joscelyn Upendran from Creative Commons UK.
Keynote
Cory Doctorow opened proceedings with a keynote speech on the importance of museums, libraries, galleries and archives, coupled with his vision for the cultural use of items housed within them. He claimed that copying is ingrained in our very identities as human beings, and that copying, remixing and sharing has contributed to the flow of expressions and ideas which have shaped our society and provided us with such a rich cultural heritage. Cultural institutions should be encouraged to open their collections so that the public can use these items in a cultural way (sadly he didn’t elaborate on this, as it would have been interesting to hear more). The institutions should not charge the public a fee, as rent-seeking is inconsistent with cultural use. However, cultural institutions are concerned about the ways in which their works are used, keen to protect their “brand” and to ensure they don’t suffer any reputational damage.
Funding and Commercial Interest
Apart from rights clearance issues, the current economic climate makes it almost impossible for institutions to find the money for digitisation projects. As a result, they almost always have to seek out private investment, which unfortunately can come with some commercial strings attached. Another danger is viewing digital cultural assets as money-making tools in themselves - the cultural sector can be in danger of over-estimating the potential commercial gain and under-estimating the public good that digitisation of artefacts would bring.
Creative Commons
Joscelyn’s presentation on the relevance of Creative Commons for the cultural sector provided a snapshot of pros and cons of the licences, leaving the decision to use CC licences firmly with the audience. A number of people were surprised that a CC licence is a legally recognised contract, which requires careful thought as to its application so as to suit the purposes of the institution. Advantages of CC licences are that they openly generate interest (new business models can be designed to plan for their application) and that cultural objects from institutions can be discovered in standard search engines. The biggest threat of CC licences was future-proofing; if an institution wants to commercialise its assets in the future, then having some already available for free under a CC licence could jeopardise that plan. This added to other threats such as misrepresentation of the institution and derogatory use.
The rest of the day encompassed a variety of talks (many from Wikimedians) on collaborative projects happening across Europe in the cultural sector. I found the most interesting of these to be Europeana, an EC funded portal through which digital cultural material can be accessed. The database operates similar to Google, with metadata and a preview – if you click on the item you are taken straight through to the institution which holds it.
Free-conomy and the Cultural Sector – 3 directions for transforming copyright
The highlight for me was the evening keynote by Dr Kenneth Crews and ensuing panel discussion. The panel was formed of individuals from Europeana, the British Film Institute (BFI), the BBC and the National Portrait Gallery (standing in for DACS who could not attend).
The gist of the keynote was contract versus copyright. Copyright law’s fragmentation into different sets of rights (moral rights, performers’ rights, and so on) means there is much confusion and ignorance about it. This has been countered by licences, drafted to try to simplify permissible uses of material. However, in the cultural sector, works which are out of copyright are being digitised and licensed to end users. The licences enforced are non-standard and vary widely depending on the institution deploying them, often containing clauses going into as much detail as the ways in which the item can be placed on a page. The prevailing question is: where does the cultural sector get the right to assert these terms? Surely, it can’t all stem from copyright law. The 1998 case of Bridgeman Art Library held that reproductions of public domain artworks are not copyrightable as they constitute an exact reproduction which doesn’t attract copyright. However, most cultural sector institutions assert rights when licensing the exact same things.
The problem with licences is that they form a contract which in effect overrules copyright law. This includes all of the fair dealing / fair use provisions. So what can be done? If copyright is perpetually overruled by contract, should there be a system of fair contract law in place? Is licensing simply a way to hammer home one party’s interests at the expense of not only copyright law but also the interests of the users?
Responses from the Panel
Responses were varied but sparked a lively and interesting debate. The representative from the BFI (whose funding is split 40/60 government/private) believed that publicly-funded material should be for the public, in essence viewing the public as investors. The public need to connect better with their cultural heritage, which means finding ways of making the collections accessible so that people are both aware of the collections and can appreciate them fully.
Following on from this, the representative from Europeana drew attention once more to the idea expressed in the Digital Economy Act of extended collective licensing (ECL). This is the statutory authority existing in some countries giving an organisation the legal authority to represent all rights holders and act on their behalf. ECL can only work when a strong and effective money flow system is in place, and it is doubtful that such a system could work across Europe.
The representative from the BBC commented that the increased potential for copyright infringement via advanced technologies combined with new ways of creating material poses a serious threat to business models and conflicts with a law which was never written for this sort of purpose. Nobody ever anticipated a world in which copyright was king. People who can afford expensive lawyers can lock up creative copyrighted material, and the introduction of licences for digital material controls use and continues the monopoly. Contract should not replace copyright; indeed, Creative Commons was a scheme introduced to highlight the problems with current copyright law, not solve them.
The National Portrait Gallery’s representative took a more pragmatic approach to the problem. The emphasis of cultural organisations has shifted from the collection of artefacts to the digitisation and use of the digitised objects, bringing the issue of copyright to the fore. They adopt a risk management approach to digitisation, accepting that the works are likely to be in copyright and pursuing a number of avenues in an attempt to discover the copyright owner. However, even with this detailed research, few copyright owners are ever found. The desire to serve the public by opening up collections can outweigh the risk of a copyright infringement claim, and sometimes the decision is taken to accept the risk. The idea of balance is no longer relevant; rather, the key is in making tough decisions to agree on what is right for wider society.
Question & Answer session
Following thoughts from the panel, the debate was open to the floor. Questions ranged from how to re-define the ‘public domain’ in a global society to systems of funding necessary to open collections up to the public. Some solutions given by the panel included sharing data and descriptions of the collections with the public – there is no copyright in metadata as it’s factual and can therefore be used to the cultural sector’s advantage. The public also has a right to know how their money is being used – cultural institutions should highlight the need to preserve their collections by engaging the public with their content.
Final Thoughts
Sadly, the issues with copyright law cannot be solved over the course of an evening’s panel debate. Still, I came away with lots to think about, especially as the coalition government has called for a review of Intellectual Property Law. For me, possibly one of the most frustrating elements of the Copyright Act is that it applies in exactly the same way to oil paintings hanging in a gallery as it does to photographs taken with a camera phone. My feeling would be that the law needs amending so as to clarify that some degree of skill and judgement is required to allow for an artistic work to attract copyright.
In the meantime, we need to be good stewards of copyright so that we start to think now about how we want our created works to be used in the future. As copyright lasts for 70 years after we’re dead and gone, this is indeed food for thought...
Keynote
Cory Doctorow opened proceedings with a keynote speech on the importance of museums, libraries, galleries and archives, coupled with his vision for the cultural use of items housed within them. He claimed that copying is ingrained in our very identities as human beings, and that copying, remixing and sharing has contributed to the flow of expressions and ideas which have shaped our society and provided us with such a rich cultural heritage. Cultural institutions should be encouraged to open their collections so that the public can use these items in a cultural way (sadly he didn’t elaborate on this, as it would have been interesting to hear more). The institutions should not charge the public a fee, as rent-seeking is inconsistent with cultural use. However, cultural institutions are concerned about the ways in which their works are used, keen to protect their “brand” and to ensure they don’t suffer any reputational damage.
Funding and Commercial Interest
Apart from rights clearance issues, the current economic climate makes it almost impossible for institutions to find the money for digitisation projects. As a result, they almost always have to seek out private investment, which unfortunately can come with some commercial strings attached. Another danger is viewing digital cultural assets as money-making tools in themselves - the cultural sector can be in danger of over-estimating the potential commercial gain and under-estimating the public good that digitisation of artefacts would bring.
Creative Commons
Joscelyn’s presentation on the relevance of Creative Commons for the cultural sector provided a snapshot of pros and cons of the licences, leaving the decision to use CC licences firmly with the audience. A number of people were surprised that a CC licence is a legally recognised contract, which requires careful thought as to its application so as to suit the purposes of the institution. Advantages of CC licences are that they openly generate interest (new business models can be designed to plan for their application) and that cultural objects from institutions can be discovered in standard search engines. The biggest threat of CC licences was future-proofing; if an institution wants to commercialise its assets in the future, then having some already available for free under a CC licence could jeopardise that plan. This added to other threats such as misrepresentation of the institution and derogatory use.
The rest of the day encompassed a variety of talks (many from Wikimedians) on collaborative projects happening across Europe in the cultural sector. I found the most interesting of these to be Europeana, an EC funded portal through which digital cultural material can be accessed. The database operates similar to Google, with metadata and a preview – if you click on the item you are taken straight through to the institution which holds it.
Free-conomy and the Cultural Sector – 3 directions for transforming copyright
The highlight for me was the evening keynote by Dr Kenneth Crews and ensuing panel discussion. The panel was formed of individuals from Europeana, the British Film Institute (BFI), the BBC and the National Portrait Gallery (standing in for DACS who could not attend).
The gist of the keynote was contract versus copyright. Copyright law’s fragmentation into different sets of rights (moral rights, performers’ rights, and so on) means there is much confusion and ignorance about it. This has been countered by licences, drafted to try to simplify permissible uses of material. However, in the cultural sector, works which are out of copyright are being digitised and licensed to end users. The licences enforced are non-standard and vary widely depending on the institution deploying them, often containing clauses going into as much detail as the ways in which the item can be placed on a page. The prevailing question is: where does the cultural sector get the right to assert these terms? Surely, it can’t all stem from copyright law. The 1998 case of Bridgeman Art Library held that reproductions of public domain artworks are not copyrightable as they constitute an exact reproduction which doesn’t attract copyright. However, most cultural sector institutions assert rights when licensing the exact same things.
The problem with licences is that they form a contract which in effect overrules copyright law. This includes all of the fair dealing / fair use provisions. So what can be done? If copyright is perpetually overruled by contract, should there be a system of fair contract law in place? Is licensing simply a way to hammer home one party’s interests at the expense of not only copyright law but also the interests of the users?
Responses from the Panel
Responses were varied but sparked a lively and interesting debate. The representative from the BFI (whose funding is split 40/60 government/private) believed that publicly-funded material should be for the public, in essence viewing the public as investors. The public need to connect better with their cultural heritage, which means finding ways of making the collections accessible so that people are both aware of the collections and can appreciate them fully.
Following on from this, the representative from Europeana drew attention once more to the idea expressed in the Digital Economy Act of extended collective licensing (ECL). This is the statutory authority existing in some countries giving an organisation the legal authority to represent all rights holders and act on their behalf. ECL can only work when a strong and effective money flow system is in place, and it is doubtful that such a system could work across Europe.
The representative from the BBC commented that the increased potential for copyright infringement via advanced technologies combined with new ways of creating material poses a serious threat to business models and conflicts with a law which was never written for this sort of purpose. Nobody ever anticipated a world in which copyright was king. People who can afford expensive lawyers can lock up creative copyrighted material, and the introduction of licences for digital material controls use and continues the monopoly. Contract should not replace copyright; indeed, Creative Commons was a scheme introduced to highlight the problems with current copyright law, not solve them.
The National Portrait Gallery’s representative took a more pragmatic approach to the problem. The emphasis of cultural organisations has shifted from the collection of artefacts to the digitisation and use of the digitised objects, bringing the issue of copyright to the fore. They adopt a risk management approach to digitisation, accepting that the works are likely to be in copyright and pursuing a number of avenues in an attempt to discover the copyright owner. However, even with this detailed research, few copyright owners are ever found. The desire to serve the public by opening up collections can outweigh the risk of a copyright infringement claim, and sometimes the decision is taken to accept the risk. The idea of balance is no longer relevant; rather, the key is in making tough decisions to agree on what is right for wider society.
Question & Answer session
Following thoughts from the panel, the debate was open to the floor. Questions ranged from how to re-define the ‘public domain’ in a global society to systems of funding necessary to open collections up to the public. Some solutions given by the panel included sharing data and descriptions of the collections with the public – there is no copyright in metadata as it’s factual and can therefore be used to the cultural sector’s advantage. The public also has a right to know how their money is being used – cultural institutions should highlight the need to preserve their collections by engaging the public with their content.
Final Thoughts
Sadly, the issues with copyright law cannot be solved over the course of an evening’s panel debate. Still, I came away with lots to think about, especially as the coalition government has called for a review of Intellectual Property Law. For me, possibly one of the most frustrating elements of the Copyright Act is that it applies in exactly the same way to oil paintings hanging in a gallery as it does to photographs taken with a camera phone. My feeling would be that the law needs amending so as to clarify that some degree of skill and judgement is required to allow for an artistic work to attract copyright.
In the meantime, we need to be good stewards of copyright so that we start to think now about how we want our created works to be used in the future. As copyright lasts for 70 years after we’re dead and gone, this is indeed food for thought...
Wednesday, 10 November 2010
Public Intermediaries and the Digital Economy Act
Last night I attended an event at the British Library run by DEAPPG on the impact that the Digital Economy Act will have on Public Intermediaries. Speakers were Ben White (Copyright for Knowledge), Marshall Mateer (National Education Network), Mathew Dean (Association of Colleges) and Trefor Davies (TIMICO). Sadly no-one from OfCom could be present.
Costs to the Education Sector
Highlights of the evening for me were the figures in Ben's presentation: according to JANET, the network provider for the HE and FE sectors, the cost of implementing software to comply with the DE Act will cost the sector around £24 million every 3 years. Not only that; the appeals process could cost a university as much as £40,000 for a single appeal, equating to approximately £32 million across the sector per annum. In times like these, no university or college is going to have the funds to pump into dealing with copyright infringements as required by the Act. Moreover, the funding will mostly be public...what's more appropriate: tackling copyright infringements via the process set out in the Act and by OfCom's Initial Code of Obligations, or investing in learning equipment and resources for the students of the future?
Implications for Implementation
Educational establishments already have adequate procedures and policies in place for dealing with infringements. Compliance with the Act would involve cutting across current disciplinary procedures and increasing the level of user monitoring over the network. There are additional implications around the issue of data retention, privacy and freedom of expression. Interestingly, Marshall Mateer added that there is no evidence of mass downloading in schools.
So as public intermediaries, why do we need to stand against this?
Just a few of the reasons (highlighted last night) why the DE Act as it stands could have disastrous consequences on public intermediaries:
1. High impact on the public purse, because infringement cases will be left to the courts to decide. This costs public intermediaries money in terms of time and legal fees, and this process could repeat ad infinitum.
2. IT systems will become more locked down as opposed to more open, the opposite of what education and indeed the government is trying to achieve.
3. P2P networks are often used to transfer large amounts of research data and legitimate content. By blocking these, legitimate data sharing can't happen, thereby having a negative impact on research and the knowledge economy.
4. The real file-sharing activity will go underground with the use of tunnelling, which is impossible to block according to Trefor Davies.
5. Risk-averse institutions could withdraw internet access altogether for fear of non-compliance with the Act.
6. Where are the infringement letters going? For Local Authorities and universities and colleges, the administrative burden on discovering the infringement letters and then tracking the infringement itself is huge, and they could find themselves cut off from the internet before the relevant person has even seen the first letter.
Costs to the Education Sector
Highlights of the evening for me were the figures in Ben's presentation: according to JANET, the network provider for the HE and FE sectors, the cost of implementing software to comply with the DE Act will cost the sector around £24 million every 3 years. Not only that; the appeals process could cost a university as much as £40,000 for a single appeal, equating to approximately £32 million across the sector per annum. In times like these, no university or college is going to have the funds to pump into dealing with copyright infringements as required by the Act. Moreover, the funding will mostly be public...what's more appropriate: tackling copyright infringements via the process set out in the Act and by OfCom's Initial Code of Obligations, or investing in learning equipment and resources for the students of the future?
Implications for Implementation
Educational establishments already have adequate procedures and policies in place for dealing with infringements. Compliance with the Act would involve cutting across current disciplinary procedures and increasing the level of user monitoring over the network. There are additional implications around the issue of data retention, privacy and freedom of expression. Interestingly, Marshall Mateer added that there is no evidence of mass downloading in schools.
So as public intermediaries, why do we need to stand against this?
Just a few of the reasons (highlighted last night) why the DE Act as it stands could have disastrous consequences on public intermediaries:
1. High impact on the public purse, because infringement cases will be left to the courts to decide. This costs public intermediaries money in terms of time and legal fees, and this process could repeat ad infinitum.
2. IT systems will become more locked down as opposed to more open, the opposite of what education and indeed the government is trying to achieve.
3. P2P networks are often used to transfer large amounts of research data and legitimate content. By blocking these, legitimate data sharing can't happen, thereby having a negative impact on research and the knowledge economy.
4. The real file-sharing activity will go underground with the use of tunnelling, which is impossible to block according to Trefor Davies.
5. Risk-averse institutions could withdraw internet access altogether for fear of non-compliance with the Act.
6. Where are the infringement letters going? For Local Authorities and universities and colleges, the administrative burden on discovering the infringement letters and then tracking the infringement itself is huge, and they could find themselves cut off from the internet before the relevant person has even seen the first letter.
Is it all doom and gloom or is there a solution?
A few possible solutions were proposed by the panel last night, and have been taken away for discussion in the House of Commons later in the month. These were:
1. Create exceptions within the DE Act for public intermediaries, similar to those exceptions in the Copyright, Designs and Patents Act.
2. Define universities, colleges, libraries, museums and public WiFi providers as 'Communications Providers' (this would render them exempt under the current provisions).
3. Adopt a positive creative as well as consumer approach. Pupils and students are creatives now too, and should be better informed of the laws of copyright as it pertains to their own work as well as the work of others.
4. The library and education sectors (amongst others) should be engaged by the government and its relevant bodies on how to progress with IP and copyright law.
Final Thoughts
By the end of the evening there had been an admirable attempt to highlight the issues faced by public intermediaries in light of the DE Act and its overbearing principles. The general feeling was that there was a lot wrong with copyright law as it stands, but there was some optimism that Cameron's review might change the law for better. In the meantime, we wait with bated breath for OfCom to release its Code in the hope that they get the message.
NB: Copyright4Knowledge have been told that universities are not considered ISPs.
Tuesday, 9 November 2010
Fair Use v Fair Dealing
There’s been a lot of speculation following Cameron’s announcement of a review of IP Law about the implications of moving towards a ‘fair use’ provision in copyright law. Rights holders are against it, educational institutions should be for it, but what does it really mean?
Spot the Difference
Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:
The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.
Fair’s Fair...
So, the burning question.. what’s the difference between fair use and fair dealing?
One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)
My thoughts...
This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.
However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...
Spot the Difference
Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:
Both are subject to the Berne Convention
Copyright duration is 70 years from the death of the author/creator in both laws
Copyright is an automatic right in both laws
Both recognise moral rights (to an extent)
Both have exceptions and/or defences to copyright infringement
The US has a system of copyright registration, the UK used to but it was abolished a long time ago
The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.
Fair’s Fair...
So, the burning question.. what’s the difference between fair use and fair dealing?
One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)
My thoughts...
This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.
However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...
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