Time to get real about copyright

May 23, 2011
For an informed view on connected entertainment in the UK & Ireland, visit Cue Entertainment 

Ian Hargreaves’ independent report on copyright in the UK arrived just five months after Prime Minister David Cameron commissioned it, but even its author agrees that “Digital Opportunity —A Review of Intellectual Property and Growth” could well find itself on the top shelf alongside many of its predecessors irrevocably marked “Too difficult”.

Hargreaves’ brush is broad and the report deals with a range of intellectual property rights (IP) from patents and designs to digital publishing. Many such endeavours take years to complete, at which point the commissioning government, or its successors, rejects the ideas they contain.

At least this one starts with the support of the Prime Minister, and the coalition government should begin work on the key recommendations immediately, particularly since the report itself describes the UK’s record on IP reform as “patchy at best”. The 2006 Gowers Review set a two-year deadline for fulfilment of its proposals. Five years on, more than half of Gowers’ recommendations for reform have not been implemented including one that sanctions a CD automatically ripped to iTunes, which is endorsed again in the new report.

It is, in any case, time for a radical rethink of how we define the case for copyright and for it to be based on tangible evidence and not on fears that it will upset the status quo. We have failed to convince consumers that copying is copyright theft; without far-reaching changes in current law, revenues will continue to fall.

The home entertainment industry shies away instinctively from the need to re-draft copyright law but the changes brought about by the high-speed internet make reform unavoidable. Content once protected effectively by the law is now disseminated widely without control. No amount of revision to a 300-year old Act can compete with the consequences of universal broadband access. It is not a matter of if copyright law should change, but when.

Hargreaves argues that it should be lawful to copy when it is for private purposes only and he points out that the UK has yet to implement European law that permits format shifting for music or video content. “Copyright law has started to act as a regulatory barrier to the creation of certain kinds of new internet-based businesses,” he says.

Among suggestions for change in the copyright law, the report notes “EU sanctioned exceptions will bring important cultural as well as economic benefits to the UK. Together, they will help to make copyright law better understood and more acceptable to the public.”

The report concludes that there has been “a clear demonstration of the failure of the copyright framework to adapt”. While true, this bald statement is certain to upset stakeholders in the home entertainment industry. The proposed remedy, that the Government should take “a constructive and engaged lead” in the process of reform, will require a depth of resolve that previous governments have shied away from. It is not a matter of abolishing copyright, more one of moving its point of application.

Hargreaves was tasked specifically to look at the workings of the “fair use” policy enshrined in the copyright law of the United States, which Cameron said would encourage in this country “the sort of creative innovation that exists in America”.

The report rejects legislation to implement fair use, not because of an objection to it in principle but because it would be difficult to convince other European countries that it is a good idea. It turns down “the big once-and-for-all fix of the UK promoting a fair use copyright exception to the EU, as recommended by Google and under examination by the Irish Government,” in favour of “…copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving”.

This paradox — fair use described as a “once-and-for-all fix” while at the same time it is ruled it out — is not resolved in the report and it leaves an important question unanswered: Is it really possible to continue our fragmented approach to copyright when high-speed broadband interconnects Europe?

Both sides of the divide frequently misquote the fair use provisions of the American copyright law in support of their argument. The 2009 US Copyright Act is actually more prescriptive than any legislation in the UK.

Explanatory notes from the US Copyright Office state, “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.” The web site advises, “The safest course is always to get permission from the copyright owner before using copyrighted material.” In the UK, the Intellectual Property Office is not even empowered to publish formal opinions in order to clarify the application of copyright law. Hargreaves proposes to remedy that.

The American concept of fair use does not imply unrestricted exploitation but it does set out clearly the circumstances in which copyright material may be used. Section 107 explains what is and what is not permitted and it empowers the courts to take action against those who break the law. For unwitting infringers, such as a classroom teacher making copies beyond what is allowed, penalties are sharply reduced. On the other hand, unlicensed commercial exploiters of copyright material pay dearly under American law and there is no reason to believe that a British or European equivalent would be any more lenient.

Rebellious British bloggers that agitate for the unlimited right to copy anything and everything they find on the internet and cite “fair use” as their justification, would do well to consult their American counterparts. They will discover that it is not the free-for-all of their dreams.

Cameron too may have misunderstood the implications of asking for fair use legislation but Hargreaves has sidestepped the argument in this report. Tinkering with existing law could burden the home entertainment industry with ever-more complex regulation, which consumers will continue to ignore, without resolving the contradictions at its heart.

The Digital Economy Act, which the Labour government rushed through in its final hours, is an example of what can go wrong when we attempt to patch a broken framework. The philosophy of “penalise and punish”, which underpins the copyright debate, is only enforceable when a reckless few are involved in illegal activity. Once retired seniors indulge in dodgy downloading — and these days they do — the battle is all but lost.

“UK copyright law currently makes everyday consumer activities, such as back-up and format-shifting of music, films and e-books, illegal,” says a submission to the report from the rights watchdog Consumer Focus, which is under threat of abolition. “Copyright law needs to be future-proof so that primary legislation does not have to be updated in step with technological advances.” They make a good point.

Online copyright infringement is widespread and otherwise law-abiding broadband users see little or nothing wrong in “stealing” music and video. In these circumstances, the solution is not more legislation, or even better education. A fundamental rethink of the presentation of copyright is required, changing the conventional wisdom that has survived for three centuries.

Hargreaves describes copyright as “a protected source of income for creators”, which has never been strictly true. The first copyright Act anywhere in the world, the Statute of Anne, came into force in 1710, three years after the creation of the United Kingdom. The legislation was in response to lobbying by the Company of Stationers who had lost their royal monopoly on printing and publication some years before and were anxious for recompense.

According to a contemporary account, they “came up to parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce parliament to grant them a statutory security”.

Far from recompense for authors of copyright works, the Statute of Anne awarded the income from the sale of printed materials to publishers and printers, who would pay authors as they saw fit. Initially without time limitation, the period of validity was subsequently restricted to 30 years. Today, copyright protection extends for 50 years after the author’s death with some parties seeking an extension to 70 years.

Copyright protection was never intended to be a “source of income for the creator”, who might have died decades before. It generates a revenue stream for the rights owners, their heirs and assigns and there is nothing wrong with that as a business model so long as we acknowledge the fact. The publisher takes the risks inherent in the manufacture, marketing and distribution of the books, discs or other physical media. In return, the author of the work receives payment in proportion to the revenues received. The law of copyright has proved its worth as a means to fund creative endeavour, so maybe it is time to stop talking about it as an alternative to the provision of charity for starving artists.

For viewers, there is little to differentiate between the digits arriving from Qriocity, Virgin Media or the BBC iPlayer and the downloadable files they discover through their online search engine. The introduction of the connected TV makes it harder still for consumers to tell what is legal and what is not. For every strategy designed to block unwanted content, a gap will appear somewhere else in the defences and the cost of keeping the enemy at bay will escalate, as Sony has found recently to its cost.

The solution is not ever-more complex copyright laws but the effective monetisation of audio-visual content on every device the consumer owns. That will require some fundamental changes to the way we think about copyright, which Hargreaves advocates without defining the solutions.

A merely modified copyright law will not ensure the continuing need to fund creative endeavour. No legal system can keep pace with the speed of innovation and without switching off the internet – which Egypt tried to do and failed – most of the population will continue to seek premium content from any convenient source.

Consumers pay the BBC, Sky, Virgin Media and others to deliver premium content to their TVs, smartphones and PCs. They might not be happy with how much it costs but they accept the need to recompense adequately the content creators, rights owners and distributors. In the UK currently, this direct relationship does not exist between consumers, the retailer and the music and video publishing industry.

When it launches later this year, UltraViolet will tie together physical and digital media in a way not possible before and make format shifting simple and “buy to own” a reality for the consumer who fears technological obsolescence. With its introduction will come new usage models that challenge existing legislation including the distribution of premium content free of charge, which may be unlocked and paid for at a time of the consumer’s choosing.

This model, or something like it, promises much more than continued opposition to change in the copyright law. 

Until there is a fundamental shift in attitudes, consumers will continue to find ways to take what they want online, from wherever they find it.