Dear Reader
This is a significant time for copyright.
Last week, as reported on IPKat and elsewhere, Google lost its appeal against Belgian ruling that blocked it from publishing links to local newspapers on its online news service. IPKat cited to the Bloomberg report, compiled by Stephanie Bodoni, that"The Court of Appeal in Brussels on May 5 upheld a 2007 lower court ruling that forced Google to remove links and snippets of articles from French- and German-language Belgian newspapers from Google.com and Google.be. Google, the owner of the world’s most-used search engine, faced a 25,000-euro ($36,300) daily fine for any delay in implementing the judgment." So life isn't getting any simpler for Google, and they have challenges in Germany and in Brussels in the field of anti-trust too.
Meanwhile, here in the UK, the Hargreaves Review on Intellectual Property, including copyright,nis due to report on its findings this week. It's already being heavily trailed in press - see today's FT, for example. Whilst Professor Hargreaves hasn't been issued with a red box, it's still going to be a 'Copyright Budget',
I will do a post later this week on the Hargreaves Report . My hope is that the message has got through that (I) the fundamentals of copyright are sound; (ii) some updating is definitelly needed in limited specific areas (e.g. 'orphan works' which needs an international solution - en route from the EU!) but (iii) the real challenge, and the real solution, lies in harnessing technology to streamline rights clearance. As my good friend Mark Bide puts it: "Rights Databases and Registries are central to buildingan integrated rights and transactional infrastructure." And the point is that creating this infrastructure - or, rather, linking together and making interoperable what already largely exists - does not require a change in the law.
I will base my checklist for scoring the Hargreaves Report on the criteria for change which I suggested in my Submission to the Hargreaves Review. So on the basis that I can't infringe my own copyright, I've reproduced a substantial extract if case you have the inclination and time to glance through it before Wedneday:
"First, we need to distinguish between the copyright system per se and the way it works in practice. We should not equate problems about the working of the system with the system itself. For example, improving the way permissions are managed can largely be solved within the existing framework.
Second, we should not ascribe to the copyright framework, problems or barriers to growth which are attributable to other factors such as lack of access to start-up capital, technical expertise or the absence of tax breaks.
Third, where there is a proven case for change to the copyright framework, we should make the minimum change needed to accomplish the objective.
Fourth, solutions should be appropriate and proportionate to the problem. For example, education and information provision are the right tools to use to remove confusion and uncertainty concerning copyright – for example, what can and can’t be taken without infringing copyright. In the case of certain barriers to growth, there are other legal tools available to remove them, such as competition law.
Fifth, let’s be careful not to introduce changes which solve an analogue problem which will disappear over time in the digital age. For example, any proposals to deal with ‘out of commerce’ works should recognise that as works become increasingly ‘born digital’, they will almost always be available in the digital store.
So let’s look at the case for legal change. There are instances where legislative intervention is needed. There is general consensus that the problem of ‘orphan works’ needs a legal solution, most appropriately at the EU level. The most recent statement on the subject was the Report of the ‘Comite des Sages’ published this month from the perspective of bringing Europe’s cultural heritage online.
There is also consensus that some of the proposals following the Gower Review need to see the light of legislative day in the UK, including updating exceptions for education to include distance learning (where no collective licence is available) and the extension of the exception for Libraries and Archives to sound recordings and films. We may need to re-visit the issue of ‘format shifting’ as proposed by Gowers, but only insofar as licensing solutions don’t deal with the issue.
The Call For Evidence mentions investigating the benefits of “fair use” exception to copyright. I have some real concerns about that:-
- First, the differences between the US ‘fair use’ exception and the various exceptions in UK copyright law are more apparent than real – compare US cases on ‘fair use’ for commentary and criticism with UK cases on the ‘fair dealing’ exception for criticism and review.
- Second, a lot of emphasis is placed on the concept of ‘transformational use’ developed by the US Supreme Court in a line of cases on fair use. We don’t have time for a detailed discussion but it would be misleading to represent it as a simple facilitator for the creation of new works derived from existing ones.
- Third, we also need to recognise that introducing a general exception of this type into European copyright law would require deep pockets to fund litigation over a number of years to develop the case law to tell us the scope of any such new exception to copyright law.
I would like to end by making three points:-
First, I would repeat that there is no room for complacency. It is no longer acceptable for rights and permissions to be locked inside old paper contracts stored in filing cabinets. But much of that change we need is non-legislative. In particular, I hope Professor Hargreaves’ Review will focus on the need to encourage the development and take-up of technology to build an integrated rights and transactional infrastructure with machine readable permissions and licences which also accommodate and respect legal exceptions. The core elements are standards-based machine readable expressions (such as Creative Commons, ACAP and ONIX), Online registries, including the ARROW project and the Book Rights Registry, and persistent content identifiers such as ISBN, ISWC and DOI and then linking all of this to payment solutions. And let’s be clear. I am not talking here about ‘DRM’ in the sense of technical protection measures. I am talking about an infrastructure which makes it easy to ‘click, find, use and pay’. If this infrastructure can become as ubiquitous as broadband itself, everyone in the ‘copyright chain’ will benefit – creators, producers, distributors, intermediaries and, of course, the citizen and consumer of digital content and services.
Second, all of this takes investment. Weak IP laws and weak enforcement substantially reduce the case for investment. The Commission’s Report on the Enforcement Directive published in December last year contains some important points about the problems of enforcing IP rights online in the face of the economic damage caused by piracy.
Finally, discussion and debate about copyright can easily become polarised. And that’s something we can all be guilty of. So let’s take as our starting point that we are a ‘community of interests’, encompassing traditional actors in on the copyright stage and new players too, even if those interests sometimes diverge. Working together, we can realise the commercial and societal benefits of a rich and diverse variety of professionally produced and amateur created content.”
Have a good week
Laurie Kaye
Comments