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.

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