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A report for the UK government has advised against implementing a U.S.-style “fair use” copyright policy, which Google had lobbied for and many content owners had opposed. But it does suggest creating a “Digital Copyright Exchange” to make licensing of content easier. And it urges ministers to finally decriminalise consumer copying of legally-obtained digital content from one format to another.
The recommendations are made in the report, Digital Opportunity, which was commissioned from Prof. Ian Hargreaves by the UK government in November to advise it how UK’s current intellectual property regime might be impeding digital business development. Intellectual property minister Baroness Wilcox says: “we will be giving the review’s recommendations serious consideration and providing a full response soon.”
Google’s submission had argued: “The law must not create a culture of ‘permission first, innovation later’ for technology innovators.” But content owners had argued for specific exceptions to restrictions on re-use of material, rather than a blanket fair-use exception.
Disclosure: Hargreaves’ review panel consulted me informally during research.
The report is 130 pages, but here are the main recommendations and highlights…
- Create a Digital Copyright Exchange
- Enable automatic licensing of orphan works
- Decriminalise format shifting
- No U.S.-style Fair Use
- Back EU’s cross-border licensing drive
- Use EU copyright exceptions on format shifting, parody, non-commercial research, and library archiving.
- Build flexibility in to the system
Digital Copyright Exchange
- “Government (should) bring together rights holders and other business interests to create in the UK the world’s first Digital Copyright Exchange … a network of interoperable databases to provide a common platform for licensing transactions.”
- “This will make it easier for rights owners, small and large, to sell licences in their work and for others to buy them. It will make market transactions faster, more automated and cheaper. The result will be a UK market in digital copyright which is better informed and more readily capable of resolving disputes without costly litigation.”
- The Intellectual Property Office or Ofcom should oversee the exchange, which should provide linkages between the several existing licensing bodies as well as copyright holders and users. A chief should be in place by end of 2012.
- “The Government has a severely time limited opportunity to bring about in the UK the best copyright licensing system in the world.”
Automatic licensing of orphan works
- “(Government) should begin by legislating to release for use the vast treasure trove of copyright works which are effectively unavailable – “orphan works” – to which access is in practice barred because the copyright holder cannot be traced. This is a move with no economic downside.”
Finally legalising format-shifting
- “The UK has chosen not to exercise all of its rights under EU law to permit individuals to shift the format of a piece of music or video for personal use and to make use of copyright material in parody.” Format-shifting had also been advocated by the UK government’s last big IP review, by Andrew Gowers in 2006, but never implemented in law, and later rejected in the Digital Economy Bill.
- “The copyright regime cannot be considered fit for the digital age when millions of citizens are in daily breach of copyright, simply for shifting a piece of music or video from one device to another.
Backing EU IP harmonisation
- Hargreaves urges the UK to back European Commission efforts to make a single continental market for copyright licensing and digital content retail, something currently beset by fragmented, nationalistic structures.
- “Nor does the UK allow its great libraries to archive all digital copyright material, with the result that much of it is rotting away. Taking advantage of these 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.”
U.S.-style ‘Fair Use’ rejected
- “The economic benefits imputed to the availability of Fair Use in the US have sometimes been over stated … The success of high technology companies in Silicon Valley owes more to attitudes to business risk and investor culture, not to mention other complex issues of economic geography, than it does to the shape of IP law.”
- “We concluded that importing Fair Use wholesale was unlikely to be legally feasible in Europe and that the UK could achieve many of its benefits by taking up copyright exceptions already permitted under EU law and arguing for an additional exception, designed to enable EU copyright law to accommodate future technological change where it does not threaten copyright owners. This would permit copying where it does not trade on the underlying creative and expressive purpose on which traditional rights holders in music, publishing, film and television rely.”
IPO role beefed up
- “A new role for the Intellectual Property Office (IPO) in issuing formal opinions to help clarify the law where it is not understood or where new developments in technology and markets create fresh uncertainties.”
- “Measurable impacts (from piracy) are not as stark as is sometimes suggested … we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement. On copyright issues, lobbying on behalf of rights owners has been more persuasive to Ministers than economic impact assessment.”
- “Of the 54 recommendations advanced by Gowers, only 25 have been implemented.”