Harkening to Hargreaves: UK Copyright Consultation

The road to copyright reform is a long one, full of false starts and diversions. Those with good memories may recall the Gowers Review from 2006, which made lots of sensible suggestions, all of which were promptly ignored by the UK government. ...


The road to copyright reform is a long one, full of false starts and diversions. Those with good memories may recall the Gowers Review from 2006, which made lots of sensible suggestions, all of which were promptly ignored by the UK government. So following the good work of the Hargreaves Report, the very real risk was that it, too, would be simply filed and forgotten.

Happily, that seems not to be the case. The UK government has released its response to the report in the form of yet another consultation on copyright [.pdf]. The press release has a good summary of what is a rather large document (170 pages, although only 130 are actually the government's response):

The proposals include:

Creating an exception to allow limited acts of private copying – for example making it legal to copy a CD to an MP3 player. This move will bring copyright law into line with modern technology and the reasonable expectations of consumers.

Widening the exception for non-commercial research to allow data mining, enabling researchers to achieve new medical and scientific advances from existing research. Currently researchers cannot use some new computer techniques to read data from journal articles which they have already paid to access without specific permission from the copyright owners of each article.

Introducing an exception for parody and pastiche, to give comedians and other people the creative freedom to parody someone else's work without seeking permission from the copyright holder.

Establishing licensing and clearance procedures for ‘orphan works' (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes.

Introducing provision for voluntary extended collective licensing schemes, which would make it simpler to get permission to use copyrighted works and help ensure rights owners are paid. These schemes would allow authorised collecting societies to license on behalf of all rights holders in a sector (except for those who choose to opt out).

Modernising other exceptions to copyright including those for education, quotation, and people with disabilities.

I've only just started reading it, but first impressions are good. As the summary above indicates, most of the key ideas in the Hargreaves Report have been included in the consultation. Just as importantly, the need for evidence-based policy making has been implicitly accepted by virtue of the fact that there is a separate document entitled "open and transparent evidence guidance." [.pdf]:

In its response to the Hargreaves Review, the Intellectual Property Office (IPO)
committed to publishing guidance on standards of evidence used in the development
of policy. This document sets out that guidance. Evidence of course comes in many
forms, and this is aimed at reports and research done to inform policy-makers.

The Hargreaves Review's observations on the standing of evidence-based policy
applied to both public and private bodies. The standards set out in this guidance are
what we aspire to from ourselves and from those who submit evidence to us – and
where those standards are met, the evidence will be considered robust and assured
consideration. Although we want to set this bar for reports and commissioned work,
we will continue to accept evidence that doesn't meet these standards. We are
aware that smaller businesses in particular face challenges in assembling evidence
and we will assess their contributions sympathetically; we further want to emphasise
that individual experience and ideas are always welcome in the evidence debate.

There is much work on what defines evidence, and academic journals have long
set down criteria for submitting scholarly papers and evidence. The IPO has drawn
on this to set out the criteria by which it would consider a submission that it could use
as robust evidence for policy making.

Our aspiration is that evidence used to inform public policy, or intended to inform
government, meets the following three criteria: that it be clear, verifiable and able to be peer-reviewed. This is not an exhaustive list of how to overcome every eventuality, but a guide to what constitutes good evidence and what that means.

This statement is hugely significant, and exactly what I hoped might happen. It represents a break with the previous dogma-based approach, and the existence of the "open and transparent evidence guidance" document is a real victory for the Hargreaves team, whatever else comes out of the consultation.

For rest assured that the final result of all these reports and consultations is by no means certain. The copyright industries will be fighting tooth and nail against many of the proposals to update copyright for the digital age contained in the UK government's consultation. They had hoped to kill these ideas off before Hargreaves reported, and having failed to do that, they will certainly re-double their efforts to kill them off now.

The magnitude of the threat is evident from the fact that the list of "consultees" (yuk – where did that get that monstrosity from?) includes probably a hundred organisations from the copyright industries and their lobbying organisations. The number of bodies standing up for the public and its interests are well under ten.

And yet copyright is supposed to be a fair deal between copyright holders and copyright users: it certainly isn't currently, and the consultation's proposals go some way to undoing the huge distortions that have been introduced into copyright over the years, either intentionally or unintentionally as a result of the law not keeping up with the knock-on effects of technology.

That imbalance of power is one very good reason why it is important for as many people and companies as possible to respond to this consultation. Once I have finished digesting the various documents - there are seventeen of them in all – I'll report back here, along with my own submission. At least we have something to read over the holiday break...

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