UK Gov's Latest Move on Copyright: Exactly Wrong

Remember the Digital Economy Act? Surely one of the worst pieces of UK legislation passed - or rather, rammed through - in recent years, as readers may recall. This was inspired (if that's the right word) by the French Hadopi scheme brought in...

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Remember the Digital Economy Act? Surely one of the worst pieces of UK legislation passed – or rather, rammed through – in recent years, as readers may recall. This was inspired (if that's the right word) by the French Hadopi scheme brought in by Nicolas Sarkozy, whereby people were threatened with being disconnected from the Internet if they were accused of unauthorised sharing of digital files.

Like the French scheme, the Digital Economy Act is a travesty of justice since it requires only accusations, not proof, thus reversing a fundamental principle of English law: innocent until proven guitly. Preserving an intellectual monopoly, it seems, is more important than defending basic human rights.

As you may have noticed, things have gone pretty quiet here, but the law is still in fact grinding through the government machinery. James Firth had a helpful blog post a few months back that explained what was happening:

Two Statutory Instruments were expected to flesh-out how the copyright infringement warning letters will be dispatched, paid for and appealed: a so-called Initial Obligations Code and a shorter Cost Sharing Order defining how the cost of scheme will be split between copyright owners and internet service providers.

Two attempts have so-far been made to enact the shorter Cost Sharing Order, but even this relatively simple piece of legislation only got as far as the notification phase, where other EC member states are notified of draft changes to policy potentially affecting cross-border trade

He then goes on to speculate when the first warning letters might be sent out, and comes up with an estimate of anything from 2015 to 2017.

However, there has been an important development last week that could transform the situation:

The Prime Minister has appointed Mike Weatherley MP as his adviser on intellectual property, with a focus on intellectual property enforcement issues relating to the creative industries.

Mike Weatherley has focused on intellectual property and copyright issues as an MP and has experience of working in the music industry.

He will report to the Prime Minister and relevant ministers.

The role is unpaid.

Weatherley's Web site has a few more details:

Mike comes from a strong professional background in Intellectual Property for both music and film. Before his election to Parliament in 2010, Mike was the Vice President (Europe) for the Motion Picture Licensing Company and previously worked for music industry giant Pete Waterman.

As an MP, Mike has pushed hard to raise awareness of Intellectual Property Rights amongst his colleagues. Mike's Rock the House initiative, which is now Parliament's largest competition, is a popular vehicle which achieved this aim.

...

Commenting, Mike said: "I am honoured to be been appointed as the Prime Minister's adviser on Intellectual Property. The creative industries are incredibly important to Britain's economy so it is only right that the Government focuses on enforcement issues. I look forward to working with the Prime Minster and my ministerial colleagues on addressing the challenges that face the film and music industries."

From the lack of any mention of balance or proportionality, it's clear that this initiative will be a totally biased in favour of the copyright industries, with little, if any consideration given to what the public thinks. That's totally in keeping with the spirit of the Digital Economy Act, which took no notice whatsoever about the feelings – never mind the facts – expressed by many members of the public during the discussions around it. Instead, it was steam-rollered through in the most arrogant and high-handed manner imaginable.

That wrong-headed and unbending attitude is emphasised by the fact that in the press release from Number 10 we read that with this new appointment there will be:

a focus on intellectual property enforcement issues

while Weatherley himself says:

it is only right that the Government focuses on enforcement issues

There is no cognisance whatsoever that enforcement is not the only way of supporting the creative industries. Indeed, in the digital realm, it is arguably the worst, because it focuses on punishing people who make unauthorised copies, and yet as the UK government's own research shows, these are often precisely the ones who spend more:

12% of all Internet users accessed both legal and illegal copies... Moreover, it turns out that this particular group actually spends far more than people who only buy illegal or legal copies. Here are the figures for the main categories of content:

"In terms of the three ‘legality' groups discussed earlier, those who accessed a mix of legal and illegal music spent the most on music (£77.24), with ‘100% illegal' (£13.80) the least. Those who claimed all their music was obtained legally were between these values, at £43.31.

…

As with music, those who accessed a mixture of legal and illegal films online claimed to spend the most on the category as a whole (£56.11), with the ‘100% illegal' group spending the least (£28.25). This compared to £35.57 for the ‘100% legal group'.

…

Those who accessed a mixture of legal and illegal online TV programmes spent the most on the category as a whole (£25.69), with 100% illegal spending the least (£3.51). The 100% legal group sat in between with £8.28"

As I pointed out last year, that is consistent with a growing body of evidence that people who download unauthorised copies spend more than those who only buy authorised versions. That means a rational approach based no economics not emotions, would be to encourage digital sharing, not punish it.

But alongside a general concern about this arrogance and indifference to what the electorate might think about copyright issues, there's a specific concern here, I think. As I mentioned, the Digital Economy Act has been going nowhere fast, but a fear has to be that Weatherley will seek to introduce the three strikes approach sooner, rather than later.

But before he does so, he would do well to read an important new piece of research from the Australian scholar Rebecca Giblin, entitled, "Evaluating Graduated Response". Here's the summary:

It has been more than three years since the first countries began implementing ‘graduated responses', requiring ISPs to take a range of measures to police their users' copyright infringements. Graduated responses now exist in a range of forms in seven jurisdictions. Right-holders describe them as ‘successful' and ‘effective' and are agitating for their further international roll-out. But what is the evidence in support of these claims?

After providing a detailed snapshot of the structure and application of graduated response schemes in France, New Zealand, Taiwan, South Korea, the U.K., Ireland and the U.S., the paper synthesizes the available evidence regarding the efficacy of the various arrangements, and then evaluates the extent to which they are actually achieving the copyright law's aims. Of course, as the work acknowledges, it is impossible to identify any one unifying target or rationale. Accordingly, the paper evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:

1. To what extent does graduated response reduce infringement?
2. To what extent does graduated response maximize authorized uses?
3. To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?

The analysis demonstrates that, judged against these measures, there is little to no evidence that that graduated responses are either ‘successful' or ‘effective'. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.

I recommend reading the full paper, which can be freely downloaded. It provides a wealth of details about how the various "three strikes" schemes have been set up, and reviews all the available evidence for their success in achieving the three aims given above. It concludes with the following remarks:

There is a lot of good news in content markets worldwide. IFPI recently reported that the global music industry "has achieved its best year-on-year performance since 1998." The movie industry has broken its record for worldwide box office receipts for the last seven years straight. A recent study found copyright-intensive industries to be significantly more profitable than their equivalents in the construction, transportation, mining and metals sectors. And there's growing evidence that new business models based on providing reasonable access to legitimate content are both reducing infringement and substantially increasing legitimate markets. However, there is no evidence that any of these outcomes have been caused by the introduction of graduated responses.

That is, not only have the "three strike" schemes failed – France has just suspended the one and only disconnection imposed on someone who allegedly downloaded files illegally – but they are unnecessary. That's because contrary to the wails of despair from its highly-paid executives, the world of copyright is flourishing as never before, as two studies from Techdirt (disclosure: I write for this title) demonstrate using only official figures from government surveys and the industry itself.

Appointing someone who can help to boost the creative industries in this country is a wonderful idea; appointing what Cory Doctorow rightly dubs a "Witchfinder General for copyright" who will focus instead on "enforcement" is exactly wrong.

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