Copyright Food For Thought

Michael Hedges May 20, 2011 - Follow on Twitter

Attempts at reconciling the ownership rights of copyright and patent holders with the digital present have the attention of the best and brightest legal minds. Unleashing a torrent of digital economic growth is the general intent. Progress over the last decade has been nil.

Not lost on anybody with interests in intellectual property rights is the distinct advantage for digital developers under Unites States law. For a generation smart people and smart money have flowed into the Silicon Valley purlieus to invent and create. The result has been legendary – Google, Apple, Yahoo!, Facebook, Adobe, Cisco, Intel, eBay, AMD, HP and many more – and worldwide.

Virtually every government and industry leader recognizes the digital economy as a primary driver of economic growth. Plans and projects to expand digital development are everywhere.

At the same time, intellectual property rights law in step with the times continues to hinder. The World Intellectual Property Organization (WIPO) Copyright Treaty, which protected computer programs and databases, was ratified in 1996. Mark Zuckerberg (Facebook) was then 12 years old.

Bringing copyright and intellectual property rights law up to speed is a heady challenge. UK Prime Minister David Cameron mandated Cardiff University Digital Economy professor and former newspaper editor Ian Hargreaves to review “barriers to new internet-based business models” in the law. That report, released this week (May 18) and titled “Digital Opportunity, A review of intellectual property and growth,” makes clear the difficulties in bridging the gap between digital development and entrenched stakeholders.

Copyright law in the UK “is falling behind what is needed,” observed Professor Hargreaves after five months of study. “The UK has failed to make the changes needed to modernize copyright law, for which we will pay an increasing economic price as we make our way into the third decade of the commercial internet.”

The recommendations ranged from the obvious – decriminalizing private copying – to the expected – engaging a “copyright czar.”  Currently in the UK a private individual copying material from one digital device to another – “format shifting” - is technically breaking the law. It’s never enforced and in much of Europe it isn’t even illegal. Professor Hargreaves noted without a smirk that industry provided “evidence” of damage caused by internet piracy is sorely lacking.

A Digital Copyright Exchange should be developed, said the report, to make buying and selling rights as easy as eBay. Rules on “orphan works” should be loosened so digital developers can use some material for rights holders can’t be identified. This would open a vault of archival documents, art, music, photos and video to a wide range of potential developers. Academics and students should be able to copy material published in academic journals.

Professor Hargreaves rejected any move toward a “fair use” provision in UK copyright law. Google wouldn’t be Google, says Google, without the provision in US law that allows the courts to determine, on a case-by-case basis, actual damages from alleged infringement. Rupert Murdoch wants money from Google whenever the search engine indexes something from one of his tabloids. Hargreaves also recommended lifting restrictions on parodies of copyright material.

Publishers and the music industry were generally pleased by Professor Hargreaves’ report.  “We support the recommendation that Government has a role in sponsoring the steps needed for the market to establish itself,” said European Publishers Council (EPC) Executive Director Angela Mills Wade in a statement. “What is crucial is something that can be easily adopted by other countries, that will scale elegantly and that can be defined and developed by the market, not by regulators.” (See full EPC statement here)

Five years ago the Gowers Review of UK copyright law made many of the same recommendations and had no impact on lawmakers. IPR lawyers continue to roll their eyes because, in the global digital marketplace, trading partners make a difference. “Britain’s IP laws are so dependent on myriad international and European treaties that unilateral reform of our copyright and patent systems is impossible to achieve,” said IPR specialist Simon Mounteney of Marks & Clerk Solicitors.”Real reform will need to be pursued at a European or international level, and many of the proposed solutions will need significant attention to detail in order to become viable.”

Attempts within the European Commission to streamline music rights have failed against entrenched opposition by national rights collecting societies. Next week EC Internal Markets Commissioner Michel Barnier should release (May 24) an intellectual property strategy draft. Its focus will be on a judicial solution to copyright infringement, similar to Spain’s Sinde Law passed earlier this year, which the European Court of Justice is reviewing. Commissioner Barnier’s report will also tackle the weighty problem of food as intellectual property.

See also in ftm Knowledge

Intellectual Property Rights - Yours, Mine and Ours

Every content creator and user has a vested interest in intellectual property rights, the rules meant to set a course for fair distribution of art, music, video and the written word. Agreement on those rules is not absolute. This ftm Knowledge file explores what's yours, mine and ours. 42 pages PDF (March 2011)

Order here

Media Laws – New and Revised

Policy makers and politicians are writing and rewiting media laws and rules at a breakneck pace. As broadcasters and publishers grapple with changes brought about by digital development, new business models and financial distress, the new media is feeling rules tightening around it. From licensing and public broadcasting to privacy, piracy and copyright this ftm Knowledge file Media Laws – New and Revised summarizes new laws and revised laws from a media perspective. 135 pages PDF (December 2010)

Order here