Hargreaves sallies forth

So, it’s out. The Hargreaves review has published its findings today. Unsurprisingly most of the leaks were well informed and it roughly says what I thought.

So far it seems to have achieved the remarkable feat of pleasing both the Cory Doctorows of this world (a passionate advocate of liberalising copyright) as well as, from what I’m hearing, many media companies and rightsholder groups.

Doubtless they’ll all come out with public positions soon but if it has managed to avoid polarising people that’s pretty impressive.

Things I like: government to stimulate, facilitate and help fund creation of a “Copyright Exchange” but not own or run it. The fundamental proposal is about seeing and realising the potential for growth. The idea of introducing US-style Fair Use into UK law also rejected, but with an interesting analysis of the arguments to explain the decision.

Things I like less: the idea that we need more exceptions more quickly. I just disagree with that. I think exceptions should serve the public good when the market fails to do so – to make a judgement about this the market has to have a chance to succeed. The examples of some (but not all) digital products coming with a “format shifting” licence – I think this is referring to things like DVDs which have a copy for your iPod on them, and some (but not all) ebooks coming with the ability to lend them to people is cited as a reason for more exceptions. I look at these things and see an industry in transition, moving to recognise the needs of the market. It might be confusing, but it’s also in flux. Exceptions would not help.

All in all, though, at first glance it’s a great piece of work. The omens were not good: the manner of the announcement, the incredibly tight timescales, the passionate and polarised views. I think it might be the first copyright review (the first of many) which actually achieves something.

Comments

4 Comments so far. Leave a comment below.
  1. David,

    I’d be interested to know what you think of Hargreaves’s comments on ‘parody’. They look pretty superficial to me. It consists essentially of one poorly analysed example (‘Newport State of Mind’) where Hargreaves simply assumes that the application of copyright law is unreasonable. One could certainly argue to the contrary. The ‘Newport’ spoof video consists of a straight copy of the music of ‘Empire State of Mind’, with new lyrics featuring Newport instead of New York. Granted, it’s just a bit of fun on YouTube, but suppose that it were released as a commercial recording and sold substantial numbers of copies. Shouldn’t at least the composers of the music, if not the original lyrics, then be entitled to royalties?

  2. In general I think that as technology and markets develop we should need fewer, not more, exceptions. In the case of that video, and more broadly, the question is why it wasn’t possible to obtain the rights?

    If it was because it wasn’t possible to reach agreement on commercial terms, then future technology (perhaps the Digital Copyright Exchange) should solve that in ways I have discussed before.

    If it was because the rights holders objected to it then… well why shouldn’t they? I am not personally convinced that parody is some sort of sacred right, and my suspicion is that in most cases where terms can be reached, rightsholders should have enough of a sense of humour to take the joke. But I don’t see why they should be forced to.

    There’s a thin line between exceptions and loopholes. The whole Fair Use debate in the USA is undermined by people claiming Fair Use as an excuse for doing something commercially advantageous to them. The bar for exceptions should be set high, and only where the interests of society clearly exceed those of rightholders should they be considered.

    Not being able to pass on a good joke is a bit disappointing but hardly a major cultural issue, in my view. That said, putting it there in the report made a lot of people very happy, and is one of the reasons it seems to have had a broadly positive reception from many quarters. The real positive impact of the report lies elsewhere and is far more valuable.

    • You said:
      “There’s a thin line between exceptions and loopholes. The whole Fair Use debate in the USA is undermined by people claiming Fair Use as an excuse for doing something commercially advantageous to them. The bar for exceptions should be set high, and only where the interests of society clearly exceed those of rightholders should they be considered.”

      Wouldn’t this simply be solved by stipulating that most types of “fair use” be strictly non-commerical in nature? (Obviously neglecting things like, for the purposes of review).

      Of course you run into the misuse of parody as you say- if “parody” treats someone’s content in a way they find blatantly objectionable (same could go for other sorts of fair use), then some sort of right of objection should exist.

  3. What does non-commercial mean? Doesn’t make money? Isn’t intended to make money? Doesn’t damage the commercial interests of anyone? What about things which are, by some definition, non-commercial but offensive to the copyright owner?

    I think “non-commercial” is almost completely meaningless. As soon as you have a law which is so ill-defined inevitably it invites people to interpret it to suit their own particular needs (I could make a pretty decent case that newspapers are non-commercial, for example) and it ends up being endlessly litigated.

    In short I think, I’m afraid, it’s an entirely unhelpful way to define anything. I think exceptions should be clearly and tightly defined, and the case for new ones made as part of a proper debate

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: