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Month April 2013

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D-ERR. UK copyright owners no longer control the right to copy their work

Apr 29, 13 9:50 PM

The UK abolished copyright today. At least, they abolished a large part of the “framework” which supports it by doing away with the requirement, in many cases, to have permission from the owner before you use someone’s work. Now, if you don’t know who the owner is, you don’t have to ask them.*

The UK government, or more particularly people within the Intellectual Property Office, don’t see copyright as a “right”. They see it as “a framework“. Nothing fundamental, just a bit of meccano to be fiddled with and re-configured at will.

So they have decided to remove the foundations the framework stands on,  passing a piece of legislation, the Enterprise and Regulatory Reform Act (ERR), which includes a provision to allow politicians to give away your work at a whim. If your work is “orphan” (in other words if it’s not easy to track you down without any clues other than your actual work – and if you have ever tried this with a random photo you’ll know how hard it is) then other people can use it on terms and at prices set by a quango.

If these were “rights” they were messing about with, it would feel wrong. but since they’re only tinkering with a “framework” it’s OK.

“The powers do not remove copyright for photographs or any other works subject to copyright”, says a spokeswoman for the Department of Business, Innovation and Skills in a rather feeble attempt to make it sound innocuous.

She omits to point out that the powers do remove the right of the copyright owner to decide whether or not they want to licence their work, negotiate the terms on which they want to licence it, the price, the credit and the moral rights. In other words most of the “acts restricted by copyright”, the ones which are the “exclusive right” of the copyright owner (in the words of the Copyright Act), are now no longer in the hands of the copyright owner, but someone else.

Maybe the new powers don’t technically remove copyright from the work, but they certainly remove it from the copyright owner.

“Nor do they allow anyone to use a copyright work without permission and free of charge”, she continues. But someone other than the owner, who has no ideal who the owner is or whether they have any views on the matter, will giving permission and setting the price. Copyright – the “exclusive right” to decide who copies and on what terms – has been abolished for the owner of the work.

The right to say no is an important one. The right to set prices, to price yourself out of the market, or to be the cheapest, or simply not be in the market in the first place all matter.

The fact that someone wants to use your work doesn’t mean you have to let them – and it used to be your exclusive right to decide. If you have a desire to keep work private and restricted, or only licenced on carefully controlled terms, you can and many do. Now if you try that you might just be decreasing the chances of a “diligent search” tracking you down and so decreasing your chances of escaping this odious scheme. If your work is hard to find it becomes subject to compulsory licensing with no appeal and no compensation beyond whatever price a stranger decides to put on your work.

Just as bad as the legislation is the process by which it came about. There is no credible evidence or research which makes a compelling case for it producing any benefits at all. Opposition has been ignored, debate kept to a minimum.

It has been done in the form of “enabling legislation”, stuck into an entirely irrelevant Act, which transfers the making of specific rules from Parliament to a minister. This is frequently justified as allowing quick action to be taken in a fast-moving world. In this case it looks a lot more like a way to avoid discussion and give minsters a huge honeypot of free goodies to dish out to those upon whom they wish to bestow great gifts (in this case the beneficiaries – and the wealth we are passing to them – almost all reside in Silicon Valley).

Law-making based on whims and completely imagined, speculative benefits is best avoided, all the more so when the whimsical Utopia you hope to create comes at the price of an established and valuable contributor – professional creativity and the media – to the economy and culture.

Stupider still when the alternative future, in which creators benefit from increased competitiveness and a growing market for their work, has not had a chance to emerge thanks to piracy and some already demonstrably ill-conceived legislation which had already weakened the “framework” on which creativity depends.

Absurd when at the same time as you’re creating this giant gaping hole in your creative economy, you’re engaged in another process to solve the underlying problem which, if successful, would massively reduce or eliminate the perceived need for such drastic and sweeping change.

If you’re a creator, get your stuff off the internet. And best find another job too, since yours just became a whole lot more perilous.

*this is a slight oversimplification but not much. When the final text of the Act is published I’ll add it here.

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Who’d have thought China would be the defenders of copyright?

Apr 26, 13 10:18 AM

When I was a nipper, trying to licence rights in various things, it was widely reckoned that it wasn’t worth trying to do business in China because they pretty much ignored copyright there. If they wanted to use something they just did, without asking first.

Whether that was an unfair generalisation or not, the same cannot be said now. Here’s news of a judgement in China against Apple.

In short it says that Apple is responsible for third parties uploading infringing content into Apple’s systems. In other words, the basic principle of copyright law – that you need permission before you use someone else’s stuff – is being upheld in China, and just pointing the finger at someone else doesn’t get you off the hook.

That might sound like common sense but that same principle has been all but eliminated on the internet in the USA and Europe (and so most of the world) by ill-conceived legislation and an avalanche of business models which aim to enrich businesses by exploiting other peoples work without paying.

How different the internet would be now if the common-sense of copyright still applied everywhere.

How ironic that China, not the USA and Europe, is now the state upholding the basic principles which underly professional creativity.

Perhaps they understand what the USA and Europe seem not to – that without economic incentives for creators, creativity and the creative economy cannot thrive and no amount of tech startups can compensate for that.

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Laurie Kaye on the Supreme Court’s weird NLA judgement

Apr 25, 13 1:14 PM

The always-wise Laurie Kaye has some useful memories which concur with mine. His take on the Supreme Court’s recent judgement about the NLA is useful reading. Lord Sumption should give it a squizz.

As I recall, the majority of the discussions around Article 5.1 concerned these kinds of temporary copies made by the Telcos’ networks and machines. True, the reference to “lawful use” pointed to other, “off the network” technical, temporary copies such as cached copies in a computer’s memory which were incidental to some other “lawful use” e.g. prior to a download. But this was not the central point and the notion of “lawful use” was seen in the context of technical copies which happened in the course of some other licensed activity.

Here.

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Strange things happen in courts

Apr 17, 13 4:22 PM

This is odd.

The Supreme Court has handed down its judgement in the endless NLA case, and it’s a little strange.

They have also referred the case on to the European Court of Justice, to ensure that the agony is prolonged a little longer.

Among the many oddities is that this judgement, weird though it is, has little bearing on the original case. The big issues, already decided, have not been challenged. What the Supreme Court was left with was a tiny thin sliver of an issue, a hair already split so finely it seemed incapable of any further subdivision.

As it turns out that was wrong, and so as well as reversing the judgement of the lower courts on this issue (and in my view also the intent of the law) it has opened up a new, gaping, hole in the governance of the internet and the ability for copyright law to have meaningful effect online.

The question, focuses on an exception to copyright, created in the European Copyright Directive, which authorises certain kinds of “temporary copies” which are made as content travels across the internet. I have written about it before, so for background suggest you read that piece.

The exception was created to avoid a situation in which the copies made, for example, in a router as it passes data from one machine to another, were infringing and therefore became the focus of legal actions or problems. The narrow nature of the exception can be seen in its wording:

1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.

Not many things pass all those tests. See my previous article for more thoughts on that.

Jonathan Sumption, the judge who wrote the ruling, thinks otherwise.

Many lawyers have been paid many pounds to argue about the assertions and interpretations he makes, so suffice to say for now that they’re not accepted universally, least of all by me in the context of the conversations I was involved with when article 5.1 was being drafted and debated. I will return to them in more detail later.

Perhaps his most telling comment is in his clause 36. “This seems an unacceptable result”, he says, in reference to the possibility that the law makes certain things illegal. It suggests he has swallowed the nonsensical and scare-mongering “browsing is illegal” rhetoric whole. But if judgements are to be made, in part, based on what a judge thinks “seems acceptable” in the law, then surely that judge could find a better career in politics, writing and passing laws.

Lord Sumption has constructed his own convoluted route through the arguments and case law, his own analysis of some of the technical matters and arrived at a startling and – to me – wrong-headed and perverse conclusion that article 5.1 offers few practical restraints or limits to the consumption and use of infringing material online.

The law is written to say that in limited circumstances a very tiny exception to copyright law is created. Sumption’s judgement broadens those circumstances to include almost any activity by end-users on the internet.

My immediate question is what, in that case, he thinks all those words and conditions in 5.1 actually restrict? If the article’s purpose is not the one that is described in its recitals, and apparently made explicit in its wording, and debated endlessly prior to its introduction, what is its practical effect and purpose?

The usual disclosure, I am a former Chairman of the NLA

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