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Rebooting copyright (blog)

Ah hello hello hello. Long time no, um, blog.

I’ve been busy going back to first principles and working out how we can adapt to a world in which the failure of copyright seems to be collapsing the media ever more quickly.

I’m still obsessive about copyright, of course, but I have begun to wonder if we need to focus our attention in a different direction.

Getting right to the nub of it, the central purpose of copyright is to enable creators to benefit from their work. It has lots of surrounding detail but that core function is critical.

Critical and no longer reliable.

So I have paused, for a while, my focus on the legal and regulatory cause of the malaise. Coming up with solutions which work, which I have helped with, can’t solve anything as long as progress is a political rather than practical process.

So I have been focusing on the practical. What can be done, right now, without the need for any political involvement at all?

Not just conceptualising it, but designing it. Not just designing it but building it.

It’s built. It’s about to launch. It makes, I hope you will think, perfect sense. And it changes everything, without depending on the politicians changing anything.

So I’m going to start writing here and elsewhere again, to explain some of the thinking which has led to Agate. Keep an eye on where a new site will be launched soon, and a product soon afterwards.

Permissions, babies and bathwater

A few months ago I started seeing this when I went to Google sites…


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Kind of funny, the privacy reminder. I’m guessing most people don’t see this because most people are logged in to Google most of the time and so have accepted their terms explicitly when they log in. But I’m not. As you can see I did a bit of investigating, and about a week later the message changed…


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I’m actually banned from using Google unless I accept their terms. I still don’t fancy this so it has given me an incentive to try out other search providers and – guess what – I get along fine. Great.

But it’s a bit more annoying than that because sometimes other people use Google to host things (YouTube videos, maps, documents etc) and so I’m not really using Google when I want to look at those things, Google just happens to be hosting. The price for me to watch the video, view the document, see the map is to make an agreement with Google to collect information about me. A quick look at their privacy policy confirms this is quite a long list of things they want permission to collect.

So… I can work around that if I try – “incognito” browser window (I get the “privacy reminder” message, still, but I’m not blocked), different computer, etc. But it’s annoying.

But look at this:


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And this


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Really strange. My browser can’t connect to Google sites at all. Now perhaps this was some weird technical thing – but the internet was working fine for other sites (you can see that the second one is a YouTube video embedded in a Bing search result) and I didn’t get the same error in other browsers.

So I can’t help wondering if Google’s servers are now refusing to talk to me at all. Sent my computer to Coventry. Pretending not to be there.

Whether or not that’s what happened it makes me think about the whole issue of permission, Google’s insistence that users must explcitly agree to give them data as a condition of being able to use their service brings the whole issue of “free” into clear sight.

Google isn’t free. They require quite a lot in return for being able to use their services. A quick summary from their privacy policy:

  • Information you give them such as “name, email address, telephone number or credit card to store with your account… photo”
  • Information they just gather from your machine such as device information – “hardware model, operating system version, unique device identifiers, and mobile network information including phone number”
  • Usage information such as “details of how you used our service, such as your search queries; telephony log information like your phone number, calling-party number, forwarding numbers, time and date of calls, duration of calls, SMS routing information and types of calls; Internet protocol address; device event information such as crashes, system activity, hardware settings, browser type, browser language, the date and time of your request and referral URL; cookies that may uniquely identify your browser or your Google Account”
  • Location information

And so on. Lots of stuff you have to give them before they’ll let you use their service. And they use it for a pretty broad range of things, also explained (although not, in my view, very clearly) in their privacy policy.

None of this is a criticism of Google. I think this is rather great, actually. I like that the deal is being made clear – at least to people who aren’t logged into Google, and that they can make their own choice about whether to click the “accept” button.

But it does highlight the issue. Permission matters – and not just in copyright.

It highlights another issue too which I alluded to above. It’s all very well asking me to opt in as a condition of using Google’s services, and all very well for me to decide not to and live without them if I want.

But what about when I’m NOT using Google’s services? I’m using someone else’s and it just so happens that THEY have decided to use Google to help?

Look at this email I got today from a company called Brewbot who make a cool device I will probably never own which brews beer for lazy people like me.


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I’m a sucker for a chance to win some swag, so I clicked the link to their survey and this is what I got…


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It’s a Google doc and it doesn’t work for me. It does if I use another browser, or an incognito window, but in my normal browser I get this inability to connect to Google. Whether or not this is related to the privacy policy issue I don’t know but there does seem to be a pattern here.

So Brewbot, it turns out, seem to have been unwittingly recruited as a data gatherer for Google. Before I can offer my survey results to Brewbot I have to agree to silently give Google the long list of stuff I described above.

Or, to look at it another way, companies using Google to host their surveys, documents, videos, whatever, are actually only able to offer those things to opted-in Google users. Not to everyone. As long as Google remains ubiquitous perhaps the distinction isn’t obvious, but who is aware of it?

This seems dysfunctional to me, and unfair. It seems a high price to pay, for users and for companies who are using Google’s services (and may well be paying for them) for reasons that are nothing to do with Google’s core consumer services.

At its heart it highlights the conundrum which is central to so many of the issues which copyright people – as well as the internet at large – need to sort out. This silent, unknowing, pervasive process which takes the place of permission and transparency is not, in the end, serving the broad interests of the users of the internet.

I’m unusual in not having accepted Google’s terms, which means I am also unusual in seeing these messages which make what’s going on slightly more explicit to me.

But isn’t this an interesting perspective from which to consider the question of price and value on the internet. While money often doesn’t change hands, rendering lots of internet services nominally “free”, lots of other valuable stuff is still given in return – and if it’s not, the service is withdrawn.

At the heart of it all, value is being exchanged for permission. The same thing that happens in the copyright world. It needs to be done better.

Ah… there I am

What’s the word for hibernating in summer? And winter? And then summer again?

That’s what the blog has been doing while I have been distracted. So I have been seeing issues and debates flying by and left them unremarked on (by me) partly because it’s busy work, this Copyright Hub thing, and partly because I have been in the rather serene position of thinking about copyright not from the point of view of a particular person or industry but – as far as I can – from the point of view of everyone.

In the process some ideas have been emerging and coming to the fore which I have become increasingly interested in writing down and articulating properly. It seems that the debate about copyright is constantly being re-opened all over the world and it always seems to start with something which claims to be first principles. The debate which ensues is often familiar and often, so my mind, misses the point.

So I am going to try to write some things down, I am going to try to do so in book form (yes, sort of the same book I said I was going to write when I left News Corp) and so I thought I might resurrect this blog so I can practice and try some thoughts out on my pitiful but loyal audience.

So when I have a thought, I’ll share it here. In the meantime there’s always this.

Disappointing innovation – pitch 1

I have just spent a day with people talking about the future of the media. In amongst the usual presentation, panels, Q&As and watery coffee they have been hosting brief talks by interesting innovators in the media sector in Europe.

They were mostly perfectly nice ideas, plausible and well explained. But perhaps I have been hearing these ideas and pitches for too long because they felt a bit disappointing. Not only are many of them small, unambitious and in some ways an admission of defeat, but fundamentally they are little changed from the hopeless pitches I was listening to twenty years ago and more at News International.

Here, for example, is one generic pitch which has been around as long as the internet and still keeps popping up with different names…

The “Incremental Revenue” pitch (aka the “money for nothing” pitch)

This one involves saying to an existing media player with an established brand that you are going to conjure them up more money out of thin air. Better than that, it will be money that they can’t themselves get on their own. Better yet, there is no risk of damaging their existing business. What’s not to like!?

The ask

The existing media player is asked to give the start-up access to some or all of their content, plus their brand. The start-up will then cleverly combine it with other content and brands from other places and sell it (under their own brand, but heavily using the established media brand to help) to people who would never buy the core product (this will be young people / foreign people / people in niche sectors being targetted by a special product / people whose purpose is badly served by the core product / a whole new product etc)

The payback

Revenue share. Sometimes of subscription fees, more often of advertising. Usually calculated in a rather opaque way, or as a “revenue pool” which is shared between all the content providers on an arbitrary basis such as how often their content is accessed. If there is revenue then some fraction of it gets paid to their partners. Sometimes they offer a tempting non-financial morsel to appeal to operational people which gets their signature-hand twitching (being able to add to the circulation figures of print products for example, is better than gold to some circulation-focussed publications)

The promise

Nothing really. The established brand and content is zero-valued up-front, they just get a cut of revenue. Inevitably when this pitch is made revenue is approximately zero but huge sums are anticipated by year 3 and after year 5 it will have overtaken Google, Amazon and Apple combined.. Despite the confidence that these predictions are, if anything, conservative, no guarantee of revenue is available (“we’re a startup, we can’t afford to make guarantees”). The established brand is invariably used in pitches to other people (despite being zero rated financially).

The threat

If they deliver their lofty promises, they will get bigger than the brands that are contributing content and become a strategic threat.

The rational response to the pitch

“Come back when those big numbers you’re expecting start to become real” (the likely reply is “but we won’t get there without your content and brand” which leads to the obvious conversation about value)


“no guarantee, no deal”.

The ways the start-up might get people to sign up anyway

Either get them to irrationally over-value your offer (auditable circulation is like cocaine to some print publications) or get them to follow the crowd for fear of looking foolish or missing out. Depending who you’re talking to they might be tempted by equity.

Likelihood of the big numbers eventually being delivered

Almost zero (meaning the threat is, in reality, low as well). But some of these turn in to perfectly decent, if unexciting and minimal, revenue streams.

Paying publishers will “slow down the internet”

Quite a moderate view from Eric Schmidt, in response to the proposal that German newspaper publishers get a revenue stream from companies which aggregate their content online. The full quote is quite telling, though… “I fear that such a regulation would slow down the development of the Internet because it creates additional costs and leads to inefficiencies”. Equating cost with inefficiency is interesting, it suggests that the most efficient (and therefore best) company is one with no costs. It also suggests that cost is, somehow, bad – free is always better. 

Eric Schmidt works for Google, a company with a 65% gross margin and only one significant revenue stream supporting all their loss-making projects, and who pay nothing for their key resource (other people’s content). They do, however, charge for their own service (advertising), creating cost for other  people. Wouldn’t it be more efficient, therefore better according to his theory, if they gave it all away for free?

Temper, temper…

Rob Levine has written a review of William Patry’s book “How to fix copyright”. Which you should read. And when you do, you must not neglect to flip over to the comments where Mr Patry has been holding forth in somewhat splenetic style.


The answer to the machine… a guest post by Mark Bide of Rightscom and the Linked Content Coalition

Mark Bide is the Project Director of the Linked Content Coalition, about which you will hopefully soon hearing more. Posted below are some remarks he made to The Intellectual Property Lawyers Organisation

It is hardly a secret that, in the era of the internet, it is increasingly difficult to maintain successful businesses which are dependent on copyright.

It is also no mystery. The ability to make perfect copies and to distribute them instantaneously to over 2 billion people – the 30% of the world population classified as internet users – has irrevocably changed the copyright industries – those industries we also sometimes call “the media”.

This is not a bad thing. The barriers to becoming a publisher – in the broadest sense of that word, someone who makes something creative public – or indeed to becoming a self-published author or creator of any kind – have largely disappeared. We can all be published authors or composers or performers or directors now.

No one can (or at least no one should) object to this. The democratisation of mechanisms for publication and dissemination brings with it a huge benefit. But alongside this, we have seen the steady erosion of the capability to make a return on investment from the creation and dissemination of content.

Business models in the media have – almost without exception – been dependent on copyright for 300 years; copyright has been the mechanism that has provided the rewards for creativity. That solid foundation has enabled the development of the diverse and creative media sector from which we all – individually and corporately – benefit.

Despite the common caricature of the traditional media as dinosaurs who are desperately trying to hold onto a lost past, in reality the media are embracing their digital future. Some sectors have certainly been temporarily wrong footed not just by the sudden and dramatic shift in technology but also by aspects of the law. Copyright law, while remaining for the most part fit for purpose, has been made less effective by interventions such as the DMCA and the eCommerce Directive which have made certain infringing business models viable with almost complete impunity.

So while economic and distribution barriers have come dramatically down, the entrepreneurial response you might expect has been muted by the double-whammy of technology and the law, both contributing to the foundations of copyright businesses being undermined.

Despite this, the overall response from the media has been positive and creative. And with this response has come the recognition that – on the network – rights rather than content are the unit of commerce. We trade no longer in physical objects but in rights of access and use.

However, complete disregard for copyright on the internet has become so commonplace as to be unremarkable, something we may rarely admit to doing ourselves but embarrassedly admit is all too common among our children or grandchildren.

But it isn’t simply individuals who disregard copyright; whole sectors of business have developed on the internet whose entire business model is dependent on turning the principles of copyright on their head, of moving from a permission culture to one that at best offers a limited power of opt out and take down.

On the internet, we now find ourselves in a position where making investment in creating content looks a mug’s game. Investment in exploiting other peoples’ content is a much better bet. On line, the best profits from content are made by those who make little or no investment in content creation, and accept none of the risks and liabilities associated with what it has always meant to be a “publisher”.  They leave that to others. The mugs, whose online content creation continues most often to be subsidised by revenues from their traditional – off line – activities.

At the same time, legislators, under pressure from those who tell them that copyright is somehow old-fashioned and Luddite, seem increasingly inclined to go even further in weakening copyright law.  The media are told they must seek “new business models” that do not depend on copyright – but these have consistently proved elusive.

Unless we find a way to turn back this tide, professionally-created content of all types will inexorably become increasingly rare, particularly on line. Our challenge is simple: we have to make investment in content pay again. If we don’t, there will be no investment. This will be massively impoverishing of our culture and our society.

However, I don’t want to sound as if I believe that all is lost. I would argue that, what we have seen is not a failure of copyright but rather a failure of technology, or perhaps of technological implementation. Bringing the ordered structure of copyright back to the chaotic world of the internet does not require wholesale change in copyright itself (although doubtless there is a constant process of updating required – as Professor Hargreaves has indeed pointed out); rather it lies in finding more effective ways of implementing copyright in this relatively new environment.

To quote the late Charles Clark, adviser to the publishing industry in the latter years of the 20th Century: “the answer to the machine is in the machine”. If we can make rights management and rights clearance work effectively at the machine level, everyone will benefit. Consumers will get what they want. Authors and their media partners can get a fair reward for their efforts – and we can continue to develop an effective and competitive online supply chain which also profits from its use of content.

So we must find ways of making technology work as well for us in the management of copyright as it has in managing other aspects of the immense complexity of the internet. The internet is not the end of the media, it is a massive marketplace. Technology is not the enemy, it will be our saviour.

I’m not talking about “Digital Rights Management” – or in Euro-speak “technical protection measures” – although well-implemented technology to enforce rights has its place. Rather I am talking about the “digital management of rights” or perhaps the “management of digital rights”.  We need to be able to communicate effectively about rights in order to build automated and semi-automated ways of transacting in them.

I will offer you one sure-fire prediction about the future of the internet in the next decade. In much the way that it has become a pervasive human-to-human communication environment, it is set to become an equally pervasive machine-to-machine communication environment. This is sometimes (although probably erroneously) called Web 3.0. The revolution implied is on the same scale as the development of the World Wide Web as a publishing medium, and subsequently the development of Web 2.0 – social media, and the engagement of us all in the creative process.

We are still in the early infancy of this latest development in the internet. But it is clear that standards for unambiguous identification and description will play a key role in its effective deployment – particularly in a field like automated rights management, which is intolerant of ambiguity about (for example) who controls rights – or even more importantly who should be paid for their use.

Much work has already been done in developing relevant technical standards in different sectors of the copyright industries – but these are isolated in silos.  As all the different sectors converge on a single distribution channel – the internet – we need to find ways of working together much more effectively. Our customers care little about which sector we think we work in – these distinctions are becoming increasingly difficult to define.

This is why – with the support of the Information Society Directorate General of the European Commission – the European Publishers Council (for whom I work as a consultant) are launching a cross-media project in 2012 called the Linked Content Coalition, with a view to building the necessary foundations of this standards-based information infrastructure, to allow the existing trade standards organisations from across the media to learn from each other and to work together on issues of interoperability.

Is this the answer to the challenge to copyright on the network? No, of course it’s not. But it is at least part of the answer. It is only one element of the infrastructure needed – necessary but not sufficient – to facilitate the creation of a voluntary but effective market for automated and semi-automated rights trading. Completing the task will take a long time, and will involve substantial investment on the part of the copyright industries. But I am convinced that this is a task worth undertaking. Our culture is built on creativity and creativity is built on copyright.

We have already seen enough of the damage that a faulty internet does to the creative industries to know that continuing on this path will lead to less media, which will leave end users – you and me – very much the poorer.

We know that copyright is worth protecting because we know how much economic, social and cultural good springs from it. We also know that small changes can produce dramatic turnarounds. We are working on one small change with massive possibilities. I hope to see the internet deliver – finally – on its tantalising potential to create a new army of content entrepreneurs and content products for us all to enjoy.

That’s a world I want to live in, I hope you do too, and I hope you will support our efforts.

Thank you.

Fascinating ding-dong about Jefferson and copyright

I won’t try to summarise, just head on over to Terry Hart’s blog and look for yourself (be sure to read the comments). A bunch of big brains bumping up against each other.

And have a squizz at Robert Levine’s take on it too. He’s not particularly polite about all the big brains…

Things to make and do: create a new kind of copyright

There are lots of people out there who would like less copyright, and plenty of people benefiting hugely from the fact that it doesn’t work well online.

There are others out there who wish it would work better and are coming up with ways that can happen (I’m one of them).

And there’s another whole category of people who want copyright, or some kind of right, to extend beyond words and pictures to the subject of those words and pictures. If they, or something they own is written about, or photographed, they want copyright-style control over that.

“Absurd”, chuckle copyright lawyers and well informed legislators. To imagine such a thing is to fundamentally misunderstand the nature and aims of copyright and the law.

“Good idea”, say others rather ominously, having heard a rather selective and seductive pitch.

In a sensible world I would discard such ideas. But in a world where the law has turned copyright on its head, reversed its aims and made monstrous riches for people who steal value while adding none, I have learned never to underestimate the common sense of those whose job it is to legislate.

Asking anyone who has to get re-elected every five years to think about the next ten, or twenty, or hundred is asking a lot. Bad law, after all, is one of the things which keeps politicians in business.

This idea has form…

Of course, while a new law would make life simple, new rights can be created without one. And one sector in particular has been busy doing so for the last ten years or more.

So here’s my guide for fun things to make and do: invent a new kind of copyright in two easy steps.

Before you start:

Imagine you own a football club. You are a powerful and wealthy individual. You are a member of an elite group – a league – of other clubs which are also run by powerful and wealthy individuals. You’re all used to getting your own way, and you are used to being able to squeeze money out of your club’s fans in interesting and innovative new ways.

One of the best ways is “Rights”. Rights have been a goldmine, and they’re the gift that keeps on giving. TV rights are the best example – the right to bring TV cameras into a ground and point them at the action has turned from a great way of attracting attention to your sport to a multi-billion pound (or dollar or euro or yen) business.

The way “Rights” work, if you’re a football club or other sporting body, is this:

Step 1: have a venue

First, your venue. Your stadium is your place, right? People can only come in it if you say they can. And you can set the rules. So you do. People can only come into your ground if they agree to certain rules. And you do, whether you know it or not, when you buy a ticket. Some are obvious: don’t bring your own food and drink. Don’t go on the pitch. Don’t misbehave. Some, less so: don’t take any pictures. Don’t communicate with anyone outside the ground. Don’t tweet. You thought you were buying a ticket, but actually you were signing a contract.

[by the way – an aside – but some don’t have any venue at all but still try the tricks outlined here. City marathons, for example, whose venues are the streets to which the public have unrestricted access, have been known to try to impose restrictions on the media].

Step 2: make some rights

Then, make some “Rights”. You have banned people from doing certain things, which means you can decide if anyone else is allowed to do them. By banning them you have made them into “Rights”. Ta-da! These aren’t legal rights, like copyright, written down and defined in law. They’re custom rights, written down and defined by you. The more you ban people from doing, the more “rights” you can invent and try to sell to someone. TV rights, for (the most obvious) example. But there are many others. You have magicked up a whole new business at the gates of your event, limited only by your imagination in creating and exploiting the rights you now own.

Step 2a: control the media

But there’s a fly in the ointment. There are some people you have been letting in for years, and you still want to, who can do a whole load of things which are otherwise banned. They’re the media. You want them there to publicise your game and promote your sponsors (when people buy sponsorship from football clubs they’re really buying cheap advertising space in newspapers). You can’t lock the media out, but you certainly don’t want them using their words and pictures willy-nilly because that might damage the “Rights” you just created by banning people from doing those things.

The media get on the nerves of your average football club owner. He’s used to being autocratic and having control, and these guys turn up every week and then write and print whatever they want. Worse than that, some of them are in the business of selling their words and pictures to others. They’re making money from your club, you’re expensively making facilities for them and they’re robbing you of the opportunity to sell more “rights” to more people.

You have to try to rein them in.

Paperwork works

There used to be an easy way of doing this which was to treat them like ticketholders. Sneak a contract in the way when they think all they’re doing is turning up to do their jobs.

So it began, a decade ago or more. Photographers and journalists turning up at sports events would be asked to sign a bit of paper before they came in. It used to say anodyne inoffensive things – they confirm their identity, that they have insurance, who they’re working for and so on. All fair enough.

Then the small print started to get longer, and the clubs teamed up to agree on the wording, but nobody really noticed. Who reads the small print, right? As long as they could do their jobs they didn’t care. As long as they could produce their newspapers their editors didn’t care either.

So the small print increased and increased and without anyone realising what was happening the sports had made themselves some “rights”. They had banned the media from doing all sorts of things with their own content, and the media hadn’t even realised they were doing it.

…until someone reads it

And long may it have stayed that way had a few people in the media not started reading the small print and raising objections, partly because the terms started to impinge on what newspapers (and in those days it was mostly newspapers) did every day – in other words because the sport got too greedy.

So was born a whole new battleground between sport and media which results in increasingly frequent and increasingly bitter conflagrations. If you picked up a newspaper, for example, during the first week of the England Football League season this August you might have been surprised to see reports written by reporters in the stands. They had been locked out of the press box. Coverage was dramatically reduced.

Similar things have been seen at various times in coverage of cricket in Australia, the current Rugby World Cup, the Indian Premier League and countless others. In other areas, events organisers have tried to ban critical comments of their event as a condition of entry, tried to force copyright of photographs to be handed over to them, have demanded free use of any material generated at their event.

The thing all these agreements, whether anodyne or outrageous, have in common is that they are trying to extend the concept of intellectual property to events. By creating a made-up contractual right event organisers reserve for themselves some of the things which the law reserves for copyright owners.

It’s not as easy as it once was

In recent years it has become a little more difficult for them. The News Media Coalition* is one organisation which has been set up to help ensure that these agreements are at least subject to some discussion and negotiation and it has been very successful in challenging some of the more egregious examples.

But the overall issue is more insidious than just a few sports bodies and concert promotors trying their luck when dealing with the notoriously tactical and careless media. Some of them actually believe that the concept of intellectual property should be extended to cover events as well as content. That staging an event should give you a legal, not just contractual, right to have control and ownership of the content created which is connected with the event.

Think about that for a second.

Someone who organises an event owns some sort of IP right in the event itself. They have a legal right to some sort of control over “use” of the event. Their control isn’t based on anything fixed and identifiable – like a photograph or an article, but on something abstract and ephemeral – the event itself.

This saves them from all the trouble of imposing contractual restrictions on everybody at the event, and then from tracking down and suing anybody who ignores them. It covers people watching on TV, who see the event without being there in person and therefore without a ticket to print rules on. It saves them from having to negotiate with the troublesome media who constantly interfere with their desire for total control. You can see the appeal.

Freedom of thought?

But it would also extend the idea of IP into scary places. If you can’t write about a concert or a football match, for example, without first getting permission, what happens to criticism? If, when you take a picture or something you may already have handed some ownership of it to someone else, you might find that you owe someone something for just having something you thought was your own property.

If by discussing it with others, expressing opinions about it, recalling it within earshot (or web-page-shot) of others, you are also breaching someone else’s rights then we have extended IP to actual thoughts. Far from the original intention of IP – to encourage the sharing of original thinking by protecting its expression – some would extend the reach of the law right into your mind. Forget freedom of speech, freedom of thinking will under threat.

It’s a mad idea. But it won’t go away. The English Premier League argued recently, not for the first time, that football matches should be given a performance right, of the kind given to performance works such as ballets (the insinuation that football matches are choreographed is slightly amusing). The court said no. But some politicians have heard the headlines, thought little about the implications, and warmed to the idea. That’s not just mad, it’s terrifying.

* disclosure: I was one of the founders of NMC and sat on its board until earlier this year. I have also conducted negotiations with sports bodies on their behalf

Disruptors disrupted: NLA victory brings common sense back to copyright

The NLA won its appeal today. (Disclosure: I was on the board of the NLA when this action began and I am a previous chairman).

To judge from some of the coverage you would think this is the end of the web as we know it. There is an attempt to portray the ruling as a criminalisation of web browsing and somehow a perverse outcome which sets the internet back.

I would encourage anyone interested to look a little deeper than those rather dramatic assertions. “End of the world as we know it” always makes a good headline but in this case it’s wildly disingenuous.

This is an important ruling but actually not particularly controversial. What it says, in effect, is that you can’t copy stuff without permission. In other words it says exactly what copyright law says. The controversy, such as it is, centres around the fact that the company on the other side of the case depends on a different interpretation of copyright law – specifically that its particular use of content doesn’t require permission.

This may be a common assertion among internet businesses and many others have thrived on the assumption that other people’s content is a free resource available for exploitation. The justification is usually, at its heart, a post-rationalisation. Essentially their argument is that their use of content has to be legal because if it wasn’t they wouldn’t be able to be in business. Which would be terrible because they have a good business and their users like them.

In this particular case the company in question, Meltwater, decided to take a legally aggressive route when confronted with the NLA’s request that they take a licence. They referred the NLA to the UK’s Copyright Tribunal which in turn caused the NLA to go to the high court for a ruling which was today confirmed on appeal.

Meltwater may well be rueing the day they decided to do this, because the consequence of their action is that any possible ambiguity about interpretation of the law has been removed. This doesn’t just affect them, it affects anyone else whose web business is founded on a generous interpretation of the law.

With considerable chutzpah, Meltwater’s CEO has responded to the ruling today by saying “The big takeaway from this ruling is that our position has been made stronger for the upcoming Copyright Tribunal”. He doesn’t say how,  which is perhaps unsurprising since it would appear that their starting position (which can be summarised as “we don’t need a licence, but even if we do our clients don’t”) has not just been completely and wholly undermined but some other issues. such as the copyrightability of headlines, have also been clarified in favour of content owners.

Meanwhile the PRCA, Meltwater’s partners in this case (and for legal reasons the lead appellant), seem to be trying to say the ruling makes web browsing illegal or generally criminalises web users. “Millions of professionals will unwittingly infringe copyright legislation on a daily basis by simply browsing the web”, according to a scary statement on Paid Content.

This is, to my mind, clearly nonsensical. Most websites come with explicit or implied permission for people to browse them. What they don’t do is come with any kind of permission to set up a business which relies on copying all the content and selling services based on it to commercial users, nor to ignore requests to stop doing so. Meltwater tried pretty hard to make that case but the original judge and the appeal court both said no.

Which, in my view, is common sense.

I was looking at the Meltwater website just now and was struck by how it had changed since i last looked. Last time a phrase stuck in my mind which I couldn’t find anymore. They used to describe themselves thus: “Meltwater Group is a privately held Norwegian company committed to disrupting the status quo through novel technologies…”. It was the commitment to disruption which had stuck in my mind.

They now take a slightly different tack: “Meltwater is a global Software as a Service (SaaS) company developing disruptive, no-nonsense software…”. Not quite the same emphasis. Perhaps it turns out that disruption cuts both ways.


UPDATE: after posting this I was reading the Meltwater press release about the case again and found one thing a bit confusing having just read the actual judgement.

The press release says

“…The Court of Appeal  ruled that it will be very rare that headlines are copyrightable, which is something we’ve been saying from the start,” said Francis Ingham, Chief Executive of the PRCA. “Going back hundreds of years, no court has ever found a title worthy of copyright protection.”

I didn’t remember seeing this in the judgement, so I thought I could helpfully post the relevant paragraph so you can decide for yourself (emphasis added by me):

22.In these circumstances, the conclusion of Proudman J in paragraph 71 of her judgment that newspaper headlines are capable of being original literary works is plainly correct; indeed at one stage in his argument counsel for PRCA conceded as much. It was not suggested that she was not entitled to accept the evidence of Mr Bromley as indicated in paragraph 70 of her judgment. In those circumstances the conclusion in the last sentence of paragraph 72 that “some of the headlines are independent literary works..” is, in my view, unassailable. I would reject the submissions of counsel for PRCA on this part of the case.

Later on, in the conclusion, it says:

48 …There may be some cases in which neither the headline nor the ‘scrapings’ constitute a copyright work or a substantial part of a copyright work. A licence would not be required in such a case but there cannot be many of them.

You should read the whole judgement of course. But hard to see how the PRCA’s conclusion that it is “very rare” that headlines are copyrightable can be drawn from the judgement. Or am I missing something?

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