Category Uncategorized

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?


This is amusing. Nothing to do with copyright, just amusing. I have had a Gmail account for a long time, and have recently decided to start moving away from it. This is easier said than done, but I have reached the point where most of the mail it gets is from friends. So I put an “out of office” on it to inform people that I would be phasing out the address and asking them to put the new one in their address books. The out of office was entitled “de-googlifying” and contained the phrase “de-googling” a couple of times. I then tested it from my new account, and another email account I have. Neither got the out-of-office, even though it showed up in the gmail sent-items I waited about an hour and then tried changing the wording. “De-googlifying” became “de-g**glifying”, “de-googling” became “de-g**gling”. And the replies turned up instantly. Could it be Google operates a sort of swearbot which censors out-of-office messages about moving away from their services? That Google treats its own name as a swearword? Surely not… Hilarious. Doubtless innocently technical. But a bit sinister.

UPDATE: OK so they all turned up in the end. A long while later. But the one with asterisks is still quicker.

Throwing in the towel

The Guardian has received much coverage this week for it’s new strategy, to go “digital first” and cut its costs massively.

There’s no doubt that the Guardian has an enormous amount of cost they can cut before it shows, and perhaps their CEO’s grim warnings about the fatal consequences if they don’t is as much a way of side-stepping the inevitable howls of anguish from unions and staff as it is the true reason for making what others might look on as sensible adjustments.

But the “digital first” thing is a bit more worrying, to me anyway. The logic is really hard to understand.

On the one hand, they have a determined policy of keeping their digital product free, because doing otherwise “closes down digital opportunities”.

On the other hand it doesn’t seem at all clear what these opportunities are. They have recently made a big move to set up an office in the USA, where much of their audience lives, in the hope that they can make that audience more profitable.

It seems to me like the triumph of hope over experience. You could sum up the whole digital business strategy of virtually every newspaper on the web as having been “build audience now, make money later”.

Even as the audiences have grown like topsy, the money has lingered far behind. The early, optimistic belief that digital would provide a thick layer of icing on the print cake gave way to hopeful speculation that while the digital audience might not be worth much, nor would it damage print – so it was a form of viral marketing.

The more current realisation that print is dying (and the Guardian is explicitly planning for, even accelerating, this change) has been greeted by most, privately at least, with an increasingly panicky desperation to find a model that works or – for many – find a new job before their business impodes.

The curious thing about the Guardian’s position is that while they’re bravely facing up to the realities of their perilous position (Andrew Miller says they have £200m left in their trust fund – which for a company which has lost considerably more than that in the last few years and still loses over £30m per year isn’t much of a safety net) they still seem to just have blind hope that the web will somehow come good in time to save them.

Perhaps it will, and if they deliver their goal to make £91m from digital in five years then I guess they stand a fighting chance (although that’s still only half their current turnover, and they don’t say how much of it comes from services like dating, separate from the actual newspaper).

But there have been countless digital newspaper business plans with that sort of number in them, usually justifying some large capital investment in digital (The Guardian is going to invest £25m this year), and they have mostly proven to be complete fantasies. A new guru presents an even more fantastical plan the year after, but rarely if ever are the enormous returns actually delivered.

In other words, seen from the outside the Guardian seems to be trying to reconcile two inherently conflicting points of view into something they can present as a rational strategy.

On the one hand, they have a strong belief that by growing their online audience they can grow their influence and stature and become a sort of world newspaper. Released from the constraints of print they have the freedom to find their audience all over the world and they don’t want to put barriers in the way of that.

On the other hand they need to make more money, or at least lose less.

So they’re dramatically cutting costs to address the urgent need to improve the bottom line.

They’re making an optimistic five year plan safe in the knowledge that it will be a long time before anyone will know if it can be delivered (and plenty of time to change it before the deadline anyway).

And they’re hoping it will all come good in the meantime.

I hope that’s not it, and that the Guardian has some amazing secret masterplan up it’s sleeve.

But it’s basically the approach adopted by most newspapers for most of the history of the internet, and so far it has an unbroken record of failure.

Big idea, big support

The European Commission is sometimes a confusing, strange beast. I have been to meetings and conferences organised by them countless times and have always come away not sure I knew quite what was going on.

Recently they have been been looking for Big Ideas to help formulate their digital policy and agenda. This is part of an, in my view laudable, effort to involve a wide group of stakeholders in policy development and let them help set the agenda.

One such big idea, which I have been slightly involved with, was submitted by the European Publishers Council and has made it through a selection process whittling down about 100 ideas submitted to just seven which were then discussed at the Digital Agenda Assembly at the end of last week. I was part of the panel presenting the idea at the start of the day.

Their big idea is to ensure the various standards and systems for managing copyright are interoperable, so that finding information about pieces of content and obtaining licences is easier. Boring though it sounds, this is an essential piece of plumbing (one person referred to it as “killer plumbing”) which will enable many great things to happen.

As you can see from the agenda for that session, a pretty wide group of organisations and stakeholders were represented in the discussion, from Yahoo, Amazon and Microsoft through consumer organisations, artists organisations and collecting societies to the European Parliament, as well as others who contributed from the floor.

The whole thing will be written up and responded to by the Commission in due course I’m sure. My impressions were that the idea was a big hit and will probably lead to some action on the part, mainly, of the stakeholders and hopefully with the support of the Commission to get everyone together.

I’ll post further reflections too, but for the moment my strongest impression from the day was this.

Every panellist, when asked whether they support the idea of creating a “Creative Content Access Alliance” to move the idea forward, said yes.

With the exception of Google, who said they were already supporting the Global Repertoire Database (a music industry initiative which would be an important part of the Killer Plumbing) and, er, weren’t sure if they could support an alliance.

Now, everyone was put on the spot by the question, and I suppose everyone will have the opportunity to further reflect as the process develops, but it was an interesting anomaly that only one organisation demurred from offering their support. What, I wonder, would Google have to be concerned about?

Apple’s Newsstand – the oldest new idea yet

Apple have announced their Newsstand. It’s a sort of container for newspaper and magazine apps. They’re arranged in a shelf format, a bit like shops. When a new issue comes out you can pay for it (or you might have a subscription).

This is hardly rocket science but in the topsy-turvy digital world it’s a huge innovation. People are pondering at length what it can all mean, who will win and who will lose.

In fact it’s self-evidently not particularly innovative – existing services like Zinio and, er, Newsstand do the same thing.

The real significance is that it brings a large chunk of Apple’s 225m credit-card wielding customers within the reach of publishers everywhere.

In other words, paying for content is becoming less strange and more ubiquitous.

Many anxious views will be expressed about Apple’s terms of trade, their percentage take and their non-sharing of data but to me that’s beside the point.

To have a market worth fighting over we have to have a market. Expanding the world of paid content is a good thing and we can argue over the money when there’s a bit more of it at stake.

How long should a good thing last?

The term of copyright is a controversial and much argued issue. How can we minimise any negative consequences without robbing anybody of their property?

Copyright lasts a pretty long time. If I live to 75, the copyright in this article will finally expire some time in 2114. After that it will be in the public domain, out of copyright. Anyone will be able to use and my successors – probably my great-granchildren –  will no longer have control over it. But until then you’ll need my, or their, permission to do anything with it.

Of course the chances that anyone will have even a remote passing interest in this article in even a few years are pretty remote. It won’t take a century for this article to be forgotten, an irrelevant piece of ephemera. Despite that, the law as it stands hands the same protection to everything, from the emails you send and receive every day to the great works of William Boyd, The Walt Disney Company and your brother-in-law.

Good arguments against long copyrights

This gives rise to many, and sometimes quite emotive. arguments. People rail against the length of the protection, claiming corporate interests are trying to monopolise and protect their greatest assets. Disney, frequently, is blamed for copyright term extensions which coincide with the looming expiry of rights in early Mickey Mouse cartoons. Opponents of the long term of copyright have many eloquent and outspoken supporters.

Another common complaint is that most of the content protected by this long copyright term doesn’t want to be. Despite being effectively abandoned by its authors, who have long since stopped caring about their work of decades before, nobody can use it without their permission which – if they can’t be found – can’t be given. So huge amounts of work – so-called “orphan” work – is caught in a sort of copyright limbo, effectively held in stasis while the copyright clock slowly ticks down to its eventual transition to the public domain.

Economists talk about economic incentives, and say nobody creates anything with a mind to a hundred years or more of payback to justify their efforts, and copyright term should only be as long as needed to create the incentive to create something in the first place. So a few years is more than enough.

Copyright term means you only temporarily own your own work

All of these arguments step around one key point: copyright is property. It belongs to someone. And the law forces them to give up ownership of it at some stage, whether they like it or not.

When you stand back and think about it, that’s kind of strange. It doesn’t happen with many other kinds of property which, generally, you own indefinitely. Why should copyright ever be given up at all? It’s not as if it’s a shared, natural resource or something. it’s yours – you made it. Without you it wouldn’t exist. So why shouldn’t it stay yours?

Why shouldn’t my work stay mine?

One answer to this question is a cultural, or moral one. Copyright should pass to society, to the public domain, for the public good. We should all have access to knowledge, and copyright should only exist as an incentive to create things in the first place. Once your investment in creating it has had a good chance to be re-couped with profit, copyright should end. That way the greater interests of society are served.

Another, the subject of much anguished hand-wringing in the USA, is because the US Constitution (sometimes treated, to cynical British eyes anyway, with a little too much quasi-religious reverence) says that copyright should be for a “limited time”. Speculating about what the founding fathers meant by this is a peculiarly american way of tying yourself in knots.

What does it mean in the real world?

My instinct is to think about the realities. Where, in real terms, can the negative impact of copyright terms be seen? Can we, on the other hand, see any positive impacts?

As I have said before, one of the great balancing acts performed by copyright is to limit appropriation of something (copying) without limiting inspiration. The truth is that almost all creative work can trace its inspiration back to something someone has done before. Because copyright encourages access to knowledge, and doesn’t limit what can be done with that knowledge, it drives creation of vast amounts of new work all the time. Which I think is a good thing. The economic incentives are strongly to create new things rather than re-cycle old things.

I suppose this does mean that some old things get lost along the way, effectively impossible to re-commercialise without risk because the copyright owner can’t be found (although, as an aside, the risks are often quite small and manageable). But I’m not sure that is the terrible tragedy it is often portrayed as. There are lots of arguments, many of them theoretical, about the negative impacts, but even where they’re real I think the best solution is for the law, and technology, to incentivise commercial solutions than to reduce copyright term and simply appropriate the value from those who created it.

A bad moment for change

We should also think about the moment we’re currently in. One of the main reasons why works become orphans is because it stops being commercially viable to exploit them. In the physical world of content there are always costs involved in keeping something available, even if you don’t sell any. In the digital world that’s not true – once something is digitised it can sit in a server waiting for a buyer at virtually no cost at all.

That means that many of the things currently unavailable or considered “orphan” could be brought back into commercial availability by the people who own the rights. What was previously lost can be rediscovered and brought back into circulation. We’re already seeing this happening with e-books – there are plenty in the Kindle store for £1 or less. And with digitisation of printed books possible for about $50, the investment is low enough to encourage huge amounts of books to be brought back into print. In other words the commercial incentives are just beginning to be enabled by technology, now would be a bad time for the law to intervene.

Ultimately, creators choose copyright

There are good arguments on all sides of the copyright term discussion. You can equally well argue for a perpetual copyright term (as Mark Helprin, with some contortions to avoid arguing against the “limited time” decree of the US Constitution, does) as an incredibly limited one.

In truth most of these arguments are a thought experiment, an exercise of imagining how much better the world would be if only it was the way you want it.

Personally I’m inclined to the view that copyright term is fine, too long for some purposes, too short for others but in the end if you have to have one rule to apply to all material, longer is better. We should be looking to address any perceived unwelcome side-effects using technology and commercial solutions.

The truth is that the law shouldn’t need to decide. Creators can choose to put their work wholly or partly in the public domain any time they choose. Projects like Creative Commons exist to make it easy. The law as it is gives creators the chance to make their own choice about how much they want to take advantage of their copyrights.

The reality is that most of them choose not to give up their rights. Which to me means that the argument for forcing them to do so by reducing copyright term needs to be overwhelming.

In my view that argument has not yet been made.

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.

Right to register?

The Hargreaves review looks like it’s about to de-cloak. As the umpteenth review of copyright recently, and having been conducted at breakneck speed, the signs are that the outcome is better than we might have hoped. (I had a word or two to say about this review before).

Zone of common sense

For one thing, the idea of introducing US-style “fair use” into UK law seems to have gone away. On the one hand this isn’t surprising, because the idea doesn’t stand up to an iota of scrutiny, not least because the claim that it somehow helps nascent digital businesses with a mythical “zone of oxygen” is completely wrong headed. On the other hand, since David Cameron specifically mentioned this as a desirable outcome when he announced the review, it must be a bit awkward for Hargreaves to reject it.

Thankfully it looks like he has, and is distracting us by coming up with a few better ideas instead.

Rights registry

The one which seems to be attracting the most attention is the idea of a copyright hub, or rights registry, through which copyright can be licenced.

This is a great idea and one which for me is one of the foundation stones of the future for copyright. In order to licence something the first thing you need to know is who to go to for the licence and a rights registry will enable that.

But the devil is in the detail, and this needs to be done well to work well. There are plenty who would love to see it get bogged down in an administrative political swamp, and when governments try to do things themselves, it can turn a bit messy.

What I have been reading so far sounds a bit like a call for a single, monolithic, registry, and statutory registration hasn’t been a requirement since the advent of Berne Convention. I hope that’s not what emerges, because along with monolithic solutions always come politics, cost and inefficiency.

Learn from what already works

I am hoping that what we end up with is a distributed rights registry, with minimal central infrastructure and lots of people competing to provide services to the market. Obviously there needs to be an authoritative registry at some place in the system, but it should be as lightweight as possible, simply signposting the way to whoever can actually deal with the content in question rather than getting involved in the transaction itself.

In some ways (although by no means all) there are some lessons to be learned from the Domain Name System here. Name servers provide the actual information about a domain, all the central registry does it say which name server is responsible for a particular domain.

KISSS – Keep It Seeming Simple, Stupid!

Name servers in turn are more complex signposts – sending email to one server, web traffic to another and so on. And those servers can be anywhere, and can do anything. A simple signposting system facilitates, rather than interferes with, the behaviour of the actual domains. All the user does is click on a link and within a second or so they connect with one of multiple millions of possible servers on the internet. The complexity is hidden but the system is flexible.

I think we need something like this for content. Better security and a less dysfunctional central governance than the domain name system has would be good, but the distributed and competitive nature of the actual market it facilitates are essential.

A solution for the whole internet

Actually, I think they’re inevitable too. The UK can’t set up a single, central function for the whole world. Whatever happens it will need to interact with other similar systems elsewhere. Ideally they will be built on a single set of protocols which will be open and non-proprietary.

Hopefully the next step will be for the UK government to sponsor the creation of the infrastructure and protocols needed, without trying to own or control them other than doing whatever needs to be done to protect the authority and trust in that central “root” database. That way they can move the whole internet forward as well as putting the UK in pole position to show the way to a new phase of growth and creativity.

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