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UK Copyright Consultations: 2011-2012

Drawing of Hargreaves standing on past Copyright Reports and ActsHooray! Government agrees to changes …

The government has accepted all 10 recommendations of the Hargreaves Review and established a committee to publish proposals by mid Autumn 2011. Next major step is a further consultation (later in Autumn to Jan) on the proposals. The underpinning drive is ‘economic’ benefit and at this point both the ‘orphan works’ issue and the idea of a ‘Digital Copyright Exchange’ (DCE) have received a lot of attention BUT there’s a lot further to go in a very short time. Final e recommendations expected in Summer 2012. Will the needs of schools be considered and will the outcomes support students and teachers?

:: UK IP Office reports and documents on Government’s acceptance of  Hargreaves.

 

The Independent Review of Intellectual Property and Copyright in the UK by Professor Ian Hargreaves was published on 18th May 2011 under the title ‘Digital Opportunity – a Review of Intellectual Property and Growth’.

The Review makes 10 recommendations designed to ensure that the UK has an IP framework better suited to supporting innovation and promoting economic growth in the digital age. These include potential developments that could, if implemented (NB!), have important effects for learning, teaching and administration in school education.

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Summary …

The focus of the Review is on “economic growth” but many of the areas considered could effect schools in their day-today activities of learning, teaching and administration. Fundamentally the Review recognises that “copyright has begun to be a barrier to the creation of certain kinds of new, internet businesses … the IP framework is falling behind and must adapt …”

Recommendations include:

:: Updating ‘copyright exceptions’ – some of which are already within the EU framework but which Britain has yet to take up. The Review notes that there is, “a growing mismatch between what is allowed under copyright exceptions and the reasonable expectations and behaviour of most people”. So …

:: Permit format shifting for ‘personal use’.

:: Permit use of copyright material for parody – You Tube videos.

:: Extend exceptions for library archiving to cover audio-visual works.

:: Permit data analytics and mining for non-commercial research.

“Video parody is today becoming part and parcel of the interactions of private citizens, often via social networking sites, and encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy.” (Chapter 5)

:: Permit licensing of Orphan Works. Orphan works are those works for which their is no known owner and are very important for libraries and collections.

:: Establish a Digital Copyright Exchange to make the whole system easier, more automated and faster for small as well as large users and keep costs low. The Exchange could also manage Orphan Works, a common framework for Collecting Societies and provide a ‘small-claims’ route. An Exchange would be set up by agreement between “relevant interests” but not established directly by Government, and as with several elements in the Review, exactly how this would work is not clear. To what extent it could assist the education sector, or schools, is even less clear at this point; pet ideas do some times become beasts when let off the leash.

:: Schools depend a great deal on Collecting Society licences for copying from books and newspapers, recording from tv and playing music. The Review, referencing amongst others, a report by Pinsent-Masons for BECTA (2010), recommends that Societies should work to a common code.

:: Contracts for digital services and resources, on which schools depend, should not in their terms and conditions “override” the copyright exceptions as has been found to be the case in some instances at present.

:: The Review recommends at EU level a single additional “catch all exception” to accommodate future technological change. (terms and conditions often include a similar phrase to protect copyright owners). Currently copyright and licensing is well off the pace of technological development and, as things happen quickly in the digital age, consequentially of public usage.

:: The Review quoted the NEN submission in highlighting the complexity of the current system in relation to real-world experience and recommends a ‘guidance’ service, perhaps run through the UK IP Office, which could have an extended remit given the needs of the Review’s recommendations. But, it is not clear how this would work in practice or at what level of ‘guidance’ given the Review says that judges would have to take account of the ‘view’ provided in any subsequent litigation.

“During the course of a learning activity children will cross over the multiple boundaries and traverse the vagaries of copyright and licensing. They will trip over ‘orphans’, bump into third party rights, be turned away by pay-for services, use licensed and make their own materials – often without knowing that there are multiple copyright dimensions to what they are doing, because, who can know all about copyright?” Chapter 5

:: The Review also dealt with Patents and Design Rights, again seeking to make things quicker and more direct and ‘open’ for innovation and small businesses. The Review underlined the need for the UK to join international innitiatives and ‘realise’ what was already available through the EU framework.

:: The Review also looked at the USA Fair Use method of working but found that change from the UK ‘fair dealing’ and ‘exceptions’ methods would be legally too difficult. It also noted that the reason why companies such as ‘Google’ had been able to innovate was more to do with attitudes and the economic risk culture in USA than to copyright regulation per se.

:: In the area of Copyright Infringement the Review emphasised the need to make changes to copyright legislation, encourage more market opportunities (= more acceptable ways for people to keep legal) and provide education as well as litigation and the measures now in the Digital Economy Act (the ‘three strikes’ measures). NEN has published its submission to the Ofcom Consultation on the issue for schools.

Throughout, the Review stresses the need for decision-making to be based on evidence and goes as far as to point up that “… there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes” in recent years.

Sideswipes are taken at the increase in durations for audio and music; “incentivising the deceased” – and there’s a lovely extended critique of the parody ‘Newport State of Mind’ – Newport Wales being, coincidentally, the HQ of the UK’s IP Office!

All in all the Review calls for a step-change in ‘copyright’ and for some fundamental changes to UK legislation; whether the recommendations are taken up in whole or partially by the Government remains to be seen. We should hear their response prior to their summer vacation.

Marshall Mateer: original piece 31st May 2011. Drawing added and edited 14th June 2011.

Shapes view …

Well, we’ve been following this little road for about 10 years here on Shapesoftime – and is that, at last, a light at the end of the tunnel? or just the onrushing lights on the barriers of inertia?

Whatever – the time is now! Seize the hour! The Gowers Review of 2007 didn’t make it to the statute books and NOW the need for change is even greater – this is a ‘last chance’ for the UK to move into a fairer, more balanced system of ‘copyright’ that is more supportive for users (innovators, consumers and re-users) and which could support the economy, build the knowledge hoard and bring general social benefit to everyone.

:: The exceptions currently available through the EU framework must be made law in UK to produce a copyright landscape that is at least a bit clearer, fairer and more comprehensive. We have had to work in a grey mist of obfruscation and out of date rules. ‘Parody’ for instance is a key method for learning and teaching in many subjects, not just a comedy soft spot. Orphan works – the copyright interred – must be freed to help libraries and collections make their materials available to everyone; though there may be some cases, e.g. photographers, who will need safeguards for the issues they face.

The Digital Copyright Exchange is likely to receive most attention and will involve itself in dimensions beyond our immediate interests and discuss legal and statutory arguments beyond our ken; but an education voice about practice and the impact on learning and teaching needs to be made clear in any ensuing process of consultation and implementation. The work of Collecting Licences needs to be brought within a framework to avoid more gaps appearing in what’s covered and what isn’t and the incomprehensible differences in terms and conditions of use between just about every subscription and free-to-the-user service schools use made more coherent. And who will monitor the impact of costs arising from the potential veritable raft of new arrangements on already stretched school budgets?

:: Education – learning and teaching – requires that the position of shared learning is included as these changes are, we hope, worked through – what does ‘personal use’ mean in the classroom? Who is defing what’s in and what’s out for education? Learning and teaching depend on sharing, communication and collaboration – the very skills that support business innovation and the economy, which was the focus of the Prime Minister’s remit for the Review.

:: Writing common sense guidance about ‘copyright’ for schools has been nigh on impossible because the level of detail and complexity in copyright regulation and licensing defies general understanding and does not allow the application of any general rules beyond the baseline of ‘permissions’. If there is to be an ethics fit for the digital age there must be a framework that is ‘platform neutral’ and ‘medium neutral’ to work from and a clearly defined dimension of educational use that is recognised and which does not make negative commercial impact on or effect the intentions of copyright to encourage further innovation. From that understandable basis due respect for creators, distributors and users can grow equally for all parties into a ‘commonwealth’.

… and quoting from an earlier essay for the British Library, “Today copyright often becomes a barrier standing in the way of what it should be enabling. Schools, with their classes of thirty, need the flexibility of use to seize the ‘learning moment’. Given that ‘trust’ and encouragement, they can successfully promote the values of copyright for public benefit and the economy through the shared knowledge on which our 21st century existence depends. Given that ‘trust’ it will be the young people who will create a copyright framework fit for a new era – it is our role to provide them with the opportunity to do so.”

M.Mateer, original piece 31st May 2011. Edited 14th June 2011.

Copyrights
The drawn image of ‘Hargreaves Delivers His Copyright Review, 2011’ by Marshall Mateer is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 UK: England & Wales License. Permissions beyond the scope of this license may be available; please contact www.shapesoftime.net.

This work – third party images, quotations and references excepted – is by Marshall Mateer and is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 2.0 UK: England & Wales License.

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