Mash-ups, sampling, probably OK! Britain
p2pnet news view P2P | Politics:- When the media refer to Britain’s efforts to impose harsh measures, on behalf of Hollywood and the major record labels, against people accused of sharing with each other online, they have his lordship Peter Mandelson as the author.
However, let’s be clear on this: he’s just the front man for Vivendi Universal, EMI, Warner Music and Sony Music, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures, as are Nicolas Sarkozy in France and the heads of other governments acting against their own citizens at the behest of a set of hardcore commercial entities which answer only to their shareholders and investors.
So when paidContent says “Lord Mandelson’s three-strikes proposal,” it’s wrong. However, it’s perfectly correct when it continues the Three Strikes controversy has “gobbled all the headlines,” overshadowing a “parallel package published Wednesday, aimed at liberalising copyright”.
The story refers to an Intellectual Property Office paper, © The Way Ahead, released under the signature of David Lammy, the UK minister responsible for intellectual property, which says, “Education and enforcement remain important, but aren’t the whole story … There is no doubt that overall simplification of the copyright system would be beneficial,” ‘broadly’ conceding: “The digital environment is confusing.”
paidContent summarises it like this »»»
- “The copyright system cannot be expected to command public support unless consumers can use works in the ways they want, such as sharing photos with friends on the web. This means rights holders offering works with broader terms of use.”
- It acknowledges that individuals resent restrictions on personal, non-commercial uses of material, and advocates an EU-level distinction between commercial and non-commercial copying…
- That could include legalising more outright copying, the creation of sound/image mashups, format-shifting and sharing material with family and friends, the report says. But: “(This) could impact on revenues for rights holders; (so) an element of fair compensation for any loss would be required” (who will pay?). And commercialising such mashups wouldn’t be allowed under these exceptions.
- In the report, the government calls also calls for a European-level copyright exception that would legitimise “pre-commercial” copying by businesses, because “easier, cheaper access to works would help to stimulate innovation based around those works”.
- The government plans to introduce collective licensing, allowing royalty collection agencies like PRS For Music to license, for example, music even if a musician has not authorised the agency to do so.
- There’s an intention to open orphan works, which currently can’t be re-used, for copying by both cultural bodies and businesses.
- Broadly, the report says “the government will examine the evidence for copyright simplification” due to be recommended by a Strategic Advisory Board for IP Policy (SABIP) report due November.
- It wants to “move toward a pan-European approach for copyright exceptions in the digital age”, allowing more use of copyrighted works – just one of a range of measures that must be continental because “the UK cannot act independently”.
- But the report says it wants to “improve the existing copyright system rather than to devise a radically new one”.
Below is the full Monty —- well, the conclusions, at least. Any errors in formatting are ours »»»
The Government wants a copyright system that works as well as it can for everyone in the UK, supporting investment and sustaining jobs, as well as underpinning our cultural life, and supporting consumers to get the best from the digital age. This part of the report sets out what the Government plans to do based on the fi ndings above.
2. Much of what we plan to do will need to be reflected in EU-level action or legislation. This is because the UK shares legislative authority in this area with the rest of the EU, through the Commission, Council and Parliament.
3. The Government`s intentions through these measures are:
- for creators of copyright works: to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
- for rights holders: to help secure a viablefuture by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights (including tackling peer-to-peer filesharing);
- for consumers: to allow them to benefit from the digital age by seeking to legitimise non-commercial use of legitimately purchased copyright works and improving access to `orphan works` such as out-ofprint books;
- for educators and researchers: to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
- for businesses and other users: to work towards a simpler system by looking at the scope to simplify copyright, improving the copyright licensing process and encouragingthe development of new business models.
4. The detailed conclusions and actions relating to particular findings are set out below:
Conclusions and actions from the findings
A. Technology means the capability to create, use and distribute copyright works is now in the hands of individuals.
5. This is a fundamental shift in the balance of technological capability. Its consequences are inescapable, including the desire of consumers to make use of this technology for their own purposes. This strategy is part of the Government`s response to it.
6. When governments make rules they often deal badly with technological changes. The Government is alive to this danger: it does not want to see the potential benefits of new technology circumscribed by copyright; nor does it wish to see the copyright system undermined by technology. Instead, it wishes copyright to develop in a technologically-neutral way, and urges other governments to take a similar view. If we do not, copyright will forever be playing catchup with technology, never meeting the needs of current users or providing any certainty for investors or creators.
B. The global copyright system serves a number of important, inter-related but often conflicting objectives.
7. Opinions are very varied: people the Government has consulted have very divergent objectives for the development of the copyright system, including the wish for radical reform such as the curtailment or infinite extension of copyright term.
8. Consultation has not revealed an alternative to the current system that is clearly preferable across the range of objectives. Therefore, while the Government is open to new evidence and thinking, its starting premise will be to work to improve the existing copyright system rather than to devise a radically new one.
9. This approach fits not only the evidence but also the practicalities of a global copyright system, within which the UK cannot act independently but will continue to work with other states to tackle the biggest issues together. It will be easier to work effectively in Europe on this basis, too.
C. The complexity of copyright derives from the historical accretion of rights, more complicated business models and value chains and the interactions of rights holders.
10. There is no doubt that overall simplification of the copyright system would be benefi cial. The detailed arguments for specific simplifications such as particular forms of improved rights clearance are themselves complex and need further investigation. The Government will examine the evidence for copyright simplification that SABIP puts forward. SABIP will be reporting in November 2009. Its report will look at whether there is a case for simplification of UK copyright law and practice, and at any areas where intervention might be required. This could draw on studies on simplification initiativescarried out in other countries, for example Australia.
11. Copyright exceptions have the potential to simplify use of copyright works for consumers, educators and researchers. There are limits to what the UK can or should do within the current European regime for copyright exceptions. The Government would look favourably on moves towards a pan-European approach to copyright exceptions for the digital age.
12. Contracts are an important way of dealing with some of the complexities of copyright, as they can provide a degree of definiteness. However, some institutions such as libraries and archives are concerned that contracts undermine the exceptions that simplify and guarantee access to works. The Government will help bring together public institutions and publishers to establish guidelines on how contracts should refl ect copyright exceptions. If agreements cannot be reached, the Government will consider the case for legislation to resolvethe issues, within the scope of exceptions permitted in Europe.
13. The Government will examine the evidence that SABIP is assembling concerning the wider relationship between contract and copyright. SABIP will be reporting in November 2009. Its report will look at issues such as achieving fairness in a copyright contract, the needs of libraries and educational institutions in terms of copyright permissions and the case for returning rights to authors after a fixed period.
14. The Government will draw together a group to develop model contracts or contract clauses that strike a fair balance between the rights of creators and publishers, which will form a benchmark for good practice. These should include alternatives based on licensing of rights to publishers as well as assignment of rights, including reversion of rights where works are no longer being made available. We expect this group to operate in a similar way to the one that created the Lambert Agreements on university business research collaborations.
D. There is a mismatch between the expectations of users and what copyright currently allows.
15. This is not simply an issue of poor information or education. Many users who know (and may even accept) the arguments for protecting authors and rights holders from unauthorised use of works are nonetheless impatient of the restrictions placed on them by copyright.
One stakeholder workshop gave the example of a wedding photographer who retains copyright over his photos, while the couple
who paid for his services believe they are entitled to put them on Facebook. Education could establish the fact of the photographer`s copyright and its consequences, but the couple`s wish to share the photographs with friends (and not to be prevented from doing so by the law) is likely to run deeper. Based on an example in COI (2009) Developing a Copyright Agenda for the 21st Century IPO Stakeholder Events Final Report
16. This is significant because neither the law nor people`s attitudes are easy to change, but the two need to be reconciled if copyright is to be effective in the digital age. The copyright system cannot be expected to command public support unless consumers can use works in the ways they want, such as sharing photos with friends on the Web. This means rights holders offering works with broader terms of use.
E. The digital environment is confusing. A distinction between commercial and non-commercial use would help. Such a distinction would need to be drawn up and applied at the EU level.
17. Enforcing rights over personal, non-commercial uses of works appears disproportionately difficult in the digital age and consumers have shown not only strong unwillingness to pay directly for these uses but also a high degree of resentment that they should be asked to do so.
18. A case can therefore be made for a broader, better-defined exception to copyright that allows personal, non-commercial use of legitimately obtained copyright works without explicit permission. This might apply not only to the reproduction of works, for example to transfer old LPs or CDs onto a computer, but also for example to creating derivative works and/or to sharing with family and friends. An expanded exception for non-commercial use could impact on revenues for rights holders; an element of fair compensation for any loss would be required.
19. The Government would look favourably on movement by the EU towards options that benefi t consumers. A broad exception to copyright for non-commercial use would be one possibility. As set out in the Consumer White Paper139, the Government intends to review existing consumer law in terms of applicability to digital products and make provision to ensure appropriate consumer protection.
- What might a personal, non-commercial use exception cover? The scope would be decided in Europe; possibilities include:
- creating mash-ups of sound and/or images for personal use, such as sampled music or putting a sound-track to family photos;
- format-shifting from CDs to MP3 on computer, phone or player
- sharing mash-ups and photos with friends and family
- Commercial use not covered by the exception might include a DJ playing his or her mashedup tunes in the course of paid employment or someone obtaining advertising revenue through putting works on the web. Personal use implies that public performance or extensive sharing of works would fall outside the exception, as would use by third sector organisations or businesses.
20. A similar argument could be made for precommercial use by businesses (particularly SMEs) of copyright material140. Easier, cheaper access to works would help to stimulate innovation based around those works, while rights holders would benefi t from additional licence fees based on the new products and services that were ready to reach the market. No use of copyright material outside the fi rm, or for purposes other than product and service development, would be allowed. The Government would like to see the case for a pre-commercial use exception examined in Europe alongside any consideration of broader non-commercial use.
F. The licensing process needs to be modernised for the digital age. Licensing can frequently be burdensome and is not currently possible for a wide range of works.
21. To simplify and improve the efficiency of licensing of works for users and rights holders, the Government intends to implement a system of extended collective licensing along the lines described in the Digital Britain Final Report. This will enable a collecting society or other organisation with signifi cant representation in a particular category of right to apply for permission from the Government to license all works in that category including on behalf of rights holders who have not specifically signed up to that society or organisation, subject to appropriate safeguards including an opt-out for rights holders.
22. As set out in the Digital Britain Final Report, the Government intends to legislate in order to enable schemes for dealing with orphan works to be set up on a regulated basis. This will allow cultural institutions and others including commercial businesses to unlock large numbers of works that currently cannot be used. Safeguards will include requirements to make a diligent search for the true owners and making provision for the reimbursement of rights holders who are subsequently found and claim for the use of their work.
23. Subject to the Government obtaining the enabling powers to license the use of orphan works and extended collective schemes, the detail of these provisions will be developed through extensive consultation and enacted in secondary legislation. Thus, decisions on details such as the term of licences and what will happen to licence fees arising from use of orphan works will be taken as the details of specific schemes are developed.
24. For both orphan works and extended collective licensing, it is particularly important that rights holders, especially absent rights holders, can have confidence in the integrity and fairness of those acting on their behalf. Licensees must also be sure that their licences are valid. Therefore, as outlined in the Digital Britain report, the Government will act to manage organisations licensed to set up extended collective licensing and orphan works schemes. It will look at, for example, adherence to Codes of Conduct and minimum standards for transparency and accountability. These powers will be reserve powers, to be used only when a collecting society or other licensed body fails to self-regulate effectively.
G. Non-legislative registration systems exist and have proved useful.
25. Treaties make clear that copyright is an unregistered right. Yet most collecting societies, and others (like Google through its Book Search project, for example) maintain what can be seen as voluntary registers of rights. These are used for licensing and for the distribution of licensing income. The potential value of systems of voluntary copyright registration in enabling rights holders to assert their rights and obtain remuneration merits further examination, particularly given that the term of many rights has increased over time. The Government will look for an opportunity to raise the issue of copyright registration in international
organisations.
26. The objective will not be to promote a move to mandatory registration. Rather, it will be to promote a consistent international response to the development of voluntary registers, to ensure that all rights holders continue to receive the right level of protection, and to ensure that the rules of the global copyright system are set by accountable governments, rather than through the ad hoc development of new, registration based business models.
27. That said, the Government will not stand in the way of private sector initiatives that require registration, provided they comply with normal competition rules.
H. Monetising content is problematic. Commercial rights holders are responding to change. This needs to be taken further.
28. It is for the industry to come up with business models that work for the digital age. The role of government is to assist this process by removing barriers where they exist and helping to get dialogue started where progress is slow.
29. The Government is supporting the Technology Strategy Board`s £30m Digital Test Beds project, which will create opportunities to test a variety of new systems like micropayments, the use of metadata and automatic licensing systems, and other elements crucial to the development of new business models.
I. Education and enforcement remain important but aren`t the whole story.
30. Deterring infringement of copyright is part of many business models. The Government remains firmly opposed to the unlawful use of copyright material. The Government remains committed to tackling P2P file-sharing through the measures announced in Digital Britain.
31. The possibility for persistent file sharers to be suspended from internet services is also being considered. Suspension would only be used as a last resort in the most serious cases of copyright infringement.
32. Copyright infringement in the digital world is a global issue. The Government is collaborating with international authorities to reduce copyright-related crime. This includes finding ways to clamp down on criminal infringement and to provide an effective legal framework and enforcement regime.
[NOTE: If mention of the SABIP (Strategic Advisory Board for Intellectual Property) makes you feel all warm and cosy and protected, you should definitely have a look at Entertainment industry bullshit.]
Stay tuned
Jon Newton - p2pnet
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
paidContent – UK Will Urge EC To Legalise Mashups, Format-Shifting, Content Sharing, October 28, 2009
David Lammy – 3 strikes plan on track, UK tells Hollywood, September 8, 2009
Use free p2pnet newsfeeds for your site. It`s really easy!
Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/p2p.rss | | Mobile – http://p2pnet.net/index-wml.php
Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.
