Meera Nair

Challenges in the U.K., opportunity in Canada

In Posts on May 18, 2011 at 9:34 am

Today Michael Geist alerted us that the Hargreaves Review was available online. This is an independent study conducted at the request of the U.K. Government concerning “how the UK’s intellectual property framework can further promote entrepreneurialism, economic growth and social and commercial innovation.” It was among the submissions to this study that Google made the case for fair use (cited in my last post).

A few things that struck me immediately:

1) The existence of the report itself. The Government of Canada also solicited input on copyright (in 2009) yet no comprehensive summary document appeared for public viewing. As Canadians likely expected that the views of key players and experts would carry greater weight, few would complain if the final analysis did not reflect a personal view. But a publicly available report will make the final legislation more palatable if the rationale for setting the legal text is fully explained to Canadians.

2) The Review Panel. All members had considerable experience in the underlying concern, namely the capacity for growth and innovation. The process was lead by Professor Ian Hargreaves (chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School.) He is described as “a distinguished academic, journalist and public servant.” That this group was given a clearly worded question and the independence to give the answer is laudable. They state without reservation the history of failure in the U.K. to implement a viable innovative copyright strategy, and, take care to emphasize that copyright alone is not enough to match the success of the arguably world leader in innovation, the United States. That said, the importance of fair use was emphasized.

3) Chapter Five. This section is devoted to the topic of copyright exceptions. “Fair Use offers a zone for trial and error, for bolder risk taking, with the courts providing a backstop to adjudicate objections from rights holders if innovators have trespassed too far upon their rights (p.44).” I concur. But I can’t help remember that during the Canadian policy consultation, efforts were made to frame fair use as legally unstable; opponents to fair use insisted that if Canada adopted such a measure, the country will be mired in uncertainty and litigation. That claim is false. I address this at length in my paper Fair dealing at a crossroads, available for free download here.

4) Why not Fair Use? The panel’s decision not to recommend its adoption is a consequence of the difficulties of integrating domestic UK law with previously enacted EU law. “Even if the UK were to set aside the powerfully stated objections of the UK creative sector and potentially in the future join forces with the Irish Government or others to promote a Fair Use exception in Europe, the result would be a very protracted political negotiation.” Instead, the panel recommends trying to broaden the flexiblity in copyright’s mandate under the existing set of exceptions.

Canadians are extremely fortunate that we have the autonomy to implement changes in copyright law with minimal objection from outside. Bill C-32, or some version thereof, is coming back soon. It is not beyond reason to implement an exception framed by an illustrative list and preceded by the words “for purposes such as.”

Ian Hargreaves makes the request: “We urge Government to ensure that in future, policy on Intellectual Property issues is constructed on the basis of evidence, rather than weight of lobbying (p.1).” Words that apply equally to Canada.

Update May 22, 2011: John Naughton of The Observer describes the Hargreaves Review as “a refreshingly intelligent and welcome document.” Many thanks to RO for passing the link along.

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