Meera Nair

Posts Tagged ‘United Kingdom’

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.

Fair Use – the essential innovation

In Posts on May 12, 2011 at 10:12 am

I usually focus on the creative development possible through fair dealing or fair use; those downstream uses of copyrighted work that facilitate research and learning, or, transformative uses that produce new works. However, there is another element of individual use that deserves attention. The arguably legitimate activities of time and format shifting carried out through private copying. We should not forget that economic prosperity, on a national scale, can be facilitated through these individual activities.

Last week I drew attention to the work of Consumers International (CI); I noted that their current IP Watchlist indicates that Malaysia, Japan, and the United Kingdom are considering implementing fair use within their domestic copyright laws. In a separate report, Access to Knowledge for Consumers – Reports of Campaigns and Research 2008-2010, is a chapter concerning Israeli copyright law and its implementation of fair use in 2007. The chapter, written by Dr. Nimrod Kozlovski, Jonathan J. Klinger, Uria Yarkoni and Nati Davidi, gives an apt summary of the history of Israeli copyright law and related ongoing activity.

The authors position fair use as part and parcel of Israel’s innovative potential. The advantage of protecting consumer rights is that individuals have the certainty to engage in business with others with productive gain for all:

We can see that in a series of cases, the Israeli courts favoured the free markets and competition over property rights, with the understanding that as innovation comes, there will be more welfare (p.177).

In terms of Israel’s progress, fair use is considered essential to achieve free markets and free competition.

This is a perspective that Ireland is now willing to consider. As was reported by John Kennedy on May 9, 2011, the Department of Enterprise, Trade and Innovation is seeking submissions concerning copyright. According to the department’s website:

There is a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models.

The terms of reference for this review of copyright include, “Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also state that if suitable changes are not possible under the current constraints of EU copyright directives, Ireland will make recommendations for changes to those EU directives.

The United States is the foremost example of the creative development that can be fostered by maintaining flexible limits on copyright’s mandate. A point exemplified and emphasized by Google; two years ago the company called on the U.K. government to adopt fair use, and, two months ago followed it up by giving that same government a submission detailing the importance of fair use:

[Fair Use’s] flexibility has enabled it to protect both creative cultural output, such as parody or news commentary, and technological innovation built on digital copying. … Fair use is regularly referred to as the key tool by which the US fosters innovation … And the proof is in the pudding: no country in the world can compete with the U.S. for the most innovative search technologies, social networks, video and music hosting platform, and for the sheer generation of the most jobs and wealth in the Internet domain. If one is looking for evidence of how innovation succeeds, the best way is to look at those places where innovation has succeeded (see Section 4.2).

A more in-depth analysis of fair use as a catalyst for American innovation can be found in Fair Use As Innovation Policy (2008), by Fred von Lohmann (Senior Intellectual Property Attorney with the Electronic Frontier Foundation (EFF) and Lecturer at Stanford Law School.) He observes that the more noble aspects of unauthorized use of copyrighted material are easily and often defended – i.e., fair use preserves freedom of expression and fair use upholds the time-honoured process of creating something new by building on something old. But Lohmann focuses on the act of private copying with the reminder that until 1998 the U.S. followed a mantra of “innovate broadly first, regulate narrowly later (p.25)”. Those innovations took form in popular consumer technologies which depended on the legitimacy of allowing individuals to engage in private copying. Lohmann concludes: “From this observation grows the corollary that the fair use doctrine may well be playing an increasingly critical role in U.S. innovation policy (p.36).”

(And to naysayers who will complain that fair use is thus a subsidy to the high-tech sector paid for by content providers, Lohmann gives an extensive four-part rebuttal.)

It seems likely that the Federal Government of Canada will reintroduce Bill C-32 in the near future. Much has been made of the fact that Canadian copyright law has not been significantly altered since 1997. Rather than implementing measures deemed suitable for 1998, perhaps the government will look forward and position Canada as an early adopter of a proven digital economy catalyst. All that is needed is a little unshackled, innovative thinking.