Divergent Approaches To Copyright Reform Emerge In Europe

Two very different views of copyright reform emerged this week, one from a report commissioned by the UK government, the other from a French citizens’ advocacy group. The former envisions an intricately linked system of digital rights exchanges and databases to streamline copyright licensing, the latter broad, “non-market” sharing of protected works between individuals, among other things. Whether either approach is feasible remains to be seen, and, as always, the devil’s in the details, lawyers say.

No Room for Complacency

The UK creative sectors are “busy streamlining copyright licensing for the digital age,” Richard Hooper and Ros Lynch said in a 31 July report [pdf] to the UK Intellectual Property Office.

The report is the second of two responding to the 18 May 2011 “digital opportunity” review headed by Ian Hargreaves, digital economy chair at the Cardiff School of Journalism, Media and Cultural Studies (IPW, Copyright, 18 May 2011). The first, published 27 March 2012 [pdf], concluded that Britain’s copyright licensing regime was not entirely fit for the digital age. The second-phase report looked at ways to fix the problem.

There has been progress, however, “there is … absolutely no room for complacency,” the report said. Its chief recommendation is the creation of a “not-for-profit, industry-led Copyright Hub based in the UK that links interoperably and scalably to the growing national and international networks of private and public sector digital copyright exchanges, rights registries and other copyright-related databases, using agreed cross-sectoral and cross-border data building blocks and standards, based on voluntary opt-in, non-exclusive and pro-competitive principles.”

The hub will focus on the high volume of automatable, low monetary value transactions that come mostly from the long tail of smaller users, such as small digital start-up companies seeking to use music and images creatively and users posting videos on YouTube.

Several issues must be resolved before a copyright hub can be built, the report said. Existing data building blocks such as international standard identifiers for the music and publishing industries must be used accurately and consistently to identify works, creators and accompanying rights, and, in industries where such identifiers don’t yet exist, there must be a coordinated approach. Web publishing companies must agree to stop stripping metadata from images. In addition, the hub will need better databases that can talk to each other across sectors and borders, it said.

Other issues to be resolved are how to make licensing less complex and pricey for educational institutions and the music industry; what technical solutions are needed to enable effective “due diligence” searches for rights owners of orphan works; and how to close the “repertoire imbalance” between what’s available in physical (e.g., DVD) form versus what can be downloaded from the internet.

The study highlights the key issues that must be tackled to make finding and clearing works “as easy as search is today,” said UK digital media lawyer Laurence Kaye. But “the challenge is to get that vision realised,” he said in a 1 August blog posting. The proposal holds great potential economic benefit for the UK, he wrote. “The devil is in the implementation but we must laud the vision.”

The Hooper report sounds good but contains many “qualifications and impediments,” said a US entertainment lawyer involved in many European legal matters, who asked not to be identified, and said he is not opposed but merely raising questions to be addressed. It is not clear that a policy that seeks to make the UK the copyright hub of the world will succeed, he said in a 2 August interview. The idea that producers and copyright owners in other countries will want their works traded through the UK, undoubtedly for a fee, isn’t politically realistic, he said.

A larger problem is that, as the report acknowledges, major film and TV companies will not participate in the hub because they already have their own distribution channels, the US lawyer said. But rights clearance for movies and television is where the real money is, not in licensing for high-volume, low cost transactions, he said.

La Quadrature du Net’s Reasonable Alternative

Now that the European Parliament has rejected the Anti-Counterfeiting Trade Agreement (ACTA), it is time to consider a new copyright regulatory and policy framework suited to the digital era, French advocacy group La Quadrature du Net (LQDN) said in a 31 July paper.

Its 14 objectives include using the legal doctrine on exhaustion of rights to allow “non-market” sharing of digital works between individuals; letting libraries and archives make works whose authors cannot be located (orphan works) available free and under wide usage rights; and requiring copyright registration.

La Quadrature’s reputation as an outspoken activist organisation might lead some to instinctively reject its proposals without looking at them, the US lawyer said. In fact, some are “pretty reasonable” and many are already under way or under consideration, he said. These include legitimising referral and linking to digital content, exceptions for educational and research, and reform of copyright collecting societies, he said.

The idea of adapting the legal doctrine of exhaustion of rights – used to allow people to share or sell books they buy with others – to the digital environment amounts to a digital first sale concept, the US lawyer said. That issue will be litigated in the US in a case filed by the recording industry against ReDigi, a service that lets users store, stream, buy and sell pre-owned digital music, he said.

In most countries, there is “not a chance” at this point that digital first sale will be allowed, but it will happen in time, he said.

A more problematic proposal is to make copyright registration compulsory, the US lawyer said. That could be “dead in the water” because registration is a formality, which is prohibited by the Berne Convention, he said. Many copyright owners already put copyright notices on their content simply to tell others who owns it, he said, but requiring them to so do would require changes to the treaty, he said.

Giving legal recognition to non-market sharing would represent “a considerable advance in the law,” the attorney said. No country has done so yet, but it could happen, perhaps as an effect of the ReDigi case, he said.

LQDN’s ideas are “very interesting” but it is unclear where they will go and many are under discussion, he said.

In a separate development, the UK Society of Authors said last month [pdf] that the government may be violating European Union copyright law by not requiring volunteer-run libraries to pay royalties on loaned books. Officials reportedly denied the payments were affected.