For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Wednesday, 3 August 2011

Digital Opportunity Knocks ...

Yesterday was the hors d'oeuvres, today the main course -- and in the future we will no doubt receive our just desserts. The IPKat is of course talking about something that has been giving us food for thought for some time, something which many individuals and organisations have found hard to stomach, at least in prospect: the British government's response to Digital Opportunity, the somewhat rushed review of some bits of IP in the digital era by Professor Ian Hargreaves and his colleagues [IPKat summary of the Top Ten recommendations here; responses to Hargreaves here and here; Parliament debates Hargreaves here].

Yesterday's hors d'oeuvres was the report in the Guardian with the headline "Vince Cable: government plans to block illegal filesharing sites unworkable: Business secretary to intervene in Digital Economy Act debate in speech and expected to overhaul restrictive rules on file copying". It predicted confidently:
"Vince Cable, the business secretary, will say on Wednesday that government plans to block illegal filesharing websites under the controversial Digital Economy Act are in effect unworkable.

Outlining the government's response to the Hargreaves report on the future of UK copyright law, Cable is also expected to announce legislation to sweep away restrictive rules on file copying and parody works. ...

Cable will row back on one of the act's most contentious measures – introducing legislation to block access to copyright-infringing websites – and instead suggest that the existing Copyrights, Design and Patents Act is powerful enough.

That follows last week's landmark high court ruling [noted by the IPKat here and by the 1709 Blog here], which forced BT to cut off access to Newzbin2, a site found to be infringing copyright "on a grand scale".

Cable's intervention comes as ministers struggle to implement anti-piracy measures outlined by the Digital Economy Act rushed through by the Labour party at the end of its time in office.

The first warning letters to be sent to Britons accused of illegal filesharing are now not due until the second half of 2012 – more than a year later than originally planned.

A series of legal challenges have meant that cutting off the internet connections of serial pirates is unlikely to begin until 2013 at the earliest.

Cable is also expected to announce a "scoping review" into the viability of a setting up a digital copyright exchange [which will "never happen", per Andrew Orlowski, in The Register], one of the key proposals of the Hargreaves report published in May – in effect kicking the idea into the long grass. ...

Would protection of parodies and spoofs
extend to humorous and out-of-context
deployment of artwork, such as an
'Opportunity Knocks' photo to illustrate
the title of this blogpost?
The government is anticipated to legislate to sweep away many of the UK's archaic intellectual property restrictions that make it technically illegal to transfer content from CDs or DVDs to other formats, such as iPods. The reforms will also make it legal for Britons to burn copies of music and video files for family members to use, and give legal protection to spoof works [They already have protection as original copyright works: this refers to protection from the owner of the 'spoofed'(?) work]. ...

Cable is expected to outline further changes to the DEA, including how costs are apportioned between rights holders and ISPs. The judicial review ruled in April that ISPs should not foot the bill for setting up an appeals body....".
Today, the Intellectual Property Office has posted on its website the news that the government accepts all ten of Hargreaves' recommendations. The full response can be downloaded, parodied and file-shared here. According to the operative parts of the accompanying press release
"... Ministers have accepted the recommendations made in an independent review which estimate a potential benefit to the UK economy of up to £7.9 billion.

... Announcing the Government's response to the review, Business Secretary Vince Cable said:
"The Government is focused on boosting growth and the Hargreaves review highlighted the potential to grow the UK economy. By creating a more open intellectual property system it will allow innovative businesses to develop new products and services which will be able to compete fairly in the UK's thriving markets for consumer equipment. 
We are accepting the recommendations and will now set about reforming the UK's intellectual property systems. Opening up intellectual property laws can deliver real value to the UK economy as well as the creators and consumers."
Among the recommendations that have been accepted are:
Get your digits exchanged here!
  • The UK should have a Digital Copyright Exchange; a digital market place where licences in copyright content can be readily bought and sold. The review predicted that a Digital Copyright Exchange could add up as much as £2 billion a year to the UK economy by 2020. A feasibility study will now begin to establish how such an exchange will look and work. The Government will announce arrangements for how this work will be driven forward later in the year [This Kat bets it will cost more to run, in terms of setting up and administering the system, legal advice and uncertainty among rights owners and prospective users, than it will ever save or earn -- unless it could conveniently have extraterritorial effect so that holders of copyright licences who put licensed material online won't end up being sued in France, for example, for copyright infringement]. 
  • Copyright exceptions covering limited private copying should be introduced to realise growth opportunities. Thousands of people copy legitimately purchased content, such as a CD to a computer or portable device such as an IPod, assuming it is legal. This move will bring copyright law into line with the real world, and with consumers’ reasonable expectations [Whether this proposal is enacted or not is unlikely to make much difference in terms of the £7.9 billion potential boost to the British economy, since it only legalises what people already do and don't get sued for]. 
  • Copyright exceptions to allow parody should also be introduced to benefit UK production companies and make it legal for performing artists, such as comedians, to parody someone else's work without seeking permission from the copyright holder. It would enable UK production companies to create programmes that could play to their creative strengths, and create a range of content for broadcasters. [While the Kat is pleased with this, he wonders how much of an economic impact it's likely to make. Are there any sums? How much is spent in negotiating licences to parody a work under the existing law?]
  • The introduction of an exception to copyright for search and analysis techniques known as 'text and data mining'. Currently research scientists such as medical researchers are being hampered from working on data because it is illegal under copyright law to do this without permission of copyright owners. The Wellcome Trust have said that 87 per cent of the material housed in the UK's main medical research database is unavailable for legal text and data mining, that is despite the fact that the technology exists to carry out this analytical work. [The recommendations don't explain what exactly is meant by this term, so readers should refer to the original Hargreaves review, which they may find more helpful than the more technical Wikipedia entry for it]
  • Establishing licensing and clearance procedures for orphan works (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes. []
  • That evidence should drive future policy [this isn't a finding, but a mantra which has been chanted regularly since the Gowers Review in 2006]- The Government has strengthened the Intellectual Property Office's economics team and has begun a programme of research to highlight growth opportunities. One report has already shown that investments made by businesses in products and services that are protected by intellectual property rights (IPRs) are worth £65 billion a year [This isn't evidence, this is speculative maths. The government should make it plain that it is willing to entertain factual evidence even if it is presented by representative bodies and make it plain that it won't be barred from consideration as an exercise in "lobbynomics". Some groups -- Small and Medium-Sized Enterprises among them -- don't have the resources to spend their time endlessly compiling evidence for government reviews, reports and initiatives].
Alongside the Government response, a new intellectual property crime strategy [which in the long term is probably far more important than the headline-hitting news about home copying] and international strategy for intellectual property have been published.

The crime strategy outlines how the Intellectual Property Office will continue to enforce IP crime issues domestically. Counterfeit goods often use other company’s trade marks or infringe their copyright, which can lead to financial losses. The international strategy sets out the UK's five year vision to get the international IP framework in the best possible shape to support innovation and growth. Patent backlogs cost the global economy up to £7.4 billion a year" [This Kat has always taken a cynical view of assessments of how much the patent backlog costs the global economy -- though that's not a reason for leaving things as they are. Patent Prosecution Highways, shared examinations, and applicants filing more intelligible applications can all contribute to this].
This Kat will be pleased to hear readers' responses. He plans a follow-up -- and he won't be surprised at all if his fellow Kats plan to do some blogging of their own on this hot topic.

Some landmarks in the Land of Digital Opportunity
Ofcom's first consultation on the "three strikes" approach to file-sharers here
Proposal on how to split enforcement costs between ISPs and copyright owners here
Attempt by BT and TalkTalk to get a judicial review of the Digital Economy Act 2010 here
Newport State of Mind here and here

6 comments:

Anonymous said...

Does the UK Government at long last see sense?

To quote what David Pogue wrote in the July issue of the Scientific American: (http://www.scientificamerican.com/article.cfm?id=the-perils-of-copy-protection )

"Even the music industry came to realize that copy protection makes life miserable for the honest customers while doing absolutely nothing to stop the pirates."

Whether copying is prohibited by law or prevented by technical means makes in practice no difference to the honest user. Irrespective of whether or not the proposal, if enacted, "is unlikely to make much difference in terms of the £7.9 billion potential boost to the British economy" (as the Kat put it), the fact that those of us who (presently illegally) copy legally bought music from one medium onto another need no longer fear getting a warning letter through the post must be a good thing in its own right (the fact that at present no one gets sued is in my view not enough for genuine peace of mind - it could change tomorrow!).

AndyJ said...

@Anonymous. Although de facto the law says format shifting is illegal, the BPI have publicly stated on several occasions that neither they nor their members will pursue consumers who do this for their own personal use. I hope this provides some peace of mind while you are waiting for the legislation to be changed!

Dr Michael Factor said...

Does the IPKAT really think that the Superhighway contributes to the backlogs?

Even I am not that cynical!

See http://blog.ipfactor.co.il/2011/06/25/israel-and-us-patent-offices-announce-a-superhighway-but-so-what/

Jeremy said...

@ Michael
You don't understand! The word "this" applies to getting the international IP framework in the best possible shape.
If he had meant that the Superhighway contributed to the backlog, he wouldn't have written "this" -- he'd have written "that" :-)

Anonymous said...

From Anonymous
@AndyJ

Rumours have it that U-turns exist ... :-)

Anonymous said...

"That evidence should drive future policy" would indeed be innovative for the government. The traditional goverment practice was akin to the Red Queen's philosophy in "Alice Through the Looking Glass": "Verdict first, trial later". First you decide policy, then you get your civil servants to data mine the official government statistics to extract the data that supports your policy.

It used to be an exercise at the Civil Service College to divide classes into two groups, give each a statement that directly contradicted the other, and get them to extract evidence from genuine government statistics to support their respective statements.

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