..and Atlas Shrugged.

with 3 comments

I’m a amateur photographer. I enjoy snapping wildlife, travel scenes and catwalk shows and I hope that, one day, National Geographic will use one of my photographs on the cover of their magazine. In the meantime, I occasionally release photos under the Creative Commons Sharealike licence  so that they can be used for things like illustrating Wikipedia articles. If you go to Wikipedia, wanting to learn about the Saatchi Gallery or fashion designer John Rocca, there’s a good chance you’ll end up looking at a photograph that I took.

One of those photographs (of tomatoes on a market stall at London’s Borough Market), has proved surprisingly popular. It’s been used by dozens of people around the world to illustrate everything from blog posts and online magazines to a Texan market gardeners’ newsletter. It’s even appeared on dozens local newspaper websites across the US after it was used to illustrate a syndicated recipe column titled 20 Ways to use fresh tomatoes.

Now, I’m very pleased that this photo has been used so widely. It’s for exactly that reason that I released it under the Sharealike licence and most of the people who use my photo adhere to the conditions under which I licensed it, most notably attributing the photo to me. In releasing these photographs under the Sharealike licence, I have deliberately and consciously given up certain rights that I, as a copyright owner, am entitled to. For example, anyone can now use those photographs for commercial purposes without paying me. I have effectively waived my economic rights as a copyright holder, as well as my right to control who makes use of the image and how they do so. However, I have retained my moral right to be identified as the creator of the photographs in question (and it’s worth noting that the CC Sharealike licence deliberately and explicitly reserves that right on the author’s/creator’s behalf).

However, my willingness to share only goes so far. The images I’ve released under the CC Sharealike licence are fine for use online but they’re not of a high enough resolution to be used for print. So, if National Geographic did want to put my photograph of tomatoes on the cover of their magazine, they would need to come direct to me in order to licence the hi-res version.

There are other photographs that I have chosen not to release under a Creative Commons licence which I have, nevertheless, published on the Internet (e.g. this photo of a model at Graduate Fashion Week). If someone were to use one of those photographs without my permission, I’d be legally entitled to compensation and to injunct the offender to cease breaching my copyright. Copyright owners’ rights are recognised by most countries, and the World Intellectual Property Organisation (WIPO, an agency of the United Nations) exists to help enforce those rights internationally.

In November 2010, the government commissioned an independent review of how the UK’s Intellectual Property framework supports growth and innovation. The review was chaired by Professor Ian Hargreaves, who published his report last month (on the same day, funnily enough, that I asked Jeremy Hunt, the Culture Secretary, at Google’s Big Tent event, when the Parliamentary Enquiry into Protection of Online IP Rights would resume, a question Mr Hunt deftly avoided answering by talking, instead, about the release of the Hargreaves Report).

Fast-forward to last Thursday evening, when I attended a Coadec debate on Copyright in the Digital Age: Will the Government Implement the Hargreaves Recommendations?

I was expecting to watch an actual debate, with representatives from both sides of the table, but it was a disappointingly one-sided affair. The panel included Prof Hargreaves himself, Lord Lucas (a Conservative peer), Stefan Glaenzer (Passion Capital), Nico Perez (co-founder of Mixcloud) and Eric Joyce (Labour MP and Chairman of the All-Party Parliamentary Group on the Digital Economy). There was nobody from a music or film company, or from an appropriate industry body (such as the IFPI, BPI or MPA). There was someone from Pearson (I failed to catch his name, unfortunately) in the audience who, when called upon, stood up and spoke in support of a Digital Copyright Exchange (one of Prof Hargreaves’ recommendations), although it wasn’t clear whether he wanted to use said exchange to licence Pearson’s content to others, or licence others’ IP for use in Pearson’s publications.

Indeed, there seemed to be little attempt to address the actual question that was supposed to be debated (Will the Government Implement the Hargreaves Recommendations?). Instead, there was much talk as to why the government should implement the Hargreaves recommendations, with a hefty dose of music industry-bashing from both the audience and, to varying degrees, the panel. Nico Perez moaned about the difficulties Mixcloud had faced getting licensed to use music, Stefan Glaenzer revealed that he has a bee in his bonnet about how much it costs to buy copies of academic research or journal articles (and, incidentally, seemed to admit that the founder of Flattr, a Passion Capital investment, had a criminal background, violating copyright as part of the team behind The Pirate Bay) and much was made of the fact that copyright, as a concept, has only been in existence for the last 300 years, (as if its comparative youth in the grand scheme of human evolution should somehow render it irrelevant). I considered pointing out that many things that were not only legal, but were regarded as perfectly acceptable, 300 years ago, now carry hefty prison sentences. However, with such a one-sided audience, I decided that discretion was the better part of principle.

I was on the verge of dozing off, when Lord Lucas suddenly popped up, right at the end, and opined that the use of the proposed Digital Copyrights Exchange (DCE) should be compulsory for copyright holders and that, furthermore, any copyright holders who refused to licence their material through the DCE should lose their copyright.

Now, in my opinion, this is an incredibly stupid idea. The whole point of copyright is that you own the intellectual property you create, and you have various economic and moral rights to control the use of your IP, benefit economically from it and be identified as its author/creator. Copyright legislation is designed to protect those rights and punish those who attempt to flout them, particularly those who attempt to profit from breaches of copyright. In short, it was intended to encourage creative-types to create and ensure that they could benefit from the fruits of their creativity.

Clearly, the advent of the digital age, in which a single person can share a piece of IP (e.g. a hit song) with thousands of others, (without necessarily gaining any benefit from said sharing and, on occasion, without even realising that they are, in fact, sharing it), has resulted in some situations where the enforcement of copyright legislation has led to punishment or penalties that are disproportional to the intent, profit gained and harm caused by the infraction in question. However, to my mind, this merely reveals shortcomings in the legislation; flaws which should be examined in a considered manner and corrected where appropriate.

What Lord Lucas was proposing was a fundamental shift in copyright legislation. Right now, as a copyright holder, I have the right to decide to whom and under what terms I licence my copyrights. If Vogue were to email me and say “We’d like to use your photograph of a tearful catwalk model in a story about how designers often fail to ensure that catwalk models have the right size shoes when they strut down the runway”, I would quote a sizeable fee. On the other hand, if a group of fashion models who were seeking to raise awareness of the exploitation of young models in the fashion industry approached me and asked if they could use my photo as part of their campaign, I would have no hesitation in allowing them to use it for free. I also retain the right to refuse to allow, say, an organisation espousing political policies that I find offensive (e.g. the Labour party) to make use of my photographs. The current legislative regime provides a framework within which I, or any other copyright-holder, can enforce those rights.

Lord Lucas wants to take that right away from me. He wants to compel me, on pain of losing my rights as an owner of intellectual property, to take part in his Digital Copyright Exchange.

I have a major problem with this and I suspect that plenty of other copyright holders would also have a major problem with it. I also suspect that it would be unworkable from a legal perspective, given our international obligations under the WIPO Copyright Treaty. Even if we could somehow wriggle out of or treaty obligations, how would we deal with copyright-holders from outside the UK? Can we, from a practical perspective, force every single copyright-holder in the world to use the UK DCE? I don’t think so.

So, I decided to take advantage of the opportunity Coadec had advertised (that the evening would be an opportunity for members of the tech community to express their views) and I stood up and expressed my opposition to Lord Lucas’ proposal, forcefully and at length. In the process, I discovered that the number of people in the audience who earn money from the intellectual property they create, was approximately the same as the number of people who exploit the intellectual property created by others (as Mixcloud does) and that both numbers were surprisingly small (in fact, I was flabbergasted at how few attendees were revenue-generating IP-creators – they could be counted on the fingers of one hand). I also sought to give Lord Lucas some food for thought by equating his desire to confiscate my intellectual property if I chose not to play by his rules, to my breaking into his house and stealing his property. With any luck, he’ll think long and hard before suggesting that idea to anyone else.

I want to make it clear that I am actually in favour of the creation of a Digital Copyright Exchange (DCE), as espoused in Prof Hargreaves report (although I think that there should be a number of competing exchanges, instead of a single state-sponsored monopoly). It’s worth noting that the music industry created something along the same lines a long time ago – the PPL and PRS organisations make licensing copyrighted music easy and straightforward.

However, I don’t believe that participation in the DCE should be compulsory, in the way Lord Lucas proposes. I believe that it should be voluntary, with no penalties for non-participation – i.e. those who decide not to join the DCE should suffer no degradation or loss of their IP rights. Prof Hargreaves himself made it clear (after I’d spoken) that he was not suggesting, in his report, that copyright-holders should be compelled to take part in the proposed DCE, nor that those who opted not to take part in it should lose their moral rights.

I’m not sure where Lord Lucas got his idea from but, whether it was his own or one he adopted, he really needs to think long and hard about the potential implications of putting it into practise because it would likely turn the United Kingdom into an intellectual property wasteland. A significant (if not vast) majority of those who currently generate intellectual property would almost certainly decamp to a legal jurisdiction which offers the rights Lord Lucas would seek to take away. Such an exodus would deny the UK thousands of jobs and tens of billions of pounds of revenue.

In other words, it’s an utterly insane idea.

Earlier in the evening, Stefan Glaenzer had indicated that the “main reason for having a rights exchange is that the trade should be superfast and easy, we dont have this today” and he drew a comparison with financial exchanges. Coincidentally, I happen to have a lot of experience working with trading systems in the City and I’m prepared to bring that experience to bear on the problem of designing, implementing and operating a DCE. What’s more, I’m prepared to contribute £10,000 to get an independent, non-profit DCE off the ground. In an ideal world, those with the necessary technical skills who support Coadec, the Open Rights Group and similar organisations, would step up and contribute their expertise and effort to create an open-source platform that would enable copyright-holders to make their IP available for licensing by anyone at standardised terms. My £10k would be used to pay for the initial hosting of said platform and administrative costs such as the drafting of licences to be used by the DCE’s participants.

Do I expect this will happen? No, I don’t. Why? Well, in my experience, when you step up and challenge people to actually be the change they want to see in the world, they usually fall short of that ideal.

Personally, I love putting my money where my mouth is. It’s something I learnt while working on the trading floor: “Oh, you think X? Well, I think Y. I’ll bet you £100 I’m right.”

It’s amazing how quickly people lose faith in their convictions when they’re asked to commit more than just their voice. “You want a Digital Copyright Exchange? So do I. Tell you what, if you code it up, I’ll pay £10,000 towards the AWS hosting and legal advice. Are you in?”

I tweeted this proposal on the #coadec hashtag but, so far, nobody has expressed an interest in getting involved. Quelle surprise.

The day after the Coadec debate, it emerged that Ed Vaizey (Minister for Culture, Communications and the Creative Industries) had held meetings with representatives from ISPs and large copyright holders’ organisations at which proposals to block websites that engage in systematic breach of copyright were discussed. The Open Rights Group were unhappy that they had not been invited to these meetings.

So, in the same week, we have groups of people from opposite ends of this particular debate’s spectrum, meeting separately. At the Coadec debate, we had the anti-copyright lobby, who want to overturn our existing IP regime and severely restrict the powers copyright-holders currently have. Meanwhile, Ed Vaizey was meeting with people who represent companies that employ thousands of people and generate billions of pounds of revenue for the UK economy.

Those who represent the major copyright-holders have no interest in (or incentive to) meeting with and engaging with someone like Lord Lucas. For them, it’s a complete and utter waste of time. They would simply sit there, watching him spout his insane ideas and wait until he ran out of breath. They would then turn to Mr Vaizey and say “If you do what this man proposes, we will (a) defeat you in the courts and (b) move our business elsewhere.”

It doesn’t take a genius to realise what line Mr Vaizey would take in that circumstance. As a government minister, his constituency is far larger than just those on the far left of the debate.

In any debate, there needs to be trust and common ground. If the community that gathered at the Coadec event the other night are not able to put forward a delegation who are capable of debating this topic in a reasoned manner, they will simply find themselves excluded from the debate (and deservedly so). The copyright-holders are under no obligation to waste their time talking with people who are pushing a radical and destructive agenda, without any regard for the rights of others. All too often, it is the extremists who shout loudest and drown out the moderates who are capable of seeing and understanding both sides of the argument. If Lord Lucas is representative of the loudest voices on the opposite side of the debate from the copyright-holders, then legislators like Ed Vaizey are perfectly justified in ignoring them.

Having said that, it’s important to recognise that current copyright legislation may not protect copyright-holders adequately (given recent advances in technology) and that the proposed plans for enacting web-blocking may lack an appropriate level of judicial oversight. We are at a crucial crossroads in the evolution of IP legislation and the United Kingdom has the opportunity to take a global leadership role in this area. If the consumer rights/anti-copright movement fails to grasp the nettle today, we may rue that failure for years to come.

The paradigm in which we find ourselves today is very different from that in which our extant copyright legislation was drafted and enacted into law. There should be a debate on this topic but, in order for it to be productive, it needs to engage those who can see the bigger picture and balance the interests of consumers with those of copyright-holders, within the technological context we now find ourselves.

To paraphrase F.Scott Fitzgerald, we need people who are capable of holding two opposing ideas in their mind at the same time, while still retaining the ability to function.

Written by jackgavigan

June 26, 2011 at 8:44 pm

3 Responses

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  1. To hold two opposing/contradictory ideas whilst being convinced of the truth of both is termed by George Orwell as doublethink.

    There are those who believe the privilege of copyright is good, but that recent legislative enhancements render it unjust. That is doublethink. Either it is an instrument of injustice, or it is a natural right to be recognised by law and secured by a government the people empower.

    I suspect you’re committed to the belief that copyright is a priori good, however, there is an opposing idea that you should at least be aware of in order to improve your arguments. See http://culturalliberty.org/blog/index.php?id=276

    Crosbie Fitch

    June 27, 2011 at 8:09 pm

  2. Thoughtful post, Jack, and thanks for your participation in the event. I thought I might just provide a few short responses on behalf of Coadec:

    – I appreciate that the panel was largely supportive of Hargreaves, and that was as intended. We had an event in February at which people were able to speak to Professor Hargreaves (and other members of the review panel) about their views on copyright, and we tried to make participation in that event as balanced as possible. When the report was published, Coadec made a decision to support it and call for its implementation (you can see our blog post at http://www.coadec.com/?p=504). The purpose of last Thursday’s event was therefore not to have a debate on the substance but rather to talk about the prospects and politics for implementation. Apologies if that wasn’t clear in the publicity.

    – The point about copyright being only 300 years old, which I emphasised, was intended less to focus on the age itself than the fact that copyright and all IP are distinct from other forms of property. Property law goes back as far as codified legal systems themselves, and it is widely accepted that there is a natural justice element to it: if I have acquired possession of something legally, it’s mine and not yours, and if you take that away from me you have deprived me of it, and that is wrong. Intellectual property is a different animal, because even if you use my IP without my consent, you haven’t actually deprived me of anything: I may have “lost” the revenues I could have gained from charging you, but I still have that IP and I can still sell it to other people, so there isn’t the same concept of wrong suffered by me. IP therefore doesn’t really fit into traditional property law and never received protections under it. 18th century lawmakers recognised that this was a problem for society and needed to come up with some way to incentivise creative people, and so the stautory construct of IP law was created. By and large that’s been a great thing and has served its purpose of incentivising creation and innovation, but the point is that it must always be tested against that end-goal. Nothing in the history of IP law creates an inherent right to control the IP you produce: instead, IP law gives you certain protections because doing so is good for society, but if it’s no longer good for society, the right thing for lawmakers to do is take away those protections. (Note that I don’t actually thing copyright protection is bad for society and would not advocate eliminating it, but I do think reforms, like those proposed by Professor Hargreaves, must be tested against the social purpose of copyright rather than some imagined inherent right of content producers).

    – Given the previous point, I thought Lord Lucas’s thoughts about a compulsory exchange were a perfectly reasonable contribution to the debate. I agree that it is unlikely, due to our WIPO obligations and for other reasons, that we would be able to implement it, and we may even take the view that compulsory participation would sufficiently dis-incentivise creation and innovation that it wouldn’t be worth any benefits it created. But as a thought to add to the mix — and, more importantly, as the end-marker on a spectrum that ranges from completely voluntary participation to completely compulsory, with lots of options in between — I think it was a perfectly fair point (just as I think it’s perfectly fair for you to disagree with it).

    – You say that “the PPL and PRS organisations make licensing copyrighted music easy and straightforward.” I would suggest you run that by small businesses that have actually tried to license music from them. From all the stories I have heard, I suspect you might re-think that view.

    Thanks again for your participation. I hope you’ll come along to future Coadec events.

    Jeff Lynn
    Chairman, Coadec

    Coadec

    June 28, 2011 at 9:16 am

  3. Jeff,

    To address your points in order:

    – My disappointment had nothing to do with the fact that Coadec supports Hargreaves recommendations. I support Hargreaves recommendations. My disappointment was due to the fact that everyone was speaking at length about why the recommendations SHOULD be implemented (in between bashing the music industry) but there was nobody present to present the views of major copyright holders (in fact, Prof Hargreaves himself practically played the role of Devil’s Advocate). Nor was there much discussion about the actual, real-life practicalities and obstacles to implementing the recommendations.

    – Whether copyright protection is 300 or 3,000 years old is, in my opinion, irrelevant. The world and society are fundamentally different than they were even 50 years ago. A great deal of the UK’s GDP (and tax revenues) derive from our knowledge- and IP-based economies. Is it really in society’s interest to drive companies like Burberry, Working Title, EMI, WPP, and ARM overseas? You can argue ’til you’re blue in the face about the properties of physical versus intellectual property but I simply don’t care that much about the academic argument. I’m interested in the real world, in the practicalities of IP and copyright reform, and the knock-on effects thereof.

    – As Prof Hargreaves made crystal clear, compulsory participation in the proposed Digital Copyright Exchange is not part of his recommendations. In the context of a debate on whether the government will implement the Hargreaves recommendations, it is completely out of scope. In the wider context, it is a fringe position and one which is evidence of a failure on the part of Lord Lucas to appreciate the copyright-holders’ position or to grasp the potential implications of such an attack on their rights.

    Disparate groups are unlikely to come together to create shared value if one group stands fast on their side of the chasm, shouting invective at the far side while trying to set the bridge on fire.

    Extremists often drown out the moderates and “win-win” doesn’t happen when one side is trying to defeat the other. If you allow those on the fringe to shape your side of the debate, you have little chance of making any progress towards achieving common ground from which it is possible to build towards mutual benefit.

    That, incidentally, is why I stood up and made my point so forcefully: because I don’t want the moment of digital opportunity that we have right now to be torpedoed by people like Lord Lucas.

    – There’s a huge difference between a shop or a bar that plays music but whose primary revenue stream derives from selling shoes or alcohol, and a company like Mixcloud, whose entire business model is based on broadcasting music. Would people still visit the shop or bar if it didn’t play chart music? Definitely. Would Mixcloud exist if it had to go to every single music publisher and copyright owner to obtain a licence? That answer’s not as clear-cut.

    I support copyright reform. However, I believe that it should be carefully considered, instead of reactionary; that it should balance benefit to consumers with adequate protection of authors’ and creators’ moral and economic rights; and that the wider, indirect economic benefits of copyright protections should be taken into account when considering the societal benefits (of which, incidentally, the aforementioned economic benefits form a significant part) of laxer copyright protection.

    Each side in this debate has a variety of incremental objectives, ranging from the reasonable to the extreme. If we are reasonable, we can each achieve some of our objectives through compromise, co-operation and collaboration, such that the new regime benefits everyone. If, on the other hand, we are not reasonable, we run a very high risk of squandering the opportunity and the status quo is likely to prevail.

    In twenty years’ time, do you want to look back and think “Hah! We told them music companies a thing or two! Pity the bloody government never let us into the room, let alone take a seat at the table…”?

    Or do you want to look back and feel proud about the fact that you left the extremists on the fringe, and were willing to engage with the copyright holders and work out a solution that ultimately benefited everyone?

    The choice is yours.

    Jack

    June 28, 2011 at 10:34 pm


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