Digital opportunity missed

on 18 May 2011. Posted in General

digital-opportunityBernie Corbett responds to the latest government-commissioned review of intellectual property, Digital Opportunity, by Ian Hargreaves

This one was going to be different. Unlike the stillborn Gowers Review, unlike the arthritic staggerings of the Intellectual Property Office, unlike the endless procrastinations of the European Commission, unlike the opulent time-wasting of the World Intellectual Property Organisation . . . the slightly distinguished former newspaper editor Ian Hargreaves was going to sort out all the intricacies and frustrations of copyright law in his, er, five-month review.

It was predictable that the result would be a feeble non-event, and so it has proved. The abandonment of US-style “fair use” is welcome, although hardly earth-shattering since everyone except David Cameron always knew it was impossible under existing EU laws.

Whatever he is a professor of, Hargreaves demonstrates that it is not history or law with his ignorant jibe that today’s copyright laws are 300 years old, archaic and “obstruct innovation and economic growth”. In fact the present international copyright regime, to which the UK is and will remain fully signed up, is a little over a century old but has proved marvelously adaptable and with simple, logical updates has taken in its stride the development of the gramophone, cinema, radio, television and home recording.

It will prove equally stable and adaptable to the digital age, and in fact all that Hargreaves is proposing are a few tweaks to enable that process. Hargreaves himself concedes, a little grudgingly, that “sales and profitability levels in most creative business sectors appear to be holding up” in the worst recession since the Wall Street crash.

Even his tweaks are off the mark. While Hargreaves seems to realise that frequent claims that illegal downloading costs £1 billion a year, or that 40 per cent of the holdings of the British Library are “orphan works”, are wild and unsubstantiated, nevertheless he has not bothered to commission any research to establish the true position – surely a prerequisite for devising reforms?

Hargreaves sensibly notes that it is ridiculous for it to be illegal to “format shift” a CD or DVD to play on your smartphone or iPad, pointing out that it is legal in most of the rest of Europe. But other EU countries charge a tiny levy on computer equipment, mobile devices etc., which is used to pay writers, musicians and other creators (some of this money actually reaches Guild members via ALCS). But he sees “no economic case” for such a levy in the UK. So consumers will be given a free ride while creators will receive not a penny more.

Hargreaves bemoans the UK’s “stringent” laws preventing parody. Has anyone ever noticed this alleged problem before? The prof has been persuaded that the collections of the UK’s great libraries are rotting away because curators are prevented from digitising them. Has anyone ever objected to the BFI digitising and rescuing a single disintegrating reel of nitrate stock, regardless of who owns the rights?

The closest thing to a grandiose plan in the Hargreaves Report is the establishment of a “Digital Copyright Exchange” to be up and running in 18 months to act as a "one-stop shop" for copyright clearance.

We are asked to believe that every kind of creator, collecting society, publisher, producer, TV company, etc., etc., will happily bury their lifelong conflicts, jealousies and rivalries and collaborate on making their carefully protected “intellectual property” simply and easily available to all comers, cheap or free, and all in a little over a year? I am not holding my breath.

And if the exchange is ever set up, how much creators’ cash will be swallowed up in software, hardware, office blocks, mission statements, risk assessments, executives, managers, administrators, accountants, lawyers, etc., etc., before one red cent gets paid to a writer, actor, musician or painter? How will the Digital Copyright Exchange work out how the income from a TV programme or theatre play should be shared out among the writer, the performers, the director, the designer, the producer, Uncle Tom Cobley and all? This will be a bureaucratic albatross around all our necks.

This proposal, like most discussion of copyright in the UK and indeed globally, has the hallmarks of being based on the special case of the music industry, with its millionaire icons, and catchy jingles and cosy cartel of unions, professional associations, recording companies and collecting societies, with the false assumption that the collaborative rights involved in a film or a TV programme, or a book or an oil painting, can all be handled in the same way as a pop song. Such thinking is doomed to failure.

Oh, well. Here’s to the next government review of copyright in two or three years’ time.

Bernie Corbett is General Secretary of the Writers' Guild of Great Britain

Update: See also the response from the Creators' Rights Alliance (to which the Guild is affiliated)