Monday, 16 May 2011

Hargreaves and the copyright Big Bang

I wonder whether the Hargreaves review will touch on any areas of intellectual property law apart from copyright . Today's report in the Financial Times focuses on the copyright area.
A revolution in copyright law could make the UK as important a centre for the distribution of digital content as it became in financial services after the Big Bang, the government will be told this week.
Great! Look at what the Big Bang has left us with. The newspaper tells us that the report will recommend the establishment of a digital rights exchange, which it describes as an "a one-stop online shop for clearing the use of copyright content ". A similar proposal was made in the course of the consultation on the Carter report  although the final report did not adopt it.

What we have heard about the review so far has all suggested that it will focus on introducing a broad fair use right to replace, or complement, existing fair dealing provisions in copyright law. A clearance centre seems to be a much more balanced approach to the matter. when the Prime Minister announced the review last year he said that Google could never have launched in the UK because of the copyright regime, but it does sometimes seem that Google's  way of dealing with copyright law is to steamroller the rights of common rights owners and try to sort out the legalities later, as the Google Book Agreement illustrates. The FT reports the experience of Spotify and Last. Fm, UK based digital media start-ups, which it says have long complained about the difficulty of securing rights to music and movies for online distribution. If a way could be found to help them do that will more easily, it would be a good thing.

Film studios and record companies, along with a what the FT refers to mysteriously as "other  content owners" might not agree. The whole history of copyright in recent years has been about their failure to adapt their business models to the new environment. When artists like Radiohead bypass the record labels and sell directly to their fans by digital download, the writing must be on the wall. What do "content owners" (including publishers) bring to the party these days? Not a lot.

And why should copyright owners, especially those who have merely inherited their assets, retain the power not merely to exploit the copyright they control but also to prevent its exploitation altogether? Maybe a clearance centre would help to remove this chilling effect, too.

A clearance centre needs some form of compulsion attached to it. In the 1988 Act copyright largely changed from being an exclusive right to being a right to receive remuneration for the exploitation of one's work. At the same time the introduction of moral rights gave creators the ability to protect their reputations. Perhaps what we had in 1988 was an incomplete jigsaw, or perhaps subsequent technological developments have meant that the pieces do not fit together continuously. Either way, it looks as if the Hargreaves Review might help make the picture a bit more complete.

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