Monday, 30 May 2011

The Hargreaves Review in detail: Copyright exchange

The Review concluded that there were too many patents about - it didn't say there was also too much copyright, but I see this as a big problem. And the solution is a higher standard of originality, as promulgated by the Court of Justice in the Infopaq case - applying the "author's own intellectual creation" test across a far wider range of copyright works than we ever thought it was supposed to apply to.

That, however, does not feature in the Review, although it might provide a solution to the Google Problem that lies at the heart of the Review. Instead, it addresses the problem that the "creative industries" face by proposing a mechanism for granting licences - a copyright clearance centre.

First, though, what is this rubbish about "creative industries"? A company cannot be creative: only a human being can do that. Still less can industries be creative. Our copyright law properly gives protection to the commercial interests that turn one or more persons' creative work into a paying proposition - record companies, publishers, film studios, broadcasters - but in no way are they creative, and for that reason their rights are defined differently and protected for a shorter time. Computer game companies, web technology companies, app developers - they take the work of creative people and commercialise them. They are engaged in publishing. They might bring together teams of talented people who together will be more creative than they would be alone, but that does not shift the centre of creativity - that remains, unchangeably, with the individuals.

That said, the prospect of a Digital Copyright Exchange is exciting and inventive - a creative solution to the problem. However, it is not entirely novel, as the last Government tried to encourage industry to form a comparable Digital Rights Agency. Given the jealous way in which IP owners guard their rights, it might be like asking turkeys to support bringing Christmas forward, but if implemented properly the idea could provide a robust and reliable means of identifying, clearing and enforcing rights in digital content. I can't see it working well without an element of compulsion - well, without a lot of compulsion - though that could come from the market rather than from the law. It means that copyright will become less of an exclusive right, more a right to receive remuneration for the use of one's work It might also be a step towards a copyright registration system - which could be another useful device for cutting back the excesses of a system that is simply protecting too much. Another matter that fell outside the Review's terms of reference.

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