Friday, 2 November 2012

More on digital copyright exchange(s) et al

This posting records - as well as my notes allow me to do so - the question and answer session that followed the IBIL Hallowe'en seminar last Wednesday. The chairman, Sir Robin Jacob, prefaced it by remarking that one effect of the hub and the Observatory would be to reduce the number of works that actually were orphans. In response to a question from the floor about the duration of copyright protection - making it shorter would remove many orphan works problems - he told the audience that the oldest work held by the British Library still protected by copyright dates from 1874 - and not long ago it had been 1862.

Sir Richard Arnold asked a question which highlighted the difference between the "limitations" approach taken in the abortive US legislation and the "permission" approach taken in the EU directive. The public sector, and public interest bodies, are the beneficiaries of the Directive: but an institution such as the British Library would find it unacceptable to do something which is unlawful, protected only by a limitation on the remedies available to the copyright owner. Better that they operate within legal permissions - or, to use the trendy phrase as Maria Martin-Prat did, "safe harbours". [I think this proposition should become known as Arnold's Principle.]

Carol Lee, a director of ALCS, was aggrieved that neither Hargreaves nor Hooper had much to say about authors. Hooper claimed that the hub would be good for the little guys, but there would be disputes, a matter being addressed by the steering group (or whatever term was used for the body dealing with implementation of the idea). The quality of data on who owns what is poor, and in the digital age there can be no excuse for this.

Shira observed that there is a list in the back of the Directive that gives an indication of where to look in the course of a diligent search, adding that had the US Copyright Office been required to produce the guidance mentioned in the abortive legislation it might have included a Google search [one might even imagine that a Google search alone could one day be considered exhaustive].

In reply to a question from Jeremy Phillips about anonymous photos of cats, Graeme made the observation that silence on the part of an author does not indicate acquiescence. Maria added that were that to be the case the directive would amount to compulsory licensing. And Richard Hooper pointed out that although it is an offence to strip out metadata, thus removing ownership information, newspapers do it all the time with images.

Google made another appearance, with someone [my notes don't record who] saying that access to authoritative ownership information is fundamental to the proper operation of their takedown procedure [and I made a mental note to check whether they had taken down something I gave them notice about a couple of days ago]. Of course (as someone else whose identity Peter failed to note said), having such an authoritative source would defeat many of the excuses and justifications for copyright infringements.

In reply to another question, Richard Hooper explained that the Hub would not be a building, just a website, and it would not compete with those who connect with it.

Tom Rivers asked about extended collective licensing, observing that an essential pre-requisite for it is collective licensing. Often, he said, people do not want to license their copyright collectively, but if they could do this they would undermine the whole idea of licensing for mass digitisation. Maria pointed out that extended collective licensing (ECL, a new abbreviation that is becoming common currency) allows an opt-out for copyright owners, which is what distinguishes it from compulsory licensing.

A propos something which I didn't note, two final comments from members of the panel which deserve to be recorded even if I have lost the context ... Graeme Dinwoodie commenting on the fact that there is a great deal of paternalism in copyright laws (citing the US provisions on reversions), and Richard Hooper saying that complexity provides excellent protection for the "big guys", and drawing parallels with the way the complexity of the financial markets allowed the global financial crisis (or GFC, an shorthand expression which seems to be current in Australia only but which ought to be more widespread) to catch everyone by surprise including those who were supposed to understand what they were doing (he mentioned, though he did not pose, the twin questions "have you ever met an intelligent banker?", and "have you ever met a banker who did not think he was intelligent?")

Given that note-taking is an imprecise science, and my memory an increasingly unreliable piece of equipment, readers are invited to comment on, add to and correct this posting. Please.

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