Getting the copyright balance right | Kingston Publishing: inspiring future publishers

I came across this posting on the Kingston Publishing (Kingston University, that is, and publishing course rather than publishing house) blog and wanted to share it. It's by Samantha Perkins, an MA Publishing student at Kingston, and is based on the Charles Clark Memorial Lecture given at the London Book Fair. The talk was presented by Richard Hooper CBE, Chairman of the Copyright Hub Launch Group. A very useful review of what is going on in that corner of the copyright world, and a suitable memorial to Charles who did so much in this field.

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.

Digital Copyright Exchange(s), The Hooper Report and Orphan Works

On Wednesday, the Institute of Brands and Innovation Law (IBIL) of University College London held a seminar to discuss these topical copyright issues. With some material added by me, Marta Safin reports ...

The event was opened by the Chairman, Professor Sir Robin Jacob who compared orphan works' authors to property owners who do not maintain their properties and asked whether they should have the right to their work if they 'cannot be bothered to be found'. He drew a comparison with the landowners' neglect leading to the creation of rights of way or squatters' rights.

Position in Europe

The seminar progressed to a brief summary of the current position in Europe by Maria Martin-Prat,  the Head of Unit 'Copyright' in the IP Directorate of the European Commission. Maria introduced the new Directive 2012/28/EU, adopted on 25th October 2012, on 'certain permitted uses of orphan works'. She described the digital technology as the start point of the development of the Directive, as trying to locate the author who cannot be found seemed an increasing problem, which the Directive is aiming to solve. In Maria's opinion the individual works are not the problem; it is the mass digitisation and mass use of collective works which requires proper licensing which needs facilitating. The Directive is the first piece of copyright legislation with a cross-border effect and the Member States were given 2 years to implement it.

Position in the USA

The situation of orphan works in the US was presented by Shira Perlmutter, the Chief Policy Officer and Director of International Affairs for the US Patent and Trade Mark Office. She described it as 'work in progress', whereby the USA are starting over again, after the first proposal did not pass 4 years ago. The draft law applied to all types of orphan works and focused on the limitation of remedies. It required that a 'diligent effort reasonable in the circumstances' is used: the Copyright Office would have been required to publish guidance on what would constitute diligence. If the owner was found (or "showed up", as she put it), they should be paid reasonable compensation.

The Hooper Report

The next panellist to speak was Richard Hooper CBE, the author of the Hooper Report, who started off by saying that his research concentrated on copyright licensing and processes and organisation of copyrights rather than copyright changes and commercial rights or rights' owners. For the first 4 months of his research Richard looked at streamlining of copyrights' licensing and establishing key existing issues experienced by people working in the industry. The second 4 months of work was spent on trying to find solutions for the identified issues. He chose to focus on the proposals for a 'copyright hub', which has 5 main purposes:

1. It will help people to find their way through the complexity of copyright

2. It will educate people about copyright

3. It will be a place where people are able to register their rights

4. It will be a place for automated copyright licensing system for a high volume, low transaction cost copyright licensing

5. It will act as an authority where prospective users of orphan works can go to demonstrate they have done proper, reasonable and due diligence searches for the owners of those works before they digitise them

The view from the IPO

Edmund Quilty, Copyright and IP Enforcement Director, IPO, started with the Gowers Review, which had touched on the issue of orphan works, and the Digital Britain report which had made recommendations on collective licensing. He mentioned the notorious clause 43 of the Digital Economy Bill, which had been dropped from the Act as eventually passed in the "wash-up" at the end of the last Parliament. The new government had commissioned a new intellectual property review, under a different former Financial Times journalist (ex-deputy editor this time, though Ed seemed to promote him).

He then spoke about the Enterprise and Regulatory Reform Bill, which contains scheme-making powers to deal with orphan works (powers which might now come to be exercised in the course of implementing the directive) and extended collective licensing, as well as a few other copyright matters.

Sir Robin took the opportunity afforded by the need to introduce the next speaker to say that as a result of the directive there would be a registry of orphan works in Alicante, part of the Observatory, adding that he had wondered what there was to observe in Alicante.

The Academic view

Graeme Dinwoodie from Oxford University spoke of the international climate which frames the choices to be made – in particular, the requirements in Berne and Trips that there be no formalities. He reinforced the point that the new Directive reflects the 'country of origin' rule in its art. 4 on diligent search, and complies with the formalities rule from the Berne Convention. This (he noted) was often considered to be fundamental to Berne, but had only been included in the Berlin Act of 1908. Prior to that there was a “one formality” (home country) rule, and the Directive reverts to that approach.

Doing away with the need for formalities, he said, tends to damage the "little guy", because the "big guys" can set up systems to deal with the lack of information about copyright ownership. in the US system, if the "little guy" messed up he would lose copyright altogether.

Graeme pointed to the weakness of the current Directive: the fact that there is still right for compensation even for past uses which might not make it beneficial to go through the diligent searches. On the other hand, he commented on the innovative approach it takes to mutual recognition of orphan status which will be helpful to users.

Questions and answers

The panellists' presentation was followed by a Q and A session and discussion on the links between orphan works and Hooper's 'copyright hub', the practicality of implementing the Directive and the extended collective licences scheme. [I am putting this in a separate posting, as it is based on my notes of the discussion and therefore should be separate from Marta's report - Peter.]