Memorandum submitted by Digital Content
Forum (DCF)
INTRODUCTION
The Digital Content Forum (DCF) welcomes the
Committee inquiry into the challenges and opportunities for the
creative industries arising from the development of new media
platforms.
The DCF forms a two-way conduit between industry
and government to gather views and input into policy-making processes.
It goes further to broker relationships, develop shared knowledge
and undertake activities to promote innovation and excellence
in the content sector. It operates as a professionally managed
network of members, to which it delivers value through representing
their interests and views on a broader scale. By aligning complementary
activities within the sector, it promotes co-operation amongst
trade associations and businesses, enabling them to fulfil their
own objectives.
Digital content industries provide one of the
great success stories of Britain. At the heart of the sector lies
a diverse range of companies that combine creativity, innovation
and application with new modes of production and distribution,
ensuring that the content they produce is relevant to consumers
in a digital age. And the future for such a "converged"
industry appears strong even in a challenging business environment.
New forms of digital content are appearing as traditionally divergent
industries come together. In this context, understanding of common
issues such as skills transfer, regulation, Intellectual Property
and innovation are critical for the success of the sector.
The DCF membership includes trade associations
and representative organisations from digital and traditional
media industries whose business interests lie in the creation
and commercial exploitation of digital content. Current membership
includes representation from the music, film, web design, internet
publishing, computer games and advertising industries as well
as publishers, TV producers and others.
Ultimately, DCF believes that consumers and rights
holders share the same objectives, involving affordable access
to a wide range of content to satisfy effective demand for consumption
across an ever increasing number of delivery platforms and devices.
The successful use of new technologies (or "new media")
embracing delivery platforms, electronic rights management systems,
and technical protection measures will help to support these ambitions,
stimulating new business models and creating opportunities for
business to offer more choice to the consumer/citizen.
This choice is proving increasingly important
for the UK economy. Creative Industries are recognised as one
of the economy's fastest growing sectors, contributing over £53
billion to the UK in 2002, accounting for 8% of GDP; supporting
1.9 million jobs and growing at an average of 6% between 1997
and 2002, double the rate of the economy as a whole.
Impact of recent and future developments in digital
convergence and media technology
A. Media Policy for the publishing sector
must increasingly take into account the way in which the industry
interacts with other creative industry sectors, particularly those
providing other information society services. Access to the internet
and online services is providing consumers with information search
facilities at the touch of a button. This allows publishers to
provide links to detailed information on topics which might not
have been possible within the editorial constraints of a traditional
magazine. Options for readers can be developed using on line technology
which provide greater choice over the way that consumers may wish
to discover and research information available through the publication.
Easy access to archive articles and information being made available
on line also provide opportunities for consumers to research background
and learn more on specialist topics using services which they
trust and are familiar with.
B. Digital convergence may mean that individuals
and businesses will receive an increasing number of creative industry
goods and services in digital form, using digital transmission.
However if the services are to remain varied, stimulating and
interesting, the divisions between the creative industry sectors
will remain important in both regulatory and intellectual property
terms.
C. The European Commission's latest study
into the publishing sector must be based upon a fully up-to-date
concept of the publishing industry.
D. Digital technology, and the opportunities
which it affords for business and consumers, has also brought
into focus the vital importance of maintaining an effective legal
framework for the protection, licensing and enforcement of intellectual
property rights. It is crucial that this importance is understood
and appreciated across government. Cross departmental initiatives
such as the IP Crime Strategy and the recent announcement by the
Chancellor concerning the Gowers review into the UK's intellectual
property framework are welcome. Continued close links with representatives
across the creative industries is vital if these initiatives are
to work effectively. It is hoped that the Committee will endorse
and encourage this.
E. Technical protection measures and rights
management information systems are central to enabling digital
technology to provide increased choice and opportunity for both
consumers and business.
F. The DCF believes that the legal protections
for "Digital Rights Management" already recognised in
law at both European level and within EU member states should
be maintained, in order that industry can develop and offer an
increasingly diverse choice of products and services for the consumer,
including on line and digital publications.
Effects of unauthorised reproduction and dissemination
of creative content, particularly using new technology; and what
steps can be taken—using new technology, statutory protection
or other means—to protect consumers.
A. Government should support improved education
and awareness about what "intellectual property" actually
is, and why it is important to them. In this context it is important
that people understand better how intellectual property is really
relevant to their lives both culturally and potentially economically.
A good example of the need for education and awareness concerns
the real scope of products which might fall under the generic
description of "Digital Rights Management". The DCF
has recently set out its views on this topic in its submission
to the All Party Internet Group. Such education will help ensure
that consumers are better informed about the ways in which such
products can work to improve efficiency, and provide for consumer
choice.
B. Copyright exceptions and limitations
are applied in law only in special cases which do not conflict
with a normal exploitation of a work or other subject matter and
do not unreasonably prejudice the legitimate interests of a rights
holder. This flexible test has worked well to enable and accommodate
recent rapid technological developments and should continue to
be recognised and observed.
C. No specific right for libraries to circumvent
technological protection measures is necessary in the light of
the discussions which are taking place between representatives
of both libraries and rights owners, who recognise the mutual
interest in ensuring the right environment to stimulate creativity
and invest in new work in the future.
D. Rather than new rules extending the grounds
for technical protection measures, and other DRM solutions, to
be overridden in the interests of access specialist groups, voluntary
systems backed by copyright owners must be allowed to develop,
bearing in mind that it is in the commercial interests of publishers
to ensure that consumers are not alienated, and that effective
demand for their products and services is maintained.
E. The market for DRM solutions is a nascent
one. There are few nascent technologies for which there are not
initial technical problems. Government and Parliament should continue
to monitor developments in the marketplace, and the way that new
technical protection measures and rights management information
systems are brought to market, but recognise the careful balance
of interest established by the framework already provided for
under the EC Copyright Directive.
F. Digital technology, and file sharing,
have brought with them opportunities for the unauthorised use
of copyright works, including articles and magazines, at levels
which would have been unthinkable of 50 years ago. The speed and
anonymity of access to unauthorised material in the on line environment
has provided real challenges to all sectors of the creative industries,
including the magazine industry. The valuable work of the IP Crime
Strategy and its links with industry through the National Intellectual
Property Crime Group should be noted and supported.
G. Allocation of resources by Trading Standards
and other authorities for enforcement of copyright remains a concern.
But the harm being caused to the economy as a whole through unauthorised
use of intellectual property is now being recognised though the
cooperative work of enforcement agencies and industry. Implementation
of section 107A of the Copyright, Designs and Patents Act to give
Trading Standards Authorities a duty to enforce copyright offences
recognised in section 107 of the Act remains an important outstanding
issue. The Committee is urged to support implementation as soon
as possible. Balancing action for enforcement with the education
and awareness campaigns about the value of copyright and other
intellectual property will be important.
The extent to which a regulatory environment should
be applied to creative content accessed using non-traditional
media platforms.
A. The DCF supports the current review of
the Television without Frontiers Directive. However, the DCF believes
that broadcast services, which are licensed, enjoy a unique position
in our information society. Regulations that apply to push-services
are proportionate and necessary solely within that context. Such
a regulatory regime does not incorporate unlicensed pull-media
such as website publications, and should continue not to do so.
B. The DCF does not believe there are grounds
for any extension to a Directive such as TVWF if such extension
is counter to the principle of proportionality, and such measures
would be beyond those which are the minimum needed to achieve
the objective of the proper functioning of the internal market.
In this respect it is welcome that the latest proposals for amending
the TVWF Directive recognise that the Directive does not cover
electronic versions of newspapers or magazines.
C. DCF believes that the existing derogated
regulatory and self-regulatory regimes in Member States for print
media are wholly appropriate and proportionate to extend the responsible
approach of the paper-based print publications to that of the
online media.
D. The E-Commerce Directive Article 3 Paragraph
4(a)(i) already contains suitable provision for derogation such
that Member States may not restrict the freedom to provide information
society services from another Member State except where such measures
are necessary for:
"... the protection of minors and the fight
against any incitement to hatred on grounds of race, sex, religion
or nationality, and violations of human dignity concerning individual
persons."
E. The E-Commerce Directive and the regulations
implemented within the UK as a result of this are important for
the proper functioning of the developing Internal Market in e-commerce.
The ability for new businesses to operate on line without the
level of regulatory oversight which applies to the operation of
television and radio broadcasting services in the UK has already
encouraged diversity and choice of new services for consumers.
However, the way in which the Directive applies horizontally across
different areas of law such as defamation and contempt needs continued
review.
F. Overall the DCF believes that the existing
copyright and other intellectual property regimes within the EU
provide for a carefully developed system of rights and exceptions
which it would be wrong to alter by changes to Articles 12 to
14 of the Directive.
G. The meaning of "hyperlink"
and "location tool service" is not defined by the Directive.
The Member States which have applied additional provisions to
the concept of liability of hyperlinkers and location tool services,
may find that they have failed to take account of the way that
the concepts have evolved since the Directive was adopted. The
range of information services which might include hyperlinks and
location tool services is increasing. Some of these may promote
unauthorised or other illegal use of copyright or other material
in which intellectual property rights exist, to the overall disadvantage
of the publishing industry.
H. The harmonisation intended by the Directive
has already been challenged as a result of some Member States
already having included liability limitation cover for hyperlinks,
location tool and content aggregation services. This lack of uniformity
would be aggravated, if the United Kingdom enacted its own additions
to the liability provisions of Articles 12 to 14 at this stage.
I. The evolving e-commerce market place
needs to distinguish responsibilities for different types of hyperlinks,
location tool services and aggregation services, taking into account
the economic intentions of those providing the links or services,
the practical business procedures which are developing and the
importance of the protection and respect for copyright and intellectual
property rights.
Whilst wishing to ensure that copyright, neighbouring
rights and other intellectual property rights are left outside
the scope of any further review of the E-Commerce Directive the
DCF would hope that consultation concerning the wider issues raised
by the Law Commission in its Scoping Study 2 relating to defamation
and the law of contempt will help to show how limitations of liability
in these fields warrant further discussion for automated information
links or results of searches. The way in which US law has developed
to distinguish intellectual property law provisions from the provisions
limiting the liability of information content providers for certain
other civil liabilities should be considered in this context.
Where the balance should lie between the rights
of creators and the expectations of consumers in the context of
the BBC's Creative Archive and other developments
A. The work of the Creative Industries Forum
on Intellectual Property has been important in enabling not only
the weaknesses within the current legal framework to be considered
and addressed, but also in securing recognition from the government
about the importance of helping people, both users and creators,
to appreciate the value of "intellectual property" as
central to the future health of creative industries within the
United Kingdom. This education will play an important role in
enabling the right balance to be maintained between the rights
of creators and the expectations of consumers as more and more
new services are launched in the digital environment to run alongside
more traditional media.
B. The copyright regime is flexible enough
to allow owners to decide upon whether material can be made available
for others to adapt and develop.
C. The Creative Archive is a new initiative
which should provide a choice for right owners (and through this)
for consumers. However it is important that such initiatives are
properly understood and promoted in context. Publishers and other
rights holders have no long term incentive to alienate legitimate
consumers, or to stifle growth of effective demand for new business
models. It would be unfortunate if those who argue that the system
for recognising and rewarding the creators of copyright works
is outdated, succeed in promoting the current debate as one of
rights holders versus consumers—this is not the reality.
D. Copyright exceptions and limitations
have evolved over time, but the underlying principle established
in International Treaties, and more recently within Article 5.5
of the Copyright Directive, must continue to be applied and supported.
E. This provides "Exceptions and limitations...
shall only be applied in certain special cases which do not conflict
with a normal exploitation of the work or other subject matter
and do not unreasonably prejudice the legitimate interests of
the right holder".
F. Since the existing regime had enabled
rights owners to choose whether they wish to license the use of
their works by means of sharing licences such as those developed
by Creative Commons, it is unnecessary to make legislative changes
to permit them.
The DCF welcomes the opportunity to respond
to the Committee's inquiry and would be happy to provide further
evidence in support of the points raised in this response.
February 2006
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