Hargreaves Review of Intellectual Property

Written evidence submitted by Scott MacGregor

I am writing to register my grave concerns relating to the possible implications of new proposals made by Professor Ian Hargreaves in his recent review into Intellectual Property rights. Some of the proposals he has made threaten the very future of the arts in the UK and I urge the committee to reject wholeheartedly the proposals re: Orphan Works in particular.

1. Background

2. Onus must be on protecting the creative talent

3. Moral rights of artist EU wide and how this contrasts with the proposals

4. Sanctions against those found maliciously doctoring works to create "Orphan Works"

5. In whose interest are these proposed changes being made?

6. Practical considerations for a global industry. Are these changes practical? What are the real implications on the individual artist?

7. Unscrupulous industry operators may use this legislation as an excuse for immoral practice.

8. Legal implications from a Human Rights perspective. Can reducing UK citizens Human Rights in direct comparison with those of other EU states stand up to future legal challenge? If there is any doubt then your responsibility to the UK taxpayer should be given serious consideration versus the perceived benefits to the special interest groups lobbying for these changes? 

The artistic community in this country is already having a tough time adjusting to the greatly reduced funding opportunities now available as a result of HM Government’s widely publicised austerity measures. Against this backdrop, this review appears to be coming at completely the wrong time. Artists need all the assistance they can get at the moment just to keep their businesses operating; the proposed changes are the moral equivalent of going through the pockets of someone lying helpless in a coma. [1]

The onus of any legislation chance must be to protect the creative talent in this country. The recommendations of this report do not do this. Rather the vested interests of a few proprietary media organisations, which seem keen cut corners and exploit those lacking the resources to defend themselves, would appear to be the sole beneficiaries. This is morally wrong and must not be allowed to happen. [2]

The convention across the EU at present is that the moral rights of authors are automatically granted. Under current UK law, this is an automatic right granted to all UK citizens. This must not be allowed to change. There is no need for it to change and anyone lobbying for such an amendment must have an ulterior motive. Why would anyone want to erode the moral rights of UK Citizens v's our EU counterparts? Are UK based artists not worthy of this right any longer? These moral rights should be made un-waivable as they already have been right across the EU. The right to be identified as the creator of a work should be an absolute, the law should prohibit any person or organisation from requiring that the creator waive their moral rights. It is illogical to bring forth legislation for the licensing of orphan works when the law as it stands has no provisions which will prevent or significantly reduce the creation of orphan works. [3]

Artists need protection more than ever now that we are living in the digital age. We require the introduction of sanctions against those found to be removing digital copyright information from digital works. This is a fundamental gap in current legislation that requires attention far more urgently. The onus is on the artist to prove that removal of digital copyright information from a work has been done with intent to infringe before it can be recognised by the courts as an offence under current UK legislation. Yet worldwide, every day, millions of digital works are having their digital copyright information maliciously stripped rendering these works as orphans. This is morally wrong, it is the equivalent of physically removing a signature from a painting, an act that all would agree was reprehensible. Yet Professor Hargreaves, knowing this, has still recommended the commercial exploitation of orphan works. This will only make it more difficult than ever for creators to sustain a successful.[4]

A pertinent question to ask must be "Why make this proposal to allow Orphan Works to be used for commercial purposes?" There is no proven need for orphan works to be commercially exploited, and let us not forget that Professor Hargreaves himself proposes that copyright law should be evidence driven. There is no published evidence that shows that UK industries are in any way disadvantaged through being unable to commercially exploit orphan works. Yet the proposal is still included in Professor Hargreaves review. This contradictory position suggests that either the report or its findings are fundamentally flawed or there must be some other agenda being pushed that the author feels merits him ignoring his own advice. [5]

Another thing to consider is that registering creative works at a national level is completely impractical in today’s global market. It will undoubtedly lead to anomalies of the type already exposed by the US system of copyright registration where creator’s remedies for infringement are compromised if they have not registered that work in the USA. If every country were to go down that road, as could happen, creators would need to register their work in every single country, with the obvious costs in time and expense of doing so. What would be the benefit of burdening our creative community with this additional requirement? If registration is inevitable then it should be a global system. Such a universal system already exists and is supported by the PLUS Coalition . If anyone advocating registration can come up with a logical explanation as to why a global system should not be introduced then I would expect their position to be robustly challenged. [6]

As things stand the technology exists to remove digital copyright metadata from a creators work, not credit them, and require creators to waive their moral rights or risk losing a contract, assign their copyright or lose a contract, all of which impose grossly unfair terms on the creator. This is something that requires to be addressed. It is of far more importance to the creative industry than the main thrust of this report which would appear to be no more a veiled attack on the artistic community in what appears to be no more than a "rights grab". [7]

Finally an important point to consider is that artists have human rights – something which appears to have bypassed Professor Hargreaves. He seems to have wholly ignored the subject or at the most given it very little consideration. This leaves the door open to future legal challenges should the need arise. I refer you to the United Nations position on the matter :-

United Nations Universal Declaration of Human Rights Article 27 (2) states:

1 Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2 Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Note also that a recent UK court ruling ( 20thC Fox vs 'Newsbin2' ) established that -

Copyrights are property rights protected by Article 1 of the First Protocol of the European Convention on Human Rights , as also expressed in Article 1 of the First Protocol of the Human Rights Act 1998 ;

Piracy of copyrighted work is a breach of the copyright holder's human rights; the copyright holder is therefore entitled to legal redress;

and, because 'so far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with human rights', legislation drafted and enacted subsequent to the enactment of the Human Rights Act 1998 must also be read and given effect in a way which is compatible with human rights.[8]

5 September 2011