Hargreaves Review of Intellectual Property

Written evidence submi tted by Open Rights Group

• Open Rights Group welcomes the findings of the Hargreaves Review and the Government's broad acceptance of its 10 recommendations.

• By recognising both the rights that creators have over their work and the limits and exceptions to them, the review sets out a blueprint for a 21 st Century copyright policy that will help the UK be a leading digital, cultural economy.

• Recommendations to place a raft of new exceptions to copyright into law should be followed as a matter of urgency. In particular Open Rights Group supports the recommendation for a new exception for parody, satire and pastiche.

• These reforms do not p have to come at the expense of creators' well-being or their right to remuneration for their work.

• The Government should follow through on it's commitment to the findings of the review. This is an important opportunity to update the UK's approach to copyright so that it facilitates cultural and economic growth. Without it, copyright laws will continue to be a drag on both.

Open Rights Group was founded in 2005 by 1,000 digital activists. We have a core staff backed by an expert Advisory Council, including MPs Julian Huppert and Eric Joyce and leading figures from the media, technology and creative industries. We now boast 22,000 supporters and nearly 2,000 paying contributors. We are the UK's leading voice defending freedom of expression, privacy, consumer rights and creativity on the Internet. We campaign to change public policy whenever citizens' or consumers' rights are threatened.

Open Rights Group submission to the Hargreaves Review focused on digital copyright and emphasised three things. First, that policy needs to establish a better balance between the legitimate protection of IP and the appropriate flexibility. Second, that there is a need to challenge the assumption, widespread in policy making to date, that stronger protection and enforcement of IP equals greater innovation and growth returns in all cases. Finally, that policy needs to do better at ensuring the interests of consumers and citizens are respected through an appreciation of the effects of copyright on human rights, creativity and consumer rights [1] .

In this short submission, we wish to emphasise our strong support for the findings of the review and the Government's response to it, and take the opportunity to highlight brief notes on two of the recommendations in particular. We hope to see the Government take forward the Hargreaves review findings and put its recommendations into policy as soon as possible.

The Hargreaves Review findings and Government response

Open Rights Group warmly welcomed the findings of the Hargreaves Review of Intellectual Property and the Government's broad acceptance of the recommendations. We believe the Government's commitment to 'to have measures in place by the end of this Parliament that will realise the Review ’ s vision' should be applauded, and will lead to significant benefits to the UK's economy, creatives and consumers.

Professor Hargreaves' report recognises both the rights that creators have over the works that they create, and the limits and exceptions to those rights. New technology gives us incredible opportunities that should mean greater access to, manipulation of and learning from information. The review demonstrates that we can allow many new, beneficial uses of works to happen without harming the creators' livelihoods or the creative industries.

Policy has tended to focus almost exclusively on enforcement. The result is that the exceptions and limitations to copyright in the UK do not promote the widest range of economically and socially useful uses of work possible. It has also meant that there has been little from policy makers to ensure that markets for digital content are functioning efficiently in the digital age.

The UK has simply not grappled with the question of how to pursue these aims at the same time as ensuring respect for creators' rights and their ability to be remunerated for their work. Professor Hargreaves shows that it is possible to have more flexible rules to maximise the value society can get from works covered by intellectual property at the same time as sustaining flourishing IP industries. This should be applauded.

By recognising both the rights that creators have over their work and the limits and exceptions to them, the review sets out a blueprint for a 21 st Century copyright policy that will help the UK be a leading digital, cultural economy. The Government is right to follow it.

Evidence and IP policy

Open Rights Group is particularly pleased to see the criticisms of previous policymakers for ignoring evidence and making policy on faith rather than facts. A commitment to evidence is to be welcomed and must be an essential part of IP policy making. It would count as a huge step forward.

As we set out in our submission to the Hargreaves Review, one of the clearest examples of the absence of a robust evidence base to past IP policy is the economic impact assessment for the Digital Economy Act. It features references to statistics that are not publicly available, which are given preference for no stated reason and whose methodology is not discussed. There is an absence of any serious critical analysis and a failure to connect evidence with policy choices taken.

The impact assessments are not of an acceptable standard to sup port an Act of Parliament. Is it right that Professor Hargreaves' review draws lessons from this and other similar examples?

This is not a problem limited to the UK's IP policy making. EDRi, the European umbrella body for digital rights groups, point out in their shadow IP strategy in May this year:

" ...for example, that, on 17 May, 2011, a search of the ec.europa.eu web domain finds 39 different references to the widely discredited 2008 OECD BASCAP study on " the Economic Impact of Counterfeiting and Piracy " and no references at all to either the 2011 Social Science Research Council study on " Media Piracy in Emerging Economies " [1] or the 2009 Dutch government funded IVIR study on the Economic and cultural side effects of file-sharing on music, film and games. " [2]

Similarly, Europol chose to advise the EU that EU-wide awareness raising programmes are required, inter alia to inform " illegal downloaders unaware of the links to organised crime, " without providing any reference or analysis as to how/if/why this might be the case. On the other hand, when the SSCR investigated this issue, they found that, in reality, no " systematic connections to drug trafficking, prostitution or other major features of organized crime. " [1] "

Claims about the impact of digitisation on creators, creativity and the creative industry must be supported by robust evidence. Policy that responds to it must be evaluated and supported by similarly clear, transparent and robust evidence. Policy to date has failed to meet these standards. There is no doubt that digitisation has had a serious effect on the creative industries. Yet to date the nature of this problem has been over-stated and mischaracterized a deeper understanding of creativity and creative markets in the digital age will not only improve the quality of policy making but is the only way to avoid either bias or the appearance of it.

Setting out the standards to which evidence that wishes to influence policy should meet is one important step we support. We also welcome the suggestion that the IPO could work with organisations who may be able to contribute evidence to help them develop methodologies and ultimately data that is of a standard worthy of informing and influencing public policy debate.

Implementing the recommendations

Following the publication of the Hargreaves Review, Open Rights Group asked a number of key stakeholders to submit their thoughts on how the ideas in the Hargreaves Review should be taken forward.

The subsequent series of essays 'Hargreaves: From Paper to Policy', featured contributions from former IP Minister David Lammy MP [1] , the Chief Executive of Featured Artists' Coalition Mark Kelly [2] , Chair of the Adelphi Charter John Howkins [3] , and Director of Government Relations for Ericsson Group Rene Summer [4] . (The full set of contributions is available on the Open Rights Group website) [5] . All of the contributions broadly welcomed the findings of the review, even where they recognised that more needed to be done to finalise the details of the recommendations.

There was broad support for the Digital Copyright Exchange, an expanded range of exceptions and proposals to deal responsibly but boldly with orphan works. New exceptions for activity such as data and text mining, format shifting and parody, satire and pastiche would unlock a eat range of useful activity that is currently stifled by over-regulation. We look forward to submitting further evidence on these exceptions in future consultations. We would like to raise two points here where we believe comments may be helpful at this stage.

The Digital Rights Exchange

Open Rights Group welcomes any initiative that helps the UK's creative industries take full advantage of digital technology and the internet, and has consistently supported innovation and fair and open markets for copyright material. The Digital Copyright Exchange (DCE) as proposed by Hargreaves has some potential for bringing greater efficiency to the digital content market, but both its design and eventual operation will need very careful consideration if it is to achieve its aims.

In particular ORG is concerned that any registration requirement should be a last resort and risks undermining creators who do not have the support of commercial enterprises, or whose intention is to create for other than simply commercial reasons. Establishing ownership of, and identifying contributors to, collaborative Open Source, or Creative Commons licensed work will be difficult, but it would be retrograde to use mechanisms intended to help manage orphan works to undermine collective and grassroots creativity. A DCE should have a fair chance to prove that it can efficiently serve creators and the market before additional registration incentives are considered.

A DCE should not automatically mean that those who choose to register their work forfeit their right to privacy or their ability to set their own moral or commercial terms for the use of their work. ORG believes that a DCE which protects individual creators while at the same time helping businesses find the creative works that they need is both possible and desirable.

Parody

An exception to copyright for parody, satire and pastiche is of crucial importance to facilitate a richer cultural environment, more creative commercial opportunities and a greater capacity for meaningful political engagement and campaigning. It would benefit authors, publishers, broadcasters, museums, musicians, comedians, and film makers, and be of equal importance for amateurs and professionals alike.

Works of parody, satire and pastiche mock or criticise constructively – the law should be facilitating these legitimate aims, not preventing them. And such works do not harm the market for the original work. For example, rapper Chamilionaire attributes the success of his song " Ridin ’ Dirty " to a parody by Weird Al Yankovic called " White and Nerdy " .

As Consumer Focus make clear in their analysis of the current legal status of parodies, Courts' have recently taken a narrow view of what is to be considered permissible reuse under the current law. There is ample evidence that this is actively discouraging and restricting the creation of parodies, satire and pastiche.

The most well known examples are perhaps the series of takedowns of parodies of the film 'Downfall' [1] from YouTube, or the problems that the creators of the infamous 'Newport State of Mind' video encountered. The latter involved a parody of a famous Jay-Z song, and was removed due to a copyright complaint shortly after it began to attract widespread attention.

The videos may be available now online. But the works were considered illegitimate in the eyes of the law. Their removal, however temporary, is a clear demonstration of the inadequacy of legal protection for these types of work, and in the case of the 'Newport State of Mind' video effectively destroyed the ability of the video's creators from fully reaping the financial and cultural returns from their creativity.

Furthermore their continued availability online is down to the persistence of people uploading the videos, the logistical problems of continually removing them, and the whims of rights holders deciding to pursue them for infringement or not. Hoping that the relevant rights holders either choose not to or fail to take advantage of an absence of protection for parody, satire and pastiche is not a sufficiently protective environment for the encouragement of legitimate, inventive creativity. This kind of work only contributes to our cultural conversations and some innovative creators' commercial opportunities and should be promoted not stifled.

There are other effects on freedom of speech from a lack of protection for such works, beyond hurting musicians and film makers. Greenpeace recently parodied Volkswagen ’ s popular ‘ little Darth Vader ’ advert. Their video uses the same theme and imagery but frames Volkswagen as the evil Galactic Empire, intent on destroying Earth with its VW-branded Death Star. The motivation was Volkswagen's opposition to European legislation that imposes limits on CO2 emissions, with the parody suggesting that the company ’ s claims of being ‘ eco-friendly ’ are dishonest.

Greenpeace ’ s video was removed from YouTube just as it was gathering momentum and, in the parlance of such sites, was 'going viral'. This followed a generic copyright complaint from Lucasfilm. The complaint took down Greenpeace International's whole YouTube account, because of the many translated versions of the video ran foul of YouTube's 'three strikes' policy on infringement. Two weeks later the video was returned after a 'counter claim' by Greenpeace. But this not only robbed the campaign of momentum and temporarily removed all of their videos from the site, but left Greenpeace vulnerable to direct legal action from Lucasfilm. [1] This is a crystal clear example of how an absence of a parody, satire and pastiche can restrict important social commentary.

When there is no explicit protection for this class of works, these creators are at the mercy of the 'take down' procedures of content platforms and rights holders' willingness to pursue them.

Just because the UK has an impressive history of comedic output does not imply that copyright laws sufficiently protect the ability of inventive comedians to create better, funnier parodies and satires from the material they see around them. Creators of parody face too much uncertainty as to whether their works will be pursued for infringement, or taken down from a hosting platform such as YouTube. This is having an active chilling effect and is restricting many activities that we should be encouraging, whether amateur creativity, commercial publishing or campaigning.

Carving out explicit exception in copyright law for works, commercial or otherwise, of parody, satire and pastiche will create the legal certainty for creators that their work is legitimate. Doing so will create an environment ripe for much greater creative and commercial activity and can only enrich our cultural life. There is a clear need for this legitimate form of cultural reuse. Open Rights Group looks forward to continuing to highlight the need for this new exception in forthcoming consultations.

Following the findings

This is the latest independent review of evidence that has recommended serious reforms of copyright. It has also managed to establish broad support from across a number of sectors. We hope that this opportunity will not be missed. We suggest that the policy direction the Government has taken is the right one, and that support for the recommendations will lead to significant enrichment for the UK, both culturally and economically.

5 September 2011