stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Lobbynomics: The Biased Survey

In his report, Professor Hargreaves bemoaned the ‘lobbynomics’ surrounding copyright, calling instead for empirical evidence upon which policy should be based. Let’s look at what appears to be an attempt to gather some of that ‘empirical evidence’: an ‘Orphan Works Survey’ currently being undertaken by the Collections Trust and Strategic Content Alliance.

In 2009 the Collections Trust and Strategic Content Alliance produced a pump-it-up report called ‘In from the Cold’ to plug their apocalyptic demand for exceptions to copyright to enable them to profit commercially from the orphan works in their custody, and to license all of modern culture to the general public. To hell with its creators and rights-holders and their careers and livelihoods, eh?

Problem is, their assertions lack credibility, so they have to big them up with concocted ‘evidence’. How do they go about it? The way everyone else does, with an online survey, and then advertise it the way everyone else does, by tweeting it, and getting their pals at the Intellectual Property Office to re-tweet it for them:

"RT @CollectionTrust: The Strategic Content Alliance is re-running 2009's 'In from the Cold' research into Orphan Works. Have your say now -"

There are rules for conducting surveys intended to produce reliable, objective data. A primary rule is not to write introductory text and ‘leading’ questions in such a way that the responder is led towards returning particular answers. The survey must be impartial, in other words. With that in mind, we invite you to consider the introduction to ‘Fill in our orphan works survey for the chance to win a Kindle’:

  • 'Orphan works (works for which the rights holders are unknown or cannot be traced) represent a significant barrier to education, research and innovation. Their management requires disproportionate amounts of public funds at a time of austerity, and significant difficulties of tracing rights holders results a potential black hole of 20th and 21st century content.' There’s nothing quite like telling your respondents what to think, is there? This paragraph alone should invalidate the whole project. Disproportionate when compared with what? Also: 'barrier' to what, exactly? In what way?
  • 'We need your help in building the evidence base to support you to deliver digital content more efficiently and effectively,’- So you make your assertions to Government without an evidence base? Isn’t this what Hargreaves called 'lobbynomics'?
  • ‘…we think it is important to provide policymakers with empirical evidence on which to base decisions rather than lobbynomics.’- It is, and in this biased survey that is exactly what you are not doing.
  • 'In the recent Independent Review of IP and Growth, Professor Ian Hargreaves stated that the Government “…should begin by legislating to release for use the vast treasure trove of copyright works which are effectively unavailable – “orphan works” – to which access is in practice barred because the copyright holder cannot be traced. This is a move with no economic downside”.' - No it isn't. That claim has already conclusively been debunked. One of the many economic downsides is lost tax revenue for HM Treasury as a consequence of lost or undervalued license transactions of copyright material.
  • Many other countries already have solutions for orphan works.' - Which countries? What solutions? A few do; but not many, and their 'solutions' are not comparable to Hargreaves' proposal. And what, exactly, is the 'problem'?
  • 'The European Union is also proposing a Directive on Orphan Works.' - It is, and again it is barely comparable to Hargreaves' proposal.

Let’s analyse some of these survey questions:

  • The definition of 'orphan works' is elastic and imprecise: 'works for which the rights holders cannot be traced or are unknown' - Who has tried to trace them? Why? wWhen? How? For what purpose? - Q13
  • Respondents are not asked to explain how they arrived at the figure for the proportion of orphan works in their collection; what type of evidence are they using? - Q14
  • ‘Please provide an estimation of the direct costs involved in rights clearance (fees paid to rights holders for any permissions required) in euros' - Q24 - What’s this doing in here? By definition these are not orphan works. Why should rights-holders not be paid reasonable, directly negotiated fees for the use of their copyright work?
  • ‘Please provide an estimation of the indirect costs (eg staff time associated with tracing rights holders and/or seeking any permissons required) in euros' - Q25. Over what period of time? In relation to how many works, of what kind? For what projects?

'We know what a chore survey completion can be, but we think it so important to provide policy makers with empirical evidence on which to base decisions rather than ‘lobbynomics’ we implore you to complete the survey.'

The results of this survey are to be treated as 'evidence'? 'Empirical', yet? And they are not a lobby?

It tells you something when the august cultural heritage organisation members of the Collections Trust, Strategic Content Alliance and their fellow-travellers have to sink to such ludicrous survey bias in order to concoct 'evidence' to shore up their fragile assertions. That, or they really are so clueless in their ivory towers that they simply assume everyone thinks this way.

In Stop43’s experience it's six of one and half a dozen of the other. We’ve been to meetings and heard statements uttered that would leave most creators speechless. We’ve been interviewed by professors of copyright who had no idea what image metadata was, had never seen image file metadata, were astonished to see the BBC's stripping of it demonstrated, and were speechless when confronted with the power of Picscout. They act as if none of this existed, and so lobby for 'a 21st century digital copyright regime' accordingly. The level of practical ignorance in IP academia is truly astounding.

The road to hell is paved with good intentions. There have been other instances lately of politicised academics twisting data to fit arguments, with the best of intentions. That's not the way to do science, and it's not the way to gather statistical data or ‘empirical evidence’.

If the cultural heritage sector is so confident of its case, it ought to be capable of running an unbiased survey. It isn't. CEPIC have just complained about Ben White of the British Library misrepresenting their involvement with ARROW at the BIS Select Committee hearing at which Stop43 also spoke.

And Finally...

There are going to be the usual unforeseen consequences of what the Cultural Heritage Sector are lobbying for; what Donald Rumsfeld might have referred to as the ‘unknown unknowns’, except that they are ‘known knowns’ if anyone can be bothered actually to ask creators and take note of what we say:

‘Why doesn’t the survey attempt to find out what the impact of orphan works legislation on libraries and museums would be, in terms of depriving them of access to works whose authors fear that they may orphan them? Or of making access to those works much more expensive to take account of the orphaning risk? Or of depriving all of us of valuable new works because the authors either are too afraid to distribute them, or don’t bother to produce them in the first place because they know they will be stolen?

Is it really in the interests of cultural institutions to undermine the cultural sector, just for the sake of promoting state sponsored theft of a few existing works? - Simon Crofts, photographer and ex-international lawyer.

‘It seems to me that a large proportion of those who use intellectual property, in my case photography, and the academics and bureaucrats attempting to dismantle copyright protection, have no idea of the consequences of what they are proposing.

I am already changing my business to reduce my dependence on digital distribution of my work. With the threat of losing the benefit of all the work that I have done and all the work that I will produce in the future I am returning to paper in terms of prints, books and magazines. I am very far from alone amongst creative businesses in distancing myself from the medium that you wish to promote.
Far from stimulating digital commerce, your intentions are driving away quality and originality and will reduce the choice of work available.- Peter Bowater, Fine Art photographer.

‘I am a photographer and publish my work as postcards and books. My local research library have asked me to donate a set of my postcards to their archive. Let’s assume we are talking about 2,000 images which are also my best selling images and earn my business enough to employ five staff. Suppose I retire and sell the business. Any buyer is going to want to have the rights to continue using my images for a reasonable time into the future. Lets say 25+ years. Perhaps after my death.

‘If the library digitises my work and puts it on the web it will immediately open it up to infringement. While I may have no objection to the library keeping physical copies I would have to restrict their digitisation to maximise value in what I can get for my business. Actually, because libraries are not listening to photographers’ concerns, I no longer trust them. I will probably decide not to donate a set of images to them anyway.

This same research library published a list of about 100 paintings the county own which they referred to as ‘orphans’. A search on Google established that one of the painters had been dead for over 100 years so was no longer in copyright. I knew that the library had easily cleared permissions with another painter on the list over 10 years before. Yet another had only died a few months before and was still alive and in the local phone book when the list was first compiled.
The truth is that some curators want Orphan Works legislation to cover up their own incompetence.’ - Bob Croxford, Atmosphere Picture Library.

If the Cultural Heritage Sector gets its way it won't matter if Bob donates his postcards or not. All the library will have to do is go to the local shop, buy the postcards, and digitise them under an Extended Collective Licensing scheme designed to facilitate mass digitisation projects. It will then stick them on the Web and destroy the value in those images that currently supports his five staff. Bye bye, business, and bye bye the tax income the Treasury derives from it.

And we thought ‘Digital Opportunity’ was a plan for growth?