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

The Copyright Consultation: State of Play

There are ten days to go before the deadline for submitting responses to the IPO’s Copyright Consultation, which ends on March 21st. Please make your submission: they all help. Over the course of the London consultation events, all but two of which Stop43 have attended, we have watched the situation evolve. It has done so in some rather surprising ways.


At the IPO’s Orphan Works/Extended Collective Licensing event, the IPO announced to attendees that the system under consideration is modelled on that in operation in Canada. Canada has only issued 260 orphan works licences in its scheme’s 22 years of operation. Only one of these was for an audiovisual work. It has denied the issue of eight licences in that time.

There’s not much scope for ‘Hargreaves growth’ or mass digitisation there, then. The real solution, of course, is a properly constituted Digital Copyright Exchange which also authorises Cultural Use.


Touted elsewhere as some kind of universal panacea for all copyright problems, at the same event the IPO stated that only existing collective licensing schemes would be ‘extended’. There is only one collective licensing scheme for photographs that we know of: DACS’ Payback scheme for photocopying. So, under ECL you’d be able to photocopy works of unknown authors, too. And that’s all.

There’s not much scope for ‘Hargreaves growth’ or mass digitisation of photographs there either, then.

As a concept, ECL rather glaringly ignores an obvious primary property of digital networks: their ability to facilitate and log individual transactions. The Internet makes it easier, quicker and less costly to license individually in a primary way; it shrinks the scope for collective secondary licensing. ECL is anti-innovation, anti-digital, anti-competitive, and discriminates against copyright owners:

  • Anti-innovation because it precludes the development of innovative new digital market primary licensing solutions for the uses covered by ECL;
  • Anti-digital because it removes the possibility of digital transaction developments from satisfying the requirements covered by ECL, including no-fee transactions;
  • Anti-competitive and discriminatory against rights owners because it abolishes contestable markets in primary licensing for the uses covered by ECL.
ECL tries to fix yesterday’s problem, not tomorrow’s. Again the real solution, of course, is a properly constituted Digital Copyright Exchange which also authorises Cultural Use.


Probably because of the above, attention and lobbying effort seems to have shifted somewhat towards wholesale exceptions to copyright for private copying, educational use, use by libraries and archives, and so on.

Hargreaves said that the UK doesn’t make full use of all of the exceptions permitted by the EU, and that it should. He neglected to point out that the UK doesn’t provide all of the protections to authors available in other EU countries either, or that perhaps it should. In this regard, as far as authors, creators and rights owners are concerned, Hargreaves is all take and no give.

Like ECL, copyright exceptions are anti-innovation, anti-digital, anti-competitive, and discriminate against copyright owners:

  • Anti-innovation because they preclude the development of innovative new digital market primary licensing solutions for the uses covered by the exception. In a capitalist system there will be little innovation in any area where there is no money to be made;
  • Anti-digital because they remove the possibility of digital transaction developments from satisfying the requirements covered by the exception, including no-fee transactions;
  • Anti-competitive and discriminatory against rights owners because they abolish contestable markets in primary licensing for the uses covered by the exception;
  • Given that they weaken rights owners’ human rights and that alternative ways can be found of satisfying the requirements these exceptions are intended to address, under Judicial Review they are also likely to fail the 3-stage test of Proportionality.
Educational and Cultural Heritage Sector lobbyists want to strip rights owners of their property, simply to save themselves money and make life easier for themselves. In so doing they appear to have fallen prey to ‘noble cause corruption’.

At the IPO events, those lobbying for these exceptions did so on the grounds that ‘they would only bring the law into line with what everyone already does anyway’; that ‘libraries and archives require these exceptions in order to carry out their Public Service duties’; that ’copyright law must catch up with modern educational practice’; and that these exceptions must not be over-rideable by contract.

They were notably mute on the question of whether authors’ rights themselves should be over-rideable by contract, which they are, and which is in fact a huge problem for authors. They also said little about better moral rights for authors, which would in practice make their scholarly, curatorial and archiving work easier and cheaper. Stop43 wonder why not? Let’s look at each of these excuses in turn.

  • ‘Everyone already copies anyway’.
Yes, because it has become trivially easy to do. That doesn’t mean they should. The events of last summer demonstrated that it is trivially easy to loot shops if the police decide not to intervene. It doesn’t automatically follow that looting should therefore be legalised.

The IPO Consultation Document repeatedly makes the assertion, which pollutes this whole discourse, that consumers 'own' content. This is a false premise: how can we have a rational discussion on this basis? Consumers own licences to use 'content' in certain specified and limited ways; their misapprehension of this fact appears largely to be the cause of their uncertainty about copyright, and by perpetuating this misapprehension the wording of these questions does absolutely nothing to change that.

In current law, rights owners are entirely free to issue licences which permit rights users to copy or format-shift the work, or use it on multiple devices. iTunes, Amazon and Ultraviolet permit exactly that, as do some photographers. On the other hand, social and fine art photographers’ businesses and reputations for high quality ‘deliverables’ could be destroyed by an over-broad private copying exception. It’s notable that the IPO’s Economic Impact assessment documents big up the imagined gains to the economy from exceptions whilst largely ignoring the concomitant losses to rights owners.

At the Private Copying Exceptions event, the excellent point was made that this exception is supposed to stimulate growth, but as we've never had such an exception in the UK there is no data to support the assertion. However, other EU countries have such an exception: has it stimulated growth there? The IPO didn't know and were hoping we might tell them. This extraordinarily lame answer really blows the gaffe on the whole Hargreaves 'empirical evidence' posture. Perhaps the imagined economic benefit really is imaginary?

Another interesting question is that of the copyright status of a digital copy of a work on traditional media. The Cultural Heritage Sector is fond of asserting copyright over these digital facsimiles, claiming that the ‘skill, judgement and/or labour’ involved in the digitisation process justifies it. A private individual or commercial operator is capable of just as much ‘skill, judgement and/or labour’ when digitising a traditional work as the British Library; perhaps more so. Is such a person therefore entitled to claim copyright in their copy? If not, why not? And if they are, what is to be done about the proliferation of competing claims to copyright in multiple, indistinguishable, independent copies of the same traditional work? This is an absurdity, and not theoretical: the Bodleian Library allows anyone to digitise its out of copyright works.

The New York District Court found there can be no new copyright in a ‘slavish copy’. A high-quality reproduction of a piece of flat art is produced, using skill, judgement and/or labour, in order to remove as far as is practicable any distortion in the resultant facsimile image, because if you leave it in you get a poor copy. Ergo, a good copy is characterised by its lack of distortion: i.e. its lack of any new creative content. Its entire purpose and function is to be a 'slavish copy’.

The Court of Justice of the European Union says that a copyright work must be an expression of ‘the author's own intellectual creation’. Anything made with the intention of it being a 'slavish copy' of something else can never be that. A work of high technique and craft, yes. A new copyright work? No. A new copyright work must incorporate new intellectual creation.

Stop43 is in favour of digitisation of works for preservation and Cultural Use, on the proviso that it is recognised explicitly in law that no new copyright arises in the resultant digital facsimiles.

  • ‘Libraries and archives require these exceptions in order to carry out their Public Service duties.’
No they don’t. There’s absolutely nothing they are obliged to do with the rights in the objects they own that could not be satisfied by a Digital Copyright Exchange which also authorises Cultural Use.

It has become apparent that their real beef is with having to pay for anything, whether it be the costs of diligent search for orphaned rights owners, the costs of market-rate Licences to Use, or even the costs of collective licences. Using the sanctimonious argument of having a fiduciary duty to the public purse, they insist on access to the property of others for nothing. They forget that the proper use of public funds is for the acquisition, at fair market rates, from members of that very public, of the goods and services that the public, via its Government, deems it requires. That is why the public, via its Government, makes its funds available to them.

Everyone else involved in libraries and archives, from chief executives, managers, librarians, archivists and IT suppliers down to caterers, builders, architects and utility companies, gets paid at market rates for their goods and services. Apart from the requirements of legal deposit, why must rights owners provide the use of their property for nothing?

  • ‘Copyright law must catch up with modern educational practice.’
By this, the education lobbyists are referring to the use of digital whiteboards and classroom computers connected directly to the Internet, and pupils and students using the Internet for their coursework.

Plenty of creators and publishers run businesses built entirely upon creating and licensing works such as textbooks specifically for the education sector, and a variety of licensing bodies exist to provide collective licences for educational establishments to do things such as record broadcasts. In 2009, Higher Education made £60bn for the UK economy: more than the pharmaceutical or agricultural sectors. Do farmers demand the free use of other people’s property?

The true consequence of the change to ‘modern educational practice’:

In the days of blackboards and chalk, schools existed within a ‘walled garden’ in which virtually all of the copyright materials they used had been bought (the books), licensed (the films shown), or were covered by the Private Study Fair Dealing exception. Teachers wrote or drew on the blackboards; pupils copied out into their exercise books. Remember them?

Tape recorders, VHS recorders, CD players, DVD players and whiteboards paved the way to unlicensed use of copyright material. Once those whiteboards and school computer labs were connected to the Internet, all hell broke loose. The walled garden of the old school was replaced by a Google-searched free-for-all which broke the previous ties of licensing and payment between rights owners and school-based users.

Now, “everything on the Internet is free, isn't it?" as the headmistress of my daughter's primary school said to me, when I was discussing with her the school's Facebook-like 'MLE' (Managed Learning Environment) in which all the kids have home pages and compete with each other for the most hits on their page by stuffing them with cute images and clips lifted from Google Images.

Many schools and colleges have similar so-called ‘secure college study spaces’, also known as ‘virtual learning environments’ (VLE’s). Although they take a very dim view of cut-and-paste plagiarism of text from the web and have automated tools to detect it, clip art, graphics and images pulled from Google are widely regarded as fair game by most staff and students.

Colleges are businesses nowadays, and are motivated by business principles. Reducing overheads is a constant theme, so copying images from the web is a no-brainer. Teaching staff have little idea or resources for buying licences, but are now publishers within these and other learning platforms.

The result is that schools and colleges have lost any kind of real control over the copyright material within their ‘VLEs’. Rather than reasserting control, they demand copyright exceptions to make their problem evaporate, and of course an exception would enable compulsory use in which rights owners’ property rights no longer apply, and for which they won’t always receive payment.

As Robert Levine says: 'Yeah, if it's a school where the janitor doesn't get paid, where the teachers don't get paid, and where the school pays no rent – fine, you can use my book. But if they're getting paid, I as an author, want to be paid too.'

It’s become clear that the entire Creative Industries are now strongly united in their opposition to further copyright exceptions. Once again the real solution and way forward for education, of course, is a properly constituted DCE which also authorises Cultural Use, searchable by use allowed (or pre-paid), whose image search software can penetrate the ‘VLE’ firewalls to audit their content, tracking and logging transactions. Teachers and lecturers use Google Images because they can, and because they don't know any better. With access to a DCE walled garden 'Google Images' of pre-cleared material, or authorised a licensing budget per project up to a certain amount so that schools, colleges or individual teachers can acquire primary licenses, a real, equitable solution becomes available.

A DCE finally installs checkouts in the free-for-all Internet supermarket.


Only three of the events Stop43 attended reached any kind of consensus: the Collecting Societies Code of Conduct event at which we were essentially observers; the Statutory Copyright Notices event which concluded by a 2:1 majority that the IPO should not offer such Statutory Notices; and the Contract Over-Ride event which tentatively agreed that as a general rule exceptions should be be over-rideable by contract but the case should be examined for each exception individually, and that even now certain CDPA1988 exceptions have in their wording that they cannot be over-ridden.

Some very important and problematic consequences of exempting exceptions from contract over-ride were pointed out in this meeting, not least by the collecting societies. And again, we note, Hargreaves only mentions exceptions being exempt; he says nothing of the rights themselves, which creators are routinely parted from by way of onerous take-it-or-leave-it rights-grabbing contracts imposed by oligopsonistic market bullies.

The lobbyists’ argument eventually boiled down to their being subject to badly written contracts (they are mass users: have they no negotiating power or skill?) and that the variation across contract terms and conditions precludes simple, one-size-fits-all usage of their licensed assets by staff and students.

At a ministerial roundtable attended by Stop43 the IPO asserted that the no-contract-over-ride provisions are primarily aimed at libraries and their problems with access to online journals, and the plethora of contracts they must read and agree to, many of which are with foreign companies. They compared the educational contract situation to car hire: across the EU, car hire contracts are standardised and include insurance, etc. etc. whereas in the USA each contract is unique to the hire company and there are huge differences between companies' contracts, trapping the unwary. Note that this is not an argument for exemption from contract over-ride, but an argument for a standardised contract. Not the same thing at all.

Of course, along with a DCE offering standardised educational usages the proper solution to this problem is Fair Contract Law for IP, with an ombudsman to arbitrate.

You might want to consider all of the above in your submissions to the IPO.