Hargreaves IP Review

21st June, 2011

The Hargreaves Review on Intellectual Property has now reported. But its key recommendation, the worst orphan works scheme yet, was immediately followed by a European draft directive proposing legislation for a radically different approach.

Here we go again – extended collective licensing and the commercial exploitation of orphan works. Hargreaves plans, in other words, to  reintroduce the Clause 43 of the Digital Economy Bill successfully defeated by photographers last year, led by Stop 43. While Europe proposes the cultural, not commercial, use of orphans instead. Which would be readily accepted by most of Clause 43’s opponents.

Hargreaves does however bring us some good news. He proposes the digitisation of works without the author’s permission, but for preservation and conservation purposes only. Again, most photographers would accept, even welcome that. He proposes a small claims fast track for IP cases, which would greatly increase our chances of recovering small sums otherwise too expensive to chase. And he suggests Ofcom intervention in IP contracts, which is a step at least towards the fair contract legislation we all need to fight rights grabbing clients.

He also rejected demands to replace the UK Fair Dealing exceptions to copyright , tried, tested and reasonably precise, with the wide-ranging and very unclear US alternative of Fair Use. Which is very good news indeed. He does nevertheless intend to extend the scope of Fair Dealing, to permit format shifting, copying for conservation (as above), data mining, and parody & pastiche.  This last should concern any photographer wishing to preserved the integrity of their pictures.But these are all side issues compared to Hargreaves’ one Big Idea – the Digital Copyright Exchange. This grand new scheme would establish an almost all-embracing digital market place for buyers and sellers of copyright material. It envisages a register or registries of our creations ( not just photographs ) for which he drew on various ideas, including the National Cultural Archive proposal of Stop 43 (http://tinyurl.com/632c2yk ), to whom he refers in his report.

The DCE is likewise a futuristic, visionary concept with great potential for creators and clients alike  – but perversely twisted into a device for authorising the commercial exploitation of orphan works. His description of it is deliberately vague, so things are not quite spelt out, but it seems to work like this. It would be voluntary, but professionals would be expected, if not quite directed, to register their work. This would confer on them as yet unspecified additional legal protection. It would also be the place for those seeking to use orphan works to perform what’s called a “diligent search” after which, if no author is revealed, permission would be granted for commercial use.

Hargreaves doesn’t actually say that such a search of the DCE would in itself be sufficient, but the scene is here clearly set for a two-tier justice system: protection against OW legislation for those on the register, with open season declared on all the rest, millions of amateur photographs, and also professional work from all around the world. Including pictures registered with the US copyright office, which would make for some fascinating law suits and hefty fines! This scheme would be in flat contradiction of the convention of Berne, but then our Intellectual Property Office has never seemed overly concerned about that. It would also be turning the original NCA plan inside out. That ( see link above ) was intended to create a commercial market for alternatives to orphans, not to release them for sale.

Unfortunately the sale of orphans is at the heart of the Hargreaves Review. He was told specifically to make IP generate growth, and ignore all else. He then focussed on orphans, the sale of orphans, to the exclusion of almost everything else. He goes way beyond the aims of the original Clause 43, even calling orphans a national “treasure trove” which he proposes should be sold for a nominal sum! Is this really the key to unleashing the productivity and creativity of the UK’s creative sector?

This DCE could well be a case of his not thinking things through. Or, then again, of thinking things through only too far, and fast. Here’s the giveaway – ” The European Commission is currently considering a limited (and expected to be non-commercial) initiative in the area of orphan works. The UK has the chance to take a lead by implementing a flexible and comprehensive national level solution, for which there is an evident appetite from many parties “. Translation – ” Let’s sneak our commercial exploitation of OW through ASAP before Europe proposes cultural use only instead “.

In fact, Europe is no longer considering, it has proposed. And proposed cultural, not commercial use. Last month it has, as Hargreaves correctly foresaw, issued a draft directive ( http://tinyurl.com/3bnw3sz ) proposing legislation for limited, and non-commercial use of orphans. Which, except insofar as they already appear published in other works, even excludes photographs altogether. For years now Europe has been held up before us as the bogeyman – strike a UK deal accepting the commercial use of orphans, for fear of what Europe will impose. Roles are now dramatically reversed. This a warning shot across Hargreaves’  bows. Not ours. It will however take two years for this directive to become law, a two year window in which the UK could still defy Europe.

But Europe then has still worse in store. The harmonisation of copyright law throughout the EU. Whatever the result of that, it will almost certainly bury our Anglo-Saxon legacy under the far superior continental tradition of authors’ rights. This will force our government to introduce their moral rights over here. Against all the diehard opposition of the publishers and the Intellectual Property Office.As the British Photographic Council says in its reply to Hargreaves (http://tinyurl.com/5rkbhak):” What disappoints us most, however, is the complete refusal by the Review team to address the issue of the very weak framework of moral rights within this country. Creators should have an unwaiveable right to be identified as author of their works and to defend their integrity.”

Hargreaves’ excuse is that he was ask to focus strictly on economics. But what could be more fundamental to our ability to trade than the right to have our work labelled as our own? This should not be restricted to only those works entered in a DCE registry. When – not if, but when – this right belongs to all creators, the creation of orphans will recede into history. So too will Hargreaves’ orphan “treasure trove”. Then, and only then, if the link to selling orphans is severed, could the Digital Copyright Exchange become the futuristic market place which it truly ought to be for fair dealings between creators and their clients. The government is now consulting for its Communications Bill. This will include legislation on intellectual property. Obsession with orphans should be a thing of the past. Let’s hope it’s planning for the future. piece by Andrew Wiard

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