Copyright controversies

The war in the USA between the open Internet and copyright industries pushing for draconian controls took an unexpected twist in the last weeks.

The Bills – SOPA (Stop Online Piracy Act) and PIPA (Protection of Intellectual property Act) – were withdrawn. President Obama threatened to veto SOPA. Republican candidates were highly critical.

It looks like a straightforward victory for common sense: which would be an unexpected twist. Normally, copyright industries seem to cloud political judgements to an extraordinary extent. Internet activists don’t expect their campaigns to be easy or quick. Victories are often last minute, down to the wire affairs.

The proposals – for Internet censorship of foreign “infringing” websites, interference with DNS, possibly intrusion into people’s Internet traffic – were extreme.

So what changed?

It’s always difficult to know, but we can make some observations. The black out protests, adopted by Wikipedia, and companies like Google as well as activists like the Electronic Frontier Foundation, surely had a huge reach, just because the Internet has become much more embedded in our everyday lives.

Equally, the proposals from copyright lobby groups like the Motion Picture Association (MPA) and Recording Industry Association of America (RIAA) were very extreme. They’re used to getting basic agreement for a very extreme position, and bargaining downwards. A few concessions are made, but they get what they want – more or less. It causes outrage, and is often very unfair (like the rules against circumventing digital locks in the Digital Millenium Copyright Act).

The way the coverage has been did make me sit up though. The UK media covered the USA debates much more thoroughly, frankly, than they did the Digital Economy Act here two years ago. A lot of that what due to the visibility of the online protests, which reflects the higher stakes for the Internet industry, and perhaps the US public. Somehow, conventional media still thinks the Internet is “in” California.

SOPA, PIPA and our own DEA share a lot in common. There are shared approaches – attacking intermediaries rather than actual websites for instance. But most importantly, the same small group of lobby organizations push the same laws wherever they can. They hope to build up a head of steam and see the regulations put in place everywhere, because everyone is doing it – so it must be the right to do, right?

In the UK, the MPAA (the international wing of the MPA) and the BPI gave the main push. The BPI represents labels – in practice, it is controlled by the major labels. Their policy positions are essentially the same as IFPI (International Federation of the Phonographic Industry) and the RIAA. The links are close and the pushes are international.

For instance, perhaps most notoriously, Peter Mandelson made a decision to push ahead with punishing alleged UK Bittorrent infringers by shutting off their Internet after an alleged conversation with international film executive David Geffen, possibly on his yacht.

Whatever you think about copyright infringement, policy by yachting trip might well make you question quite how balanced and nuanced government policy might be.

At the time, as these cut offs and website blocking proposals were pushed through in the Digital Economy Act, many of us found ourselves being portrayed as the assassins of creativity, rogues and pirates who simply wanted to steal whatever we could. The open Internet was said to be the same thing as a free-for-all, a lawless territory that desperately needed taming. Pretty much the same arguments we heard in the USA, with SOPA.

Such is the nature of the copyright wars. Despite the very commercial nature of the problems for the book, music and film industries, revolving around licensing, availability and pricing, the debates their lobbyists induce are designed to induce moral panics and simple reactions from MPs or Congressmen. Up to now, this has helped the copyright lobby get the laws they want. But it doesn’t shed much light on the real issues.


There is one big, crucial difference in copyright policy between the USA and the UK, which is called “fair use”. The USA’s laws allow anyone to find new uses for a film, book or song, so long as they don’t endanger the original rights of the copyright holder. In the UK, in contrast, we have a defined list of possible uses – things like quoting for reviews. As technology changes, the ways you need to use a copyright work change – things like indexing for search engines, or even temporary copying – become legal in the USA through practice, tested sometimes in courts, while the in UK, they stay illegal until someone updates copyright law.

The Digital Economy Act contained precious little “reform”, but ministers and back benchers had to admit, that if you want to enforce a law, it needs to be fair, and for end users, copyright is currently not very fair at all. “Format shifting” – moving your CD tracks to your computer or iPod –is copyright infringement.

That may seem incredible: but the logic of copyright is that everything is banned, unless explicitly allowed. Format shifting isn’t specifically allowed, so it’s banned.

Music companies promise not to sue format shifters. But that doesn’t always help very much. Last year, the Advertising Standards Authority insisted that UK manufacturer Brennan warn their customers that using their JB7 MP3 player would breach copyright law. Their device is aimed at middle aged CD owners, and copies CD tracks onto its hard drive.

Brennan have understandably got upset, as their very respectable customers are highly unlikely to be a threat to the music industry, while copyright law is looking like a threat to Brennan’s business.

The right to format shift is just one example of a reasonable expectation that end users have. It was easy for MPs and policy makers to understand, though, and helped the new government to identify an area where it could make a positive difference. The Cabinet Office, looking for areas to help spur growth, commissioned the Hargreaves Review to look at Intellectual Property and growth.

The review came under instant attack. David Cameron, as he announced it, proclaimed that Google had said that they couldn’t have set up in the UK because of our restrictive copyright regime. Cameron said wanted new tech start-ups to be free of such burdens. Unfortunately, as his circle is close to people in Google, this helped copyright lobbyists portray the review as a “Google Review” aimed at “weakening” copyright in favour of US corporations.

But whatever the arguments – well-rehearsed and rather predictable – the review itself has produced some very good ideas. The government has stayed on track and seems very keen to see them into law: and the changes go much further than just format shifting.

The proposals are not, as some claim, a “weakening” of copyright law. What they are aimed at is providing more flexibility. They propose rights to parody, archive, text mine and for education and research. They are sensible and level headed. They should help students and researchers do very reasonable things, like preserve our cultural heritage and find patterns in our knowledge through automated textual analysis.

These proposals will be controversial, and publishing lobby groups will claim that educational establishments should not get all of these rights without paying. Publishers will argue that text mining, for instance, represents something they can sell rights to, and that they deserve to be paid not just once for the original books, but twice, for an extra right to text mine.

When thinking about what’s fair, you can ask yourself a simple question: would any books be written because researchers pay extra text mining fees, or would less research take place? Knowledge is the name of the game here, after all. Policy makers need to keep sight of this. Otherwise, copyright can quickly slip from a nice way to reward creators into a horribly deadening form of rent-seeking.

The dead hand of copyright law is also felt by people trying to make fun of Hollywood studios, corporations and big recording artists. Parodies like Newport State of Mind, material on and anti-Vokswagen videos by Greenpeace come under attack for using copyright material. They are pulled from Youtube, damaging our right to see them, and the critical messages put forward.

Greenpeace say that parody is a vital tool in an age of brands. Companies like Apple or Volkswagen communicate values like trust and reliability through these brands, and give themselves almost human characteristics. How else, then, should Greenpeace criticize them except by parodying their brands, and inevitably reuse copyrighted material doing so?

ORG asked campaign groups in the UK if they use parodies, and found that many do, while others feel uncertain and cautious about them, because of the copyright issues. They are all forced to take a legal risk, and break the law, if they want to use parody as a tool to criticize.

The arguments being pushed against a right to parody are pretty bizarre. Copyright lobbyists claim that, since parodies take place, there is no reason to legalise them. They claim that they licence some parodies, and deserve to choose what parodies are published and be paid for them. They even claim that political parodies are “edgier” because they break the law, and thus are more effective, so shouldn’t be legally allowed.

This can all be summed up by saying that copyright owners want complete control, at all times, and don’t care if copyright law is a muddle and broken, or suffers reputational damage. These are myopic and inconsistent arguments.

Copyright is not meant to be a tool for censorship. Currently, it is used in this way. It is small creators and citizens who tend to come off worst: but copyright law ends up looking pretty stupid too.

A big conflict that may not be resolved will be the questions around Digital Rights Management (DRM). Whatever your right to text mine, parody, archive or format shift, it is still illegal to break DRM systems. Yet many of us regularly format shift protected DVDs, for instance, using widely available circumvention tools. This is going to be one of the big questions, I suspect, that will be left as an unresolved fudge.

One thing these changes won’t do is end the arguments about copyright. That’s partly because the commercial arguments will go on, and as technology changes, so will copyright law get out of date. It’s also because our copyright system remains based on the idea of specific things your allowed to do, stated in the law. The USA has a simpler, more flexible system, that says, if what you’re doing is not damaging the copyright holder, then it’s ok. It’s up to courts to draw the lines. That allows copyright to evolve, which is the big advantage Google has.

So David Cameron’s big challenge, that copyright laws should not get in the way of the next UK-based Google, won’t be met. But, just perhaps, copyright might be less damaging to free speech, consumer rights and innovation. That can only be good news for the UK.

A version of this article was first published in Custom PC Issue 103 January 2012

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