Evidence, copyright enforcement and self-regulation

Mandarin admits ORG got it right about opaque evidence

This morning the Business, Innovation and Skills Committee began another evidence session looking at the Hargreaves Review of Intellectual Property and Growth. Among the four panellists in the morning session were Baroness Wilcox, the Minister for Intellectual Property, and Adrian Brazier, a senior civil servant from DCMS. You can watch the session here.

The hearing started with a positive discussion of our work (read our original post here) to reveal that the Government holds no evidence on the effects of copyright infringement online, or of the effectiveness of different ways of dealing with it. Mr. Brazier said that we ‘had a point’ about the ‘opaque’ evidence used in the Digital Economy Act, and that the methodologies behind the evidence used in the Digital Economy Act was not publicly available – or indeed available to the Government.

He admitted that they should have commissioned more evidence, and that they were ‘left making the best brick with the straw available’. He even suggested ORG ‘have a fair point’ that not all infringement is economic bad – suggesting even that there is industry has evidence that shows ‘tasting before you buy’. He suggested this added weight to Professor Hargreaves’ recommendation that future evidence is rooted in sounds evidence.

This is great news. DCMS should be applauded for this stance, which hopefully marks a commitment to an evidence-based approach to enforcement. It stands as a vindication of ORG’s – and others’ – consistent arguments about the strength of the evidence used to justify enforcement measures, and the need to focus far more clearly on understanding the nature of the problem at hand and what is an appropriate response to it.

But it wasn’t all good news this morning.  Mr Brazier revealed that later today rights holder groups will meet search engines, facilitated by the Minister Ed Vaizey – in a similar fashion to ongoing talks about website blocking (for the latest on these discussions see our post here) – to discuss what search engines can do to downgrade certain results and promote others.

Details are sketchy, as they unfortunately tend to be in such matters at the moment. However, some familiar problems arise. Who adjudicates on what counts as a site or search result worthy of action? With what authority, and using what evidence? What recourse is there to proper due process?

The signs aren’t great that the right problem is in focus. Mr Brazier suggested that the search and infringement problem is evident from typing ‘mp’ into Google.  The first result given, he revealed, is ‘mp3 converter’.

Now, this may or may not tell us something about the relative popularity of mp3 converters and Members of Parliament.  But it suggests nothing about what action search engines must engage in to boost the creative industries’ digital businesses. One reason, aside from how useful audio converters can be, is the Government has so far supported Hargreaves recommendation for a new exception to copyright for format shifting which would make most conceivable use of an audio converter perfectly lawful.

Mr Brazier then suggested that work with search engines would focus on the ‘top 10, 20, 30, 40 or 50 sites that cause most economic damage’. But DCMS have told us they don’t have evidence to back that kind of analysis up. So what are they basing these judgements on?

Once again there are concerns about self-regulation and the process for determining procedures that affect the free flow of information. Self-regulation isn’t necessarily bad, and the Internet is not absented from the rule of law. But there are obvious risks when the relationships involved in a self-regulation scheme, for example between rights holders and search engines, affect basic freedoms and rights, and where those interests are not reflected in the process. This applies to work with search engines and other developing schemes, including relationships between industry, police and payment services to cut off financial support for sites allegedly involved in infringement.

The groups discussing these ideas *must* be broadly constituted, including voices that can adequately reflect civil society, consumer interests and legal experts.  We should not be entrusting decisions affecting the free flow of information online just to the relevant industry groups. If the Government are facilitating the downgrading of certain sites or results, it is critical at least that the criteria and evidence used to make such decisions are transparent.

This is especially so where the Government takes an explicitly ‘hands off’ role. With no evidence to hand, what kind of scheme between industries is the Government hoping to see emerge? What would they consider to be enough, or appropriate, or proportionate?

It must be time for policy making on this to happen in a transparent way that reflects the legitimate freedom of expression and due process concerns. That can be the only way to develop self-regulation schemes. Due process is not an optional extra.

We’re asking for more details about the meeting and what is being proposed. Updates as we get them.