Taking on Hargreaves’ ‘Digital Opportunity’

If you are interested in copyright or IP then today’s publication of Professor Ian Hargreaves’ Independent Review of Intellectual Property, ‘Digital Opportunity’ is something of an event. Ever since David Cameron announced the review in November there’s been an incredible sense of buzz and excitement, and more than a little debate. Now it’s finally in our hands. And after an initial reading, it looks very promising indeed and congratulations are due to Professor Hargreaves andhis team for putting it together. It should add up to a bold design manual for a 21st century IP policy.

Here’s a brief overview after an initial read, particularly focused on copyright policy.

In short, the review suggests lots of badly needed reforms to broaden exceptions to copyright. It recommends that policy follows evidence and criticises previous efforts for failing to do so, and for ignoring consumers. And in general, the review shows that we can create more flexible rules that maximise the value society can get from works covered by intellectual property at the same time as sustaining flourishing creative industries. Those aims are not irreconcilable. The most concise statement of this direction comes very early on:

Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.

The review rejects, then, the notion that stronger, stricter IP rules always mean greater economic and social benefits. There are some specifics I’ve drawn out so far:

Allowing more useful things to happen: In what might be seen as a ‘deregulation’ of copyright, the review sets out the need for a number of ‘exceptions’ that will allow various forms of useful activity that would otherwise be stifled. For example:

Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving.

The means videos like Newport State of Mind are less likely to be unnecessarily removed, that archivists can take care of more of our cultural heritage, and that shifting your music onto mp3 players from CDs would be legal.

Fair use: A lot of attention has been given to the notion of ‘fair use’. A general fair use rule was never on the cards legally because of how EU copyright law works. And at the same time, the idea of ‘fair use’ has been inaccurately caricatured as being about simply taking other people’s work for free. That obscured many of the important activities that exceptions or fair use allows people to do – for example archivists storing cultural artefacts or researchers finding new ways to mine information.

The review shows that the principle underlying both fair use in the USA and the copyright exceptions regime we have in the EU is to stimulate as much useful activity as possible around a given work. The recommendations should help achieve this aim, and show that doing so will only enhance the creative economy, not damage it. 

Evidence and policy making: The report repeatedly emphasises the need to base policy on sound evidence, and knocks previous efforts for failing to adhere to robust standards of evidence. It is pleasing to see the excellent SSRC report ‘Media Piracy in Emerging Economies‘ receive significant attention in the review (Open Rights Group, with LSE Media Policy Project, recently held a seminar with two of the authors, Joe Karaganis and Pedro Mizukami). 

The report also criticises the extent to which particular lobbying groups have held a disproportionate say over policy making:

“In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes.”

Strong stuff. Along similar lines, Professor Hargreaves suggests that consumers and non rights holders need to be given far more prominence in the copyright policy debate.

Licensing reform: Finally, there is a strong call for a licensing body that would help get more content used and economically exploited more easily. That should help creators, rights holders and consumers and would be a big step in helping creative industries continue to adapt to the digital age.

So Professor Hargreaves has drawn us all a blueprint. It should lead to a change of direction in policy making on IP not only in the UK but at a European level, where many decisions that affect our IP framework will be taken.

The difficult bit now is making sure IP policy follow it. This is one more evidence-based review calling for a change of course. Most famously the Gowers Review in 2006 made a series of similar recommendations that were ultimately dropped. There are early signs that Ministers are backing the findings. In the meantime, I suggest you take some time out to read the report itself. We’ll digest it properly over time. We’d love to know what you think.

You can read Open Rights Group’s submission to the review here.