Response to IPO “Copyright in Europe” consultation

Context

The “Copyright in Europe” consultation was aimed at developing the IPO thinking on how best to respond to the copyright debate, and involved them bringing together “a number of questions on the European copyright framework and areas that have been highlighted by the European Commission for further action.”

We submitted our response, which you can read below, on 11th October 2013.

Question 2. Of the four areas highlighted by the European Commission for their “Licences for Europe” dialogues, are there particular points that you would like to raise?

Continue to promote exceptions and limitations as a useful way to help people get the most out of copyrighted works. Exceptions are helpful in defining what counts as legitimate use of a copyrighted work, and setting out the limited instances where the permission of or payment to the rightsholder should not be required.

For instance, a parody exception helps more people be creative through their reworking of cultural works but, the evidence suggests, does not adversely affect rightsholders’ interests. We suggest that the IPO continues to examine the benefits of flexibility in copyright through exceptions and limitations.

Further general comments

1. Promote the strengthening of the creators’ position in the market

We welcome the efforts to improve the regulation of collecting societies, both through the European Directive and the approach taken by the UK Government.

We suggest that the IPO promotes the ongoing monitoring and evaluation of these initiatives, and the prioritisation of the perspective of creators’ side of the market.

In reviews and oversight of the new regulatory regime we suggest that the opinions of creators are given a priority, for example looking at whether they feel they receive sufficient information about how their rights are managed. That would mean avoiding only judging performance against whether collecting societies have met the requirements set out in the regulations, but stepping back and looking at whether those requirements and the new regulations generally are helping creators take a stronger, more informed position in the market.

We have three further suggestions for focusing future work on the position of the creator:

a. Promote mandatory ‘use it or lose it’ clauses in contracts. Such clauses could help make sure that artists’ interests are served through ownership of copyright of their works when exploitation of that work does not make economic sense to the current rights holder.
Similarly, we see a role for the IPO in pushing for more rights for creators to seek the reversion of rights when material goes out of commercial release.

b. Work to amend ‘free and forever’ clauses in social media end user agreements. The IPO has looked at the problem of creators becoming separated from their work in the context of orphaned works.

As a continuation of this work, we suggest the IPO could investigate ways to ensure that terms of use are fair and equitable for all of us when we use internet services, so that when we share our photos, our words, and our music it remains ours, to keep as private or public as we wish, and remove if we decide to. For example, a simple Code of Conduct could help people understand their privacy and data rights and copyright.

c. Explore how to give creators more information about how their works are used. We recommend that the IPO promotes the need to work with creators to look at where more information about the use of their work would be useful, and subsequently to ensure that such information is available to them. For example, this could include raw listening data from legal music services, such as streaming services.

2. Study ‘orphaned DRM’ issue

Over time, more people may encounter issues with legacy DRM systems, which may render it difficult or impossible for them to continue to use content or software that they have bought. People should not be forced to purchase content or software again simply because the DRM has become obsolete. The IPO could push for the examination of this issue and, should a significant problem be identified, for solutions to it. Solutions could include allowing people to ‘break’ DRM where obsolescence is a barrier to use, and allowing users to break DRM on out-of-copyright works.

3. Improve disabled access to copyrighted works, in particular works under DRM

There is a role for the IPO promoting Promote the accessibility of copyrighted works to disabled users. We encourage the IPO to promote the study of accessibility and how to facilitate disabled users’ access to copyrighted works.

4. Promote independent evidence.

Policy makers should be taking a lead in trying to fix the problem of finding independent evidence upon which to build policy. Too often research data is not available for scrutiny; the methodologies are not published or clear; and in such cases the research is usually funded by organisations with particular sectoral interests. Added together that has led to a lack of trust from all stakeholders in the debate of a high percentage of evidence produced in the copyright debate.

One example of research that has attracted more respect from across the spectrum of debate is the Ofcom research into copyright infringement.

We would suggest that the IPO promotes the creation of more independent, reliable evidence as a basis for decision making. A more thoughtful, principled approach from policy makers to copyright evidence is long overdue. One route to doing this could be to advocate principles that policy makers should use when dealing with evidence from stakeholders, such as:

1. The methodology should be public, or at the very least available to the policy makers to scrutinise. That will help ensure that stakeholders can check the assumptions behind research and the approaches taken to it.
2. The data upon which the findings are based should be public. That would help to ensure that claims about what research implies, or conclusions and recommendations drawn from the data, can be checked and reviewed. Further, it could help more people analyse findings and suggest future avenues for research.
3. Treat research that does not adhere to principles 1 and 2 with scepticism. This will incentivise more stakeholders to produce evidence that adheres with these principles.

5. On enforcement, ensure that respect for human rights is built in.

Policy makers have a responsibility to ensure that the enforcement of copyright takes into account of freedom of expression and privacy rights. Too often we have seen policy makers ignore this likely impact.

Measures to enforce copyright can affect these rights, for example, in voluntary or co-regulatory process when no court judgments are involved. In such situations, due process and rights of redress are absent from measures such as blocking, or the taking down content, or the suspension of domains. Policy makers should avoid creating enforcement regimes in which powers to decide what people can see and do online can be exercised on the basis of unproven allegations or insufficiently transparent legal processes.

The IPO should promote the rule of law, due process and rights of redress. We urge the IPO to make sure that efforts to enforce copyright build in respect for freedom of expression and privacy from the start, and to discourage the development of less accountable voluntary enforcement measures.