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November 28, 2012

Leeds copyright event, RSA: What users say and do about intellectual property

1. A brief introduction to ORG and its work

About ORG: a digital rights campaigning organisation. We care about the impact of technology and technology policy on our rights, on society and the public. We work across privacy, government surveillance, open data, and freedom of expression.

We were founded in 2005 and are sustained by around 1,500 paying supporters and grants from institutions like Open Society Foundation, Sigrid Rausing and Joseph Rowntree Reform Trust.

We've spent a lot of time this year for example working on the Snoopers' Charter and proposals for Internet filtering parental controls.

We just won Liberty's human rights campaigners of the year award, jointly with 38 Degrees. So we must be doing something right. And I would strongly recommend that each and every one of you sign up to become paying supporters as a matter of urgency.

This talk

In this talk I'll say that it's crucial policy makers listen to all the stakeholders in this debate, and particularly the interests of users, through the sort of work we're here to talk about today.

I'll suggest that one of the key failures of policy making in this area has been how that broader range of interests has been ignored, often with only one group of commercial interests listened to.

The result is that policy makers have simply added fuel to a divided, confrontational debate and have at times created policies that are out of touch, misguided or destined to result in loud and forceful opposition.

We're missing the opportunity to ensure that we pursue policies that make the best of what new technology offers – much wider creation of, access to, sharing and commercial exploitation of new work, empowering creators and citizens. Listening to some policy makers, they seem to have a vision of the internet as just a slightly more convenient Westfield shopping mall.

The only way to avoid a repeat of what happened during the ACTA debates and the many recent protests over copyright policy is for policy makers to display strong leadership and run an open, inclusive and transparent policy process that builds in stakeholders' concerns.

2. A reflection on the research

Looking first at the research presented today, we certainly welcome this research as an important contribution to the debate about tackling the many issues thrown up by copyright in the digital age, for example infringement or exceptions.

The study signals a recognition that there are lots of interests in this issue – that there are plenty of people affected by copyright in different ways. As part of that, this demonstrates the benefits of thinking about the effect of copyright law on users.

In particular, this study looks like it starts to fill in more information about exactly what types of infringing behaviour consumers engage in, and what their own perspectives on this are.

For example, the summary report noted that “participants judged some © infringement activities, such as sharing between friends and family members, as harmless and ordinary, and other activities, like making money from illegally hosting or distributing copyrighted material, as immoral and unfair.”

That's a really interesting line. It should inform the debate about exactly what type of infringement behaviour legislators focus on, and what effects it is likely to have. Too often 'infringement' is treated as a monolithic concept, with little effort to work out what sort of behaviour needs addressing.

Have policy makers made any effort to build insights like this into policy? No.

Policy makers looking at copyright enforcement have been keen to do something to tackle infringement, for example, but that willingness has usually not been matched by an effort to understand the issue they're legislating on.

Especially when it comes to understanding what consumers think and do, and consider what they consider to be reasonable. They simply have not made the effort to understand the nature of the issue they're trying to address by looking at the details of consumer behaviour, demand, supply, or types of infringement. In other words, the basics.

The enforcement of copyright policy is not a simple issue. Some people say 'oh, it's simple, get on with it and implement enforcement', 'why the delays?' or, 'this is just a question of whether you support creators or not'. That's far too simplistic.

You need to look at what people are doing, whether creators or 'users' and why, to understand what policy interventions will have what effect.

This sort of research we're hearing about today builds on other research like the publication last week from Ofcom into copyright infringing behaviour. For example, 1 in 6 infringe copyright, but nearly all also pay for content.

It should be used by government to inform what they do.


3. An outline of the work done by ORG in relation to copyright

ORG's work on copyright has to date essentially dealt with two issues:

  • First, enforcement, and specifically where enforcement involves technical interventions, interventions that affect Internet users, or the regulation of content online.
  • Second, the 'rules of the game', or the way things like licensing and exceptions work.

On enforcement, we've been vocal opponents of the Digital Economy Act.

Since the Digital Economy Act, copyright enforcement policy has been developed primarily through conversations between trade associations and technology companies. DCMS has held a series of roundtables that have operated with the bare minimum of openness. It has not been possible to ensure that the interests of citizens and others are considered.

These conversations are designed to lead to private agreements that will see content and information removed, blocked, or funding to sites withdrawn.

Due process and the law are essential when this sort of power to control what people see and do online is handed out. And we can't see those interests will be properly considered in a forum involving only a small number of trade associations and technology companies.

So our work, is to continually demand that a broader set of interests is considered in these discussions, so that due process, freedom of expression and privacy rights are built into any policies or agreements.

The Government are fond of saying they are just 'facilitating' these discussions. But they do so with the threat of legislation behind them, should the discussions not produce the result they have decided they want to see.

But the Government also told us that they have no evidence of the scale and nature of copyright infringement. So how will they spot when legislation is needed? What are they hoping they will achieve? How do they know what a 'good' outcome looks like? Is it when the trade associations involved give them a nod and say thanks?

It is extremely weak policy making that is effectively treating government like a conflict resolution service that already knows who is really at fault, instead of an institution that is supposed to pursue the public interest in a democratic fashion.

Our efforts to convince them that there area broader set of concerns to consider continue.

Moving on to the 'rules of the game', we believe that technology should help increase the creation of and access to information, culture and knowledge. But this requires copyright law to reflect the new opportunities for creative or economically useful activity afforded by new technology.

It's actually, from our perspective, been a much more encouraging story on the reform side from the UK government. The IPO have run a more open and inclusive process, giving stakeholders repeated opportunities to submit their views and evidence,

So licensing reforms can ensure work is widely available to help creators find new markets, or that cultural heritage can be looked after and shared with the nation.

And exceptions should make sure that reasonable reuse of copyrighted work is encouraged where it otherwise might be stifled or discouraged.

That's why in our submission to the copyright consultation, which the government used to propose lots of these issues, we focused on the need for an exception for parody.

The issue is whether one channel for the expression of people's sense of humour is being constrained through copyright laws over-regulating useful activity. We believe that there is clear evidence that it is, and that this has both cultural, political and economic consequences.

A group of campaigning organisations, including ORG, Greenpeace and Action Aid wrote to the Minister setting out why parody helps them campaign more effectively. In an age of brands protected by IP, this is extremely important means of delivering critical commentary.

One parody artist Cassette Boy, whose videos often become hugely popular, told the consultation that the absence of a parody exception had undermined his ability to get work with television networks as they were reticent to commission him or withheld permission for the reuse of content they owned the rights for.

We think this sort of activity can be socially and economically useful; it's something hundreds of thousands of people do everyday – there are over 20,000 Beyonce parodies on YouTube, last time we checked, for example; and we think it is something that should not depend on the permission of the creator of the original.

Introducing parody as a fair dealing exception would help facilitate parody works whilst ensuring creators' financial interests are not undermined. There's no evidence we've seen that parodies undermine the market for the originals.

It's a modest proposal - the fact that it has been subjected to such intense lobbying is indicative of the difficulty faced in proposing reasonable copyright reforms.

We also argued that these moves to broaden exceptions should go hand in hand with strengthening creators' position by, for example, encouraging fair markets in which they hold a stronger stake, improving the visibility of the provenance of a work and instances of works' reuse, boosting mechanisms of redress and remuneration, and by significantly improving relationships between creators and collective licensing bodies.

The direction of travel of the reforms proposed by Professor Hargreaves and the subsequent Government response will help do this.

Conversely, without this programme of reforms, we fear copyright will lose credibility by continuing to inhibit society, through a kind of over-regulation, from making the most of new technology.

When it prevents legitimate transformative reuses, such as parodies, or prevents researchers from using new technology to analyse large amounts of data in the service of building and sharing knowledge, then copyright works like a veto over socially or economically useful activity.

4. Our thoughts on ongoing issues with copyright policy and implementation that still need to be addressed

I'll speak now briefly about where we are with copyright policy in the UK, and what we would like to see happen.

First, the Government should crack on with implementing the recommendations of the Hargreaves review. This is the second time an independent review has recommended these sort of reforms. The first, the Gowers review, was launched at the same time as YouTube. We're still waiting for his recommendations to be implemented.

The proposals have been looked at by the Business, Innovation and Skills Committee, who broadly agreed with the findings and encouraged the Government to implement the reforms.

We'd like to see the exceptions proposed in the copyright consultation implemented – including, as I mentioned earlier, for parody.

And this also involves pushing on with improvements to how copyright licensing works, for example continuing to push on the work led by Richard Hooper CBE. The stimulation of legal markets is crucial, especially in the case of the film and television industries. I think particularly in film and television, there is a serious repertoire imbalance, meaning sometimes consumers simply can't access the movies or tv shows they want legally.

These reforms should be in the interest of supporting creators, addressing some policy making blind-spots. Especially in the area of enforcement. As I said earlier, there is a dearth of publicly available research into questions of consumer attitudes and behaviour that really shed light on what's happening.

Equally, we also believe there is a need for further study of the position of creators in the digital age.

This should include considerations of their strengths, weaknesses and vulnerabilities in cultural markets. This should help to disaggregate the interests of creators from intermediaries. Intermediaries are sometimes licensees or custodians of creators’ rights, but in this public debate have become proxies for creators' voices.

Why do policy makers assume that trade associations can speak on behalf of artists and creators? These are people they are engaged in commercial relationships with. This is a two-sided market, and policy makers need to demonstrate that they understand that.

We would advocate study of how creators' hands can be strengthened in the digital age in ways that take full advantage of the connectivity, transparency and accountability that technology offers – and that involves speaking to them directly.

5. Reflections on how users might be more effectively engaged in copyright policy making

Finally, I will turn to the question of how other stakeholders can be engaged in copyright policy making.

Copyright policy is not just about whether you get misty eyed thinking about the act of creation. You can't reduce this to a simple moral question about whether people support creators or not, and then just put the people you disagree with on one side of that dividing line. That's cheating.

Copyright affects a broad range of people, and involves a vast range of issues.

Whether it is users of social media who will be subject to rules governing content takedowns; campaigners interested in making parodies of copyrighted works to highlight their cause; creators who see their works getting licensed in new ways; or people – called 'users' in this research – who find that the law doesn't reflect their attitudes about what is reasonable or not.

That's why it is essential to learn from policy making failures of the past. For example, from the delays to the Digital Economy Act – which stem from an overly hurried and insufficiently democratic legislative process for a policy that was not based in robust evidence.

And they need to learn from ACTA, where a consistent failure to run an open process or listen to citizens' concerns led inevitably to an outpouring of opposition at the moment people could have a meaningful say.

Following the controversies surrounding ACTA and the ongoing disagreements over the direction of copyright policy, there is a need for a demonstrably open, transparent and inclusive policy making that is based in evidence. This will require strong political leadership to draw together the various stakeholders and perspectives.

This is especially necessary in the case of copyright enforcement policy. We simply don't see how these perspectives can be considered or be part of the conversation when policy is being made in roundtables that are designed to simply to ensure copyright owners 'get things done'.

These discussions are hosted by a department who, they admitted to us, have no evidence of the scale and nature of copyright infringement to guide them. So what are they hoping will happen? What do they consider to be outcomes that serve the public interest? They'll either be extremely lucky, or the outcomes will only suit the trade associations and technology companies involved.

We should not be entrusting decisions affecting the flow of information online to the representatives of trade associations from select industries.

Strong political leadership is now required to lead evidence-based, inclusive and transparent policy making.

The consequences of failing to do so are twofold. First, further laws or policies or voluntary agreements that undermine freedom of expression and innovation. Second, the sort of 'downstream' and very vociferous campaigns seen in the cases of the Digital Economy Act, ACTA and SOPA.