This morning the Culture, Media and Sport Committee published its report into how to support the creative industries. While it is a wide-ranging report, on copyright reform there is plenty to be disappointed about.
Today the Culture, Media and Sport Committee published a report called 'Supporting the creative economy.' (pdf version) Jim and I gave oral evidence to the Committee in January, and submitted written evidence last year.
Overall the Committee's report is a fairly disappointing and unimaginative piece of work. They offer a view of copyright that is too simplistic, one-sided and which effectively tries to reduce the debate to whether you like the creative industries or not. They thus ignore the wider impact of new technology on citizens as creators and participants in culture, and on how markets for cultural goods can now function most effectively.
From our initial look over the report, here's a few of our more specific concerns and thoughts.
Carelessness with privacy concerns
We were surprised to see the Committee dismiss the privacy concerns around targeted advertising, saying:
“The Advertising Association’s evidence goes on to express deep concern about draft EU Data Protection Regulation “which could damage direct marketing, internet advertising, and the UK economy both off and online”. Increasing use is being made of personal data to target online advertising better. While concerns around this have prompted reviews of data protection legislation, we do not think the targeting of appropriate advertising—essential to so many business models — represents the greatest threat to privacy.”
As far as we can tell, the Committee fail to look in any way at how targeted advertising works, how it collects information, or at the rules governing how companies can use and share our personal information. They've taken the opinions of the advertising industry as given. It's one-sided and analysis-light – which help demonstrate more general flaws with the report.
We do not control when the gadgets and services we use leak information about us. The rules about what companies who get that data can do with it are woefully inadequate. For example, health and fitness apps on our phones or wristbands share all sorts of data about us to companies whose privacy policies can be unclear, and who face some pretty lax regulation. This is one reason so few people trust the businesses we deal with online.
The Data Protection Regulation is currently being discussed in Europe and could help give people control over their data. But there's a very real danger our rights will be ignored, due to intense lobbying from advertising and technology groups. This is despite the revelations over the summer that once data about us is shared, security services have some fairly unaccountable powers to access most if not all of it.
The Committee appear entirely uninterested in or unaware of these important questions because a trade group for one of the industries affected told them it might damage their interests. This is an unhelpful time to be so cavalier.
ORG's work and the importance of freedom of expression online
We were also surprised and rather delighted to see that the Committee acknowledges our work promoting freedom of expression online.
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Bashing Hargreaves and copyright reforms
Looking at the copyright reforms kicked off by the Hargreaves Review in 2011, the Committee say:
“Following all the evidence we have received, we think Hargreaves is wrong in the benefits his report claims for his recommended changes to UK copyright law. We regret that the Hargreaves report adopts a significantly low standard in relation to the need for objective evidence in determining copyright policy. We do not consider Professor Hargreaves has adequately assessed the dangers of putting the established system of copyright at risk for no obvious benefit.”
This conclusion is unfair and somewhat inaccurate. First of all, it seems to focus on the Hargreaves report itself, which is to ignore the work that has gone into the implementation of the report's recommendations since, including the reviews and oversight that have gone alongside that work. For instance, the Committee don't mention the BIS Committee Review into this very issue last year, which concluded something very different:
“A considerable amount of high-quality work on policy development has been undertaken in the year since the Hargreaves Review. It will be important to maintain that momentum alongside the more rigorous approach to policy formation that Hargreaves recommended. Conclusions are near to formation in many areas, and the Government should press ahead with measures to implement new policy in those areas as soon as possible. We recommend that the Department act swiftly to bring in legislation to that effect.
169. While we recognise that the Government is undertaking a major reform in a complex area, changes are both necessary and urgent.”
We welcome the Intellectual Property Office’s reassurances that more detailed analysis is on-going and trust that it will pursue that work and act on external criticism of data and methodologies. We also agree that the involvement of the Regulatory Policy Committee as an independent auditor of economic analysis is a sensible policy development.”
The BIS Committee mention the Regulatory Policy Committee (RPC). Their remit is to provide independent advice to Government on the quality of analysis supporting new regulations. The RPC members include Ian Peters, the Chief Executive of the Institute of Internal Auditors and Jeremy Mayhew, chair of the Audit & Risk Management Committee as a non-party Common Councilman on the City of London Corporation.
The RPC have reviewed a number of the proposals for exceptions, giving a 'green' status to the copyright exceptions for private copying, parody, archiving and preservation, for disabled people, for text and data analytics, and exceptions for educational use. 'Green' means the Committee “have no significant concerns with the quality of analysis and evidence presented. We make suggestions where we think the IA could be improved to deliver greater clarity or to aid understanding. A Green rating means we judge the IA to be ‘fit for purpose’.”
The work of the RPC, as far as I can spot, is mentioned zero times in the CMS Committee report.
The reforms proposed by Professor Hargreaves and now being implemented by the Government, which are roundly criticised in this report, are actually modest and long overdue. A number of independent reports have recommended similar steps. That includes the Gowers Review in 2006, which came to strikingly similar conclusions. The recommendations for new copyright exceptions made in that review were never followed up.
Richard Hooper CBE, who with Ros Lynch ran the recent work looking at the feasibility of a copyright licensing Hub, said in his oral evidence to the Committee that the reforms were reasonable and the Government should get on with implementing them:
What I would say to this Committee is we have had five years of to-ing and fro-ing on the issue, and if this Committee can get the laws sorted out, get it done, then we can start focusing on the really important issues, otherwise a huge amount of energy and time and lobbying is going to be spent on this for the next five years.
I think that the Government has come up with, by and large, very sensible recommendations on orphan works, extended collective licensing, codes of conduct for collecting societies and exceptions.
He repeated such thoughts in a speech to the London Book Fair, in which he said:
We have spent years first with the Gowers Review and then the Hargreaves Review discussing and debating changes to copyright law. The current proposals are broadly sensible, with the exceptions not being too widely drawn."
So the new proposals have been repeatedly exposed to consultation and review. They are modest, narrowly drawn and address some clearly defined needs. The Government should ignore this distraction and continue with their implementation.
The Digital Economy Act
There is a welcome acknowledgement that the Digital Economy Act suffered from a lack of debate in Parliament and was rushed through. We also welcome the concerns that the Committee recognises the problems with public wifi, although they offer no solution or recommendations on how to do this.
Here's what they say:
"The delays in implementing the DEA are thus by no means all attributable to the Government: the legal action by BT and TalkTalk certainly contributed. As, perhaps, did the haste with which the presaging Bill was originally rushed through Parliament with relatively little debate in the House of Commons. We acknowledge that the DEA has its limitations; for example it is not applicable to mobile devices and there needs to be greater clarity over the situation of public Wi-Fi. We recognise, too, that effective enforcement of copyright is likely to focus more on targeting illegal activities on a commercial scale—on “following the money.”
It's a shame that the Committee still have faith that the Act is worth pursuing, and it's a shame that the Committee support the possible voluntary arrangements for a new three strikes regime. That is to ignore all the important questions about standards of evidence against alleged infringers, data protection and rights of appeal that led the Digital Economy Act itself into such trouble.
Ignoring what's already being done to provide good evidence
It is also unfortunate that having stated again that objective evidence is important, the Committee fail to mention any of Ofcom's work researching copyright infringement and who those that claim to infringe are. It tells us lots if interesting things, such as those who say they infringe copyright also say they spend the most on legal content. This is despite ORG mentioning the Ofcom research in our oral evidence to the Committee.
Incidentally this was paid for by the IPO, who the Committee claim are on some anti-copyright crusade.
Somewhat bizarrely, the Committee call for the IPO to include more research into piracy in its annual report. The recent Ofcom research was their last in a series of reports, which has ended because the money from the IPO has run out. Having praised the effort to produce useful numbers, nobody at the launch event could offer solutions to how the research would continue and where funding would come from. The Committee could have looked at how to encourage and get funding for independent, robust evidence. But they did not do this, or seem aware that Ofcom have been doing such research and that it was funded by the IPO.
The report also fails to mention research into the effectiveness of three-strikes regimes, the most recent of which concluded that there "is little to no evidence that graduated responses are either 'successful' or 'effective'."
'Robust evidence-based policy' seems to basically have come to mean 'evidence I agree with and which helps support the conclusions I have already arrived at'.