Open Rights Group welcomes Gowers Review


6 December 2006


* Evidence-based approach essential * Keeping the copyright term for sound recordings at 50 years is the right decision; Government must hold firm in face of music industry lobbying to ignore the report * Moves to tackle commercial-scale counterfeiting are welcome; but we must distinguish between counterfeiting and individual copying * Calls for “transformative works” exemption will be valuable if law drafted well * Delighted to see libraries supported in their essential cultural preservation role

The Open Rights Group is delighted to see Andrew Gowers taking an evidence-based approach to Review of Intellectual Property, and welcomes many of the recommendations he makes.

ORG Executive Director Suw Charman said: “This review is the most important critique of intellectual property in the UK of recent years, and we are delighted to see that the majority of its recommendations are sensible and constructive. We are concerned, however, that the report is recommending stronger enforcement of intellectual property rights without distinguishing between large-scale commercial and small-scale non-commercial infringement.”

Professor Jonathan Zittrain, Chair in Internet Governance and Regulation at Oxford University and member of the Open Rights Group Advisory Council, added: “The Review is thoughtful and persuasive, particularly on term extension. It places in one document a review of the arguments for extension — and disposes of each. One hopes the Government is reading carefully.”

“On increased penalties for copyright infringement, these must be placed against other important law enforcement priorities — particularly those that deal with physical harm rather than economic harm. The day cannot come soon enough when publishers finish tweaking their business models so that everyone, including artists, benefits from abundance rather than from a scarcity which is, by everyone’s agreement, artificial.”

The Open Rights Group urges the Government to take good the Gowers review, but care must be taken in how its recommendations are followed:

* Policy changes must be based on evidence. * Independent research must be commissioned for specialist areas where there is currently little evidence * User rights and exemptions must be specifically granted, and not just convenient loopholes or an agreement not to prosecute. * There must be public consultation on each specific reform to ensure that the public voice is heard.

Term Extension We are delighted that the Gowers Review has seen through music industry hyperbole and is recommending that the term of copyright protection for sound recordings remain at 50 years. There is no doubt that this is the right decision – it is supported by all the evidence. But the Government must stand firm in the face of renewed industry attempts to marginalise the Gowers Review.

Matt Black, DJ and one half of Coldcut, said: “The only people to benefit from term extension would be the giant traditional media groups – artists would actually benefit more from letting music enter the public domain. Extending copyright term for past works amounts to revising the deals made with artists without their consent. Who would sign a deal for a term of ’50 years or however long we want to make it by lobbying to get the law changed’?

“The conclusion of the Gowers review that copyright term should not be extended is the correct one; we should not follow the lead of the US who have submitted to corporate demands by Big Media. Here we can recognise that music is a key part of our culture, (and, indeed, a key export), that recycling is a natural part of musical creativity and that not extending the existing copyright term will promote the creation of UK music.”

Exemptions Calls for additional exemptions to copyright law for “creative, transformative* or derivative works” and for “caricature, parody or pastiche” will be important to both artists and the public alike. However, we must be sure that the transformative works exemption is not restrictively drawn, for instance, ruling out transformations which “offend artistic integrity”, as this would mean that the law would be subject to the vagaries of personal opinion as to what is ‘offensive’.

It would be far better for the law to give general guidelines, and not to try to create an exhaustive list of acceptable uses, which would go rapidly out of date.

Also important is an exception which would legalise the transfer music from CDs to an MP3 player.

Dave Rowntree from Blur said: “I think the idea of a private copying exception is long overdue and, together with a proposal for orphaned works and the transformative works and parody exceptions, it will make for a more robust copyright law which encourages creativity rather than stifles it.”

We are pleased to hear that libraries will be supported in their preservation work and will be allowed to copy and reformat copyrighted material, including film and sound recordings. This is essential to the health of our cultural heritage and we are delighted that the Chancellor has recognised its importance.

Counterfeiting, piracy and file sharing We welcome the Chancellor’s commitment to tackling counterfeiting and piracy. However, we are concerned that the report seems to make no distinction between large-scale commercial counterfeiting, and small-scale non-commercial acts carried out by individuals. Too often these vastly different acts are conflated by the music industry, and the drafters of any new intellectual property law must make the difference clear to both the courts and the rightsholders.

We are concerned that without this clarification, this report will give a green light to the record industry to continue to pursue frivolous court cases. If the police become involved in infringement investigations, as recommended by the Gowers Review, there is a risk that their resources would be diverted from tackling serious crime by an over-enthusiastic music industry keen to prosecute grannies and children for file sharing.

We would urge the Chancellor and to commission an independent study into file sharing, as it is clear that much more research is needed in order to determine how file sharing should be treated legally. Impartial evidence must form the foundation for policy in this area, rather than biased and unreliable information provided by interested parties.

Notes for Editors * A ‘transformative work’ uses an existing work to create something new which possesses its own merits, such as a parody, a critique or review, or using thumbnails images to aid search.

The Open Rights Group is a digital rights advocacy group based in the UK. It aims to increase awareness of digital rights issues, help foster grassroots activity and to preserve and extend civil liberties in the digital age.

For more information, contact: Tel: +44 (0)20 7096 1079