Saturday 18 June 2011

Hargreaves and the copyright cake

An impressive feature of the Hargreaves report is how it challenges, in a rational and measured way, some fervently held beliefs about copyright yet without obviously appearing to do so.  

This is most evident in the report’s approach to exceptions.  There are two quite different views of copyright exceptions.  The one that holds sway today is that copyright owners have a fundamental right to prevent and control all copies of their works, of whatever type and made for whatever purpose; and that any exception derogates from that right.  On this view copyright constitutes a perfectly formed circular cake, anything more than a gnat’s bite out of which has to be compensated.

The second view is that copyright is an irregular cake, the appropriate shape of which has to be considered and determined, and that copyright exceptions are no more than another tool with which to mould the cake.  They sit alongside aspects such as the originality threshold, substantial part and the idea/expression dichotomy.

Hargreaves has filled his report with material that in substance  encourages the moulding view, without explicitly taking issue with the bite out of the cake approach.  This is evident in his references to the need for copyright to be balanced in terms of its economic and social effects, and his characterisation of fair use as a means of fixing imbalances.  So Hargreaves says at various points in his report:

“Policy should balance measurable economic objectives against social goals and potential benefits for rights holders against impacts on consumers and other interests. These concerns will be of particular importance in assessing future claims to extend rights or in determining desirable limits to rights.” 

“We simply invite Government to consider that as copyright becomes increasingly economically important, it is vital that economic considerations are fully weighed in the balance. This is especially so given the role, noted in the previous chapter, that copyright is acquiring of regulating the permissibility of technologies, such as consumer recording devices and web search engines. If the current imbalance in the debate on copyright is allowed to continue, the economic price will be high.”
“Economists regard copyright as a trade off between the positive effects of the incentives provided to creators and commercialisers of content [and] the negative effects of establishing monopoly rights for those parties, which have the potential to restrict supply and to inflate transaction costs.”
And the Report’s supporting law and economics paper observed (albeit among various references to exceptions as permitted private ‘takings’ of property):

“From a general perspective, the task may be well described as drawing monopoly as narrowly as possible so as to maintain incentives for creative activity while simultaneously using exceptions to avoid unacceptable impacts on objectives such as free speech and to avoid incurring overwhelming transactions costs.” (Dnes)

Against this repeated emphasis on the need for copyright to be in balance, paragraph 5.5 of the report acknowledges that the three step test embodied in EU law reflects the bite out of the cake stance.  The report seems to regard this more as a legal impediment to achieving balance than necessarily a soundly based approach. 

In this the report echoes Sir Hugh Laddie’s famous Stephen Stewart lecture in 1995, in which not only did he draw attention the benefits of flexible fair use such as future-proofing, but roundly criticised “bite out of the cake”:

“Rigidity is the rule.  It is as if every tiny exception to the grasp of the copyright monopoly has had to be fought hard for, prized out of the unwilling hand of the legislature and, once conceded, defined precisely and confined within high and immutable walls.  This approach also assumes that Parliament can foresee, and therefore legislate for, all possible circumstances in which allowing copyright to be enforced would be unjustified.” (Laddie, Copyright: Over-strength, Over-regulated, Over-rated?)

Both Laddie and Hargreaves, in their insistence on balance and that the scope of copyright should extend no further than strictly necessary, contain echoes of an even more famous commentary on early UK copyright legislation:

“For the sake of the good, we must submit to the evil.  But the evil ought not to last a day longer than is necessary for the purpose of securing the good”

“It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated and the least objectionable way of remunerating them is by way of copyright” (Lord Macaulay, speech to the House of Commons, 1841)

Far from being regarded as a (to a limited extent) necessary evil, copyright now has been elevated to a sacred object of worship.  Those who question it even slightly risk being reviled as heathens and heretics by the guardians of the pure and eternal (or at any rate life plus 70 years) flame of copyright. 

Hargreaves’ decision not to recommend fair use, largely it appears as being legally too difficult, could be seen as rather tame.  However it is certainly understandable if the goal was to bring evidence, economics and rationality to the fore - which sparking off a doctrinal storm would not have helped achieve.  In that context Hargreaves may have laid the ground for a more radical approach, once the implications of its analysis have sunk in.

As to the perceived legal impediments to fair use, the report might have observed that the rights industry lobby is not slow to secure changes in international copyright law when it thinks its interests are threatened by technological change.  In any event, EU Directives are only secondary EU legislation.  Like the EU, the USA has signed up to Berne, TRIPS and the three step test, yet it has retained its fair use provisions.  So why not boldly do the same? 

After all, fair use is not an alien US import.  It was originally developed in English law, and only superseded (if indeed it was) by specific fair dealing exceptions as a result of the codification of UK copyright in the 1911 Copyright Act.  It would be a fitting way to mark the 100th anniversary of the 1911 Act to acknowledge the error and put UK copyright back on track.

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