Waiting for Hargreaves. Fair use UK RIP – or is it?

[transferred from www.scibella.wordpress.com  july 2011]

I think we can take it from the recent press that the Hargreaves Review into Intellectual Property & Growth will not be recommending a “fair use” copyright provision. 

“However, The Independent has learned that Jeremy Hunt, the Culture Secretary, will tomorrow join the academic Ian Hargreaves, who chaired the inquiry, at a briefing for key industry figures. The review’s findings will then be formally made public next week….. One insider at a content provider said the industry believed it had won the day on the issue. “Hunt will say some warm words about the rule but is likely to say it is not appropriate and that the UK is constrained on a European basis,” he said. ”

http://www.independent.co.uk/news/business/news/uks-copyright-laws-set-for-dramatic-overhaul-2282088.html

So in the battle of  “creatives” vs google-ites ” it’s victory to the content holders lobby – that is lobby as in lob- to throw everything you can at something you don’t like.  Can’t say I’m surprised though for a while in March I was wondering.  After the Hargreaves panel finished  evidence taking and moved to review writing, suddenly there were a lot of squawking noises…letter writing to the FT and several press articles -fair use won’t work in UK etc.. rape and pillage of creative sector etc..etc . Maybe  it was precautionary, maybe they knew something and were genuinely worried.   Looking  back, I would think that March 30th was the decisive day. When Jeremy Hunt made it “absolutely” clear  in response to questioning at a CMS parliamentary committee that he was now in charge of the copyright side of the review.

that’s about it for fair use for now.   Hargreaves, starts with BIS and Vince Cable ends with Hunt, Vaizey, La Bagshawe, and CMS.  RIP “fair use” in the UK .

Sorry but it’s No, Prime Minister. Or is it?

“Another key issue is that of format shifting – possibly with a call to end the anomaly that downloading a CD on to an MP3 player technically breaches copyright laws, despite it being a generally accepted practice.”  (The Independent may 11th)

“Anomaly” . No, it’s a consequence of an exception based copyright system that was drafted pre-internet.  “Technically breaches”.  No, it’s illegal. End. Stop.  Crazy, yes – even the BPI are reported to be OK with a change in UK copyright law over this. But I’ll bet £10 against all comers that if format shifting does creep into the review that it will be limited to backup to a local device. And very probably just music, not video.   Backing up any media you don’t own the copyright to,  from the UK,   to a cyberlocker or a Amazon, Google, Apple music/media/other stuff locker will stay illegal.   Why? Because if you allow format shifting to follow the technology into the cloud and provide availability to users from whatever, wherever- then enforcement of the Digital Economy Act, another favourite of the content lobby, becomes even more difficult.  Legal backed up copy or illegal copy how are you going to tell?  The UK gets another grudging one step behind limited exception but that doesn’t matter as joe public won’t notice anyway and the amended CDPA will pass through parliament without a sound.

Or will it? Indulge me in a little speculation here…

May 5th and the UK local elections are held. Clegg’s Lib Dems get clattered.  Clegg has started saying Lib Dems need to be more “muscular”  in the coalition – issues will be taken case by case. Starting quite rightly with the NHS.  And down the line if I were the Lib Dems I would be thinking.. hmm.. popular cause here when the amended CDPA act goes through parliament. Let’s push for format shifting to include cloud storage.  And if I were Dynamic Dave I’d be thinking -this is a bone I can throw the Lib Dems and get a bit more of what I wanted anyway. 

And if that doesn’t do it – wait until the DEA starts to impact when the copyright infringement reports (CIRs)  start to go out next year.  That will be about 6.5 million people, all of whom are potential voters, getting their day spoiled. About 1 household in 4 in the UK.  Especially since with present standards of evidence gathering about 700,000 of those letters will be “false positives” sent to people innocent of piracy. (see notes at end)

So, if I were the Lib Dems I’d be thinking hard.   Play the card of the defenders of  a public who want to move with the times against industry interests who just want to keep doing business as it was in grandad’s day and clout you round the head for being cheeky.  Maybe one for Julian Huppert of the Lib Dem policy working group on digital policy?  And the Conservatives,  do they really want to be seen dancing with digital dinosaurs? And Labour, has anyone heard from Labour about IP recently?

Finally , a sad announcement:

Obituary:  Culture, Media, Sport parliamentary committee  inquiry into Protection of Intellectual Property Rights Online  (Nov 10th 2010- April 27th 2011)

Gawn, and never called me muvver.

Official cause of death:   “In light of the ongoing court action concerning the provisions of the Digital Economy Act, the Committee has agreed to suspend its inquiry into the Protection of Intellectual Property Rights Online”.

Note: Justice Parker  handed down his decision on April 20th- six days earlier.

Notes:

1.” Results from the Digital Entertainment Survey (2008) indicate that 70% of copyright infringers would stop downloading digital products if they received a call or letter from their ISP. The policy objective is to achieve this reduction within 2 years. Assuming that this objective is achieved by sending one letter to the 6.5 million copyright infringers in the UK during one year…”

Ref [1]: http://webarchive.nationalarchives.gov.uk/20100511084737/http:/interactive.bis.gov.uk/digitalbritain/wp-content/uploads/2010/04/Digital-Economy-Act-IAs-final.pdf   p.70

2. “There were 19.2 million households with an Internet connection in 2010, representing 73 per cent of households.”

Ref [2]: http://www.statistics.gov.uk/cci/nugget.asp?id=8

3. ” We find that the current investigative methods produce at least 11% false positives”

http://systems.cs.colorado.edu/~bauerk/papers/bauer-wifs09.pdf

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