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Transcript & Video of Opening Keynote by Prof. Ian Hargreaves
It is a great pleasure to be here in Glasgow at the first annual EPIP Conference to be held in the UK. The choice of location, I think, reflects great credit upon CREATe, which in I think less than three years has established itself as a stronghold of evidence based thinking about IP issues, and so embraced as well as interpreted the standards set by the Intellectual Property Office of producing work that is “clear, verifiable and able to be peer reviewed”.
Five years ago, no such stronghold existed and I was returning from walking the dog when my phone rang. It was the Minister, Baroness Wilcox, from the recently established coalition government informing me that the Prime Minister intended to announce a review of intellectual property law later that week and they’d be obliged if I would agree to lead it. That began from a standing start, it has to be admitted, my personal exploration of the world of copyright.
My intention this morning is to talk about the review in a way that I haven’t done retrospectively before, how it worked, operationally and politically; what I believe it has achieved and how its methods and its conclusions might be relevant to the even more challenging question of IP reform and in particular copyright reform at the level of the European Union.
Having taken the Minister’s phone call, by the way, I did what any of us would have done. I fed the dog and then I consulted the dog. Cocker spaniels have got very strong instinct about most things. Only then did I set about clearing lines with my colleagues at Cardiff University and then I started furiously reading and calling people who I thought had more knowledge about the subject than myself. And the picture that emerged was not altogether comfortable. I was told that almost any liberalising reform would be met ferociously by rights holders well practised in the deployment of overwhelming force. Some academics, I learned, enjoyed debating the proposition that copyright reform is impossible. Some still do that. In all, there had been four UK reviews of intellectual property during a six year period, confirming that uncomfortable position and of these, the most substantial had been conducted in 2005/6 by Andrew Gowers, who was commissioned by the then Chancellor of the Exchequer Gordon Brown.
Andrew and I, as it happened, had worked together closely for several years at the Financial Times, thereby opening up the possibility of a limited audience joke that ministers wishing to call up IP reviews were now working through an alphabetical list of former FT journalists, so Gowers, Hargreaves, Ingham, Jones, you get the point.
Gowers himself had made 54 recommendations and none of the most important ones had made it through the system. So at last, I had an early tactic. I would offer no more than 10 recommendations. That way ministers and parliament would have to support the thrust and direction of my review or they would have to say no to it.
Soon we were having meetings of the review’s small secretariat, provided directly by the IPO and hugely capably led by one of its senior officers, Robin Webb. An advisory panel had also been identified, providing legal, economic, technology and innovation expertise. It was a great list. It looked exactly right to me, except that I didn’t know any of the people on it personally, so I did ask for one addition and Tom Loosemore, who I know from broadcasting and who for the last six years, I think, has been a key figure in the government digital service, Joined Up, that Tom recently announced his departure from the government digital service. Our advisory group met physically or virtually once a month.
The terms of reference for the review, which have already been mentioned, announced by the Prime Minister in November 2010, was actually extraordinarily lengthy. Among the things called for were proposals to ensure that the UK’s IP framework would promote entrepreneurialism, economic growth and social and commercial innovation. The review should consider global experience and focus upon new business models appropriate to the digital age. It would also investigate the benefits of fair use exceptions to copyright and how these might be achieved in the UK following the model of the United States. We were to reflect upon the interaction between IP and competition law, provide ideas to improve matters for small companies and tell government how the IP system nationally and internationally can best work to promote innovation and growth in the 21st century, with a view to setting the agenda for the long term, whilst not neglecting to set out short term and medium term measures.
The work, the Prime Minister added and actually I don’t think he said this, the work I was told should be finished in less than six months. The team looked a bit anxious about the tightness of this deadline but with a career spent mostly in journalism, I had an inbuilt advantage. For me it was a blessing in disguise.
In making the announcement, the Prime Minister had also mentioned that he had been told by Google that without a US style fair use approach to IP law, Google could never have got started. This at once gave the formidable army of UK copyright lobbyists a perfect target to stop what they now dubbed the Google Review in its tracks.
It quickly became clear that although I was formally to report jointly to the Business Secretary and to the Chancellor of the Exchequer, in practice my routine reporting would be to Vince Cable, the Liberal Democrat Business Secretary, who I’d known slightly since his incarnation as chief economist at Shell, and who I knew understood both the economic issues at stake obviously, whilst having shown a sympathetic ear to the valid concerns of authors, artists and creative businesses. But given the looming overhang of the 2008 financial crisis, it could only help that my mission had been stated essentially in economic terms. With growing evidence about the economic importance of the UK’s greatest industries and its emerging and wider digital creative economy, this also meant that the review could be more than a side show or a specialism. Potentially it also felt to me positive to be working to a two party coalition with a small majority; so long as both flanks of the coalition were behind the review, as turned out to be the case, that was a strength.
More important still, the recent parliament act meant that the government elected in 2010 would have a five year mandate, unprecedented. So if we got the IP review out to deadline, we would have a full and fixed four years for parliament to make decisions. By contrast, the back end of the four years which followed the publication of the Gowers Review, were fraught with talk of early election, creating a toxic context for the 2010 Digital Economy Act, when it was rushed through parliament and from there straight into the courts.
As I started to meet stakeholders from the music, television, publishing and film industries, I also found that there was a greater diversity of view than is apparent sometimes from the public statements of those industries’ spokespeople. A senior figure in the heart of the music industry told me right away that it was well beyond time to sort out the private copying rules. I attended a kind of boardroom meeting virtually with a major international media company and that enabled me to experience at first hand the huge range of views about rights in digital media within a single company, trying simultaneously to preserve revenue streams from old business models whilst also mining for new ones.
Perhaps most useful of all in setting my own direction, I was asked for an early private meeting with one of the more experienced global lobbyists, expert in arguing for tougher copyright. What would be your ideal scenario, I asked towards the end of this meeting. To get rid of the internet, he replied.
Meanwhile, I asked the IPO team to make sure that we spoke not only to experienced figures from the UK’s major media companies, but that we also ran events designed to attract smaller and younger technology companies not familiar to contributing to government led consultation. Government didn’t have their email addresses so we found other ways of contacting them. Consequently, we did pizza in Shoreditch as well as drinks surgeries and formal meetings at the IPO and a debate at the Royal Society of Arts. I accepted every single parliamentary invitation to talk to them, to MPs and here and there, I did start to sense a belated generational shift with regard to digital media and the creative industries.
I won’t now take up time in reminding you in any detail what the review concluded. It was published in May 2011 and its main conclusions on copyright argued that simplified and largely automated digital licensing procedures, coupled with a copyright regime which showed a better awareness of reasonableness consumer expectations in the digital world offered the likeliest route to a successful rebalancing of the system between rights holders and their agents on the one hand and consumers and a new breed of user makers on the other. Only this kind of rebalancing would provide the legal clarity, authority and licence for the reasonable prosecution of offenders where I argued that rights holders should focus on serious commercial infringement rather than harassing their customers. Copyright law needed rescuing from the overheated combat zone where it was falling into disrepute.
The right legal route to this outcome, I argued, was for the UK to take maximum advantage of several copyright exceptions permissible in the EU framework law, rather than undertaking a more ambitious dash for a US style fair use legal defence against rights infringement. Although good arguments were made to the contrary, I became convinced that fair use would just involve another dash into deadlock.
The review also dealt with several other important issues including the IP regime experienced by designers, simplified and fast track arbitration procedures, issues of competition and collecting societies, and the unified patent system in Europe.
When I looked back a few days ago, thinking about this event, over the initial response to the review in May 2011, I was actually surprised how amenable it sounded across the passage of almost 5 years. There was a ripple of applause from rights holders for seeing off the fair use option and a general wording of welcome, whilst almost everyone reserved their position on matters of detail, and it was to there that the battle had now shifted.
Four years later and following much further detailed technical consultation and some amendments that have weakened the review’s proposals. The essential ten point package did complete its passage through parliament before the election and this happened with the blessing of the House of Commons Business, Innovation and Science Committee and, it has to be said, the round condemnation of the Commons Culture, Media and Sport Committee, chaired at that time by the current Secretary of State for Culture, Media and Sport.
Why though then did this review, unlike others, achieve most if not all of its goals? I’ve thought of eight reasons. One, I think the reforms were ambitious in terms of previous reform implementation but not over-ambitious. In truth they’re unlikely to do serious damage to any rights holder who is on top its game. In fact, I would argue that the changes have and will help businesses adapt to digital as they have to do anyway. Secondly I think the digital climate was right, focused on the economy, worried about the UK falling behind on innovation and technology. So the argument on both sides had to be conducted in economic terms using economic evidence. Thirdly, I mentioned it already, a five year parliament gave the government time to argue its case and deploy quite elaborate implementation mechanics. Although some of this elaboration weakened the proposals, the change achieved was still in the right direction. I think it changed the direction of policy from retrograde to progressive. Fourthly, the combined expertise of the IPO Secretariat and the review’s advisers was an enormous strength not available in the same way to earlier reviews. It enabled me to focus on the role to which I had been appointed, namely arbitrating between passionately contested positions. Fifth, by proposing an argument about the direction of travel of reform, it was possible for government to flex its proposals without losing momentum. Sixth, I think we won the argument about the importance of evidence based policy thinking. I don’t think I invented the term lobby-nomics, but my use of it in the context of this review certainly struck a nerve. As a consequence, we and others found ourselves having to defend our own use of evidence, a point which has surfaced again recently in the judicial review of the private copying exception. Seven and perhaps most important of all, I think the review was essentially right. A demonstrable and serious step in adaptation to digital reality was necessary and overdue. The UK’s revised legal framework adds strength to the potential of our creative industries and our wider creative economy, not least because it embraces competition and builds consumer confidence. Progress in, for example, the streaming business bears testimony to this improved atmosphere. And finally eight, perhaps some rights holder lobbyists overreached themselves. They were so used to winning, they got to the point where some had wandered into a land of make believe, where they appeared really to believe what they said, that without the legal status quo there would be no more music, books, film or journalism. And tactically, they expended so much early fire power on the evils of the American fair use regime, that they were wrong footed by the review’s positioning.
So that’s the UK story. What about Europe? During the course of my review, I had a small number of exchanges with officials from the Commission, one or two openly contemptuous in tone, but not all of them. In the last two or three years, there has been a swell of interest internationally in the UK reforms, not only in Europe but all over the world, with the UK now viewed from Asia, South America and parts of North America as a reasonable and reform minded voice in Europe, albeit a time of such of such seismic shifts in European politics that it’s hard to focus upon an issue as specialised as the future of intellectual property.
The last but one approach to EU copyright reform under the European Commission headed by Jose Manuel Barroso and led by Commissioner Barnier was a rushed affair which made no serious effort to grapple with the innovation and entrepreneurship agenda or with a wider set of stakeholders than the usual suspects. But Mr Barroso’s successor, Jean-Claude Juncker, made pursuit of a digital single market and an accompanying reform of copyright law a major campaign issue prior to his appointment and by naming as his vice president for the digital single market Andrus Ansip, a former Prime Minister of Estonia, the European Union’s digital star, this looked like a much more serious proposition. Followed to its logical conclusion, the stance would result in an ambitious copyright framework designed to ensure consistent terms, open borders across the EU and maximise trade and international competitiveness of digital products and services. That would require the EU once and for all to distinguish between copyright protection for expressive or creative purpose and the type of routine machine copying which is necessary for digital data analytics and many other valuable but unforeseeable commercial digital services and indeed practices of digital government in the future.
As things stand, I think there’s a serious risk of Europe digging itself deeper into a digital black hole on copyright, data protection and other matters. We will hear in a moment from Julia Reda, who has greater insight than me into European politics. From a distance, some of the signs are not so encouraging, not least Europe’s inclination to blame American internet platforms rather than itself for lack of success in its own and global digital markets. Julia, I hope, will tell us something about the freedom of panorama issue, which I think qualifies as the single biggest piece of nonsense I’ve ever heard proposed in the copyright debate, perhaps ranking equally with the unnamed lobbyist I mentioned earlier who merely wanted to get rid of the internet. The stakes for Europe in this next phase of discussion about the creative digital economy are, I think, very high. My personal view is that unified, boundary free, continental scale market in digital products and services is as essential as the free trade principles applied to Europe’s economy at the start of the Common Market and the European Community half a century ago. I also think that a digital single market is achievable in a step by step fashion, which would make it quite manageable for the companies which appear otherwise intent upon preventing it.
But this definitely marks the point at which I should hand over to a younger and more politically skilful generation, to a member of the European Parliament who comes from Germany, the most powerful single state in the European Union and a politician who can if anyone can make sure that the voices of the digital many are not drowned out in policy discussions by the digitally self-interested few.
If there is a lesson from my work on IP and copyright for your work, Julia, it is that we need to set and then hold to a direction of travel, pursuing it in a measured, consistent and utterly determined way over a long period of time. This is, I think, the likeliest route to progress. If we do allow ourselves to be caught in a frozen conflict, Europe will inevitably experience economic, and I would add cultural decline relative to other parts of the world.
But we should certainly not despair. I recently received a copy of a book, Copyright Perspectives Past, Present and Prospect, edited by two Australians, Brian Fitzgerald and John Gilchrist and it brings together a range of voices, including a very interesting assessment of the relationship between Sharia law and IP law. But the most pleasing part is the opening chapter which consists of annotated translation of Victor Hugo’s speech to the International Literary Congress in Paris in June 1878. Hugo’s voice is that of the once exiled, immensely patriotic and revolutionary minded, great French artist, celebrating among his peers and admirers the importance of art, culture, philosophy and ideas. It also in passing proposes a copyright settlement covering the life of the author, with very modest but unspecified further financial rights for the author’s direct descendants. I’m not sure if it qualifies as a proposal based upon evidence that is clear, verifiable and able to be peer reviewed, but I thought I’d just mention it in case there’s anyone from the French government listening. Thank you very much.
Transcript & Video (see above) of response by MEP Julia Reda:
Thank you very much for the very kind introductions. Ian Hargreaves has just attested my generation a particular political skill. I’m hoping that I can fulfil these high expectations in my particular field of expertise and certainly for somebody like me, who has just earned her first academic degree just one and a half years ago, it is a great honour to be able to speak at an academic conference of this calibre. I would like to thank CREATe for giving me the opportunity to speak at a conference dedicated to what has become my strongest asset in my personal quest for European copyright reform, which is the academic evidence. I think Ian Hargreaves is to be congratulated on showing really what can be achieved within the relatively inflexible framework of European copyright law.
Now I would like to focus on what lessons we can draw from this successful reform in the UK for reforming that European framework and what role academic evidence can play in that process. I think the Hargreaves Review teaches us quite a number of things and first of all, the most important of those, that despite what some people may say, progress is possible, but nevertheless, the fact that the general first reaction to a government actually listening to academic evidence on copyright, that this first reaction is surprise also tells us that in many other instances, simply producing the evidence has not been enough for a successful reform. We’ve seen this on the European level, for example in the case of the term extension for phonograms, where independent academic evidence was largely ignored.
What the Hargreaves report has shown is that next to the evidence, what we also need is political leadership. Encouraging innovation and new business models was identified as the goal of the copyright reform in the UK, which opened the opportunity for economic evidence on how that goal could actually be achieved in practice. Now, with the new European Commission and Commission President Juncker’s initial plan to break down national silos in copyright, we are kind of going in a similar direction because the goal has been identified to complete the digital single market and to encourage cross border trade. But nevertheless, there isn’t a clear political line within the European Commission as a whole. On the one hand we have Vice President Ansip who has stated, for example, quite frequently that he hates geo blocking and Commissioner Oettinger, who is also responsible for digital issues, having accused those advocating for an anti geo blocking as approaching this question as Taliban. Where Ansip has pointed out that we should not pass laws targeted at a particular company, Oettinger has argued that newspapers are in danger and that we can force Google to subsidise them. In the case of the so called ancillary copyright law for press publishers that several media in the UK have also coined as the Google tax, the academic expert testimony from Germany and from Spain, where such laws have spectacularly backfired and if they achieved anything have actually strengthened Google’s market position, this evidence has done little to convince Commissioner Oettinger to abandon this idea, even though the European Parliament in the process of passing my copyright report has rejected these proposals twice in recent votes.
Due to the deep disagreements within the European Commission on the shape and direction of EU copyright reform, some fear that the Commission is now engaged in a process of policy based evidence making. When the evidence is cherry picked due to the conflicting political agendas from the member states, that puts the European Parliament in a very difficult position. It is not that the EU politicians don’t want to listen to independent evidence, nor as far as I can tell are we routinely handed briefcases full of money by lobbyists. A more fair description of the problem we are facing is that we don’t simply have the time to seek out and read all the papers that are being produced ourselves, so the question that we face now is which evidence is how easily available to European policy makers and who is in a position to provide that evidence to us. While the academia may excel at the theory, at the data and at the methodology, it’s nevertheless still the industry groups that excel at the presentation and so to say the art of the executive summary. Politicians care about easily digestible messages, especially those with clear predictions on such indicators as jobs or economic growth.
I’ve asked a colleague, for example, who tabled an amendments from a study sponsored by the entertainment industry and of course, doing so without indicating the source of those numbers, whether he wouldn’t prefer using independent academic evidence. He said that he would, but he couldn’t find an independent study that made exactly the same point as the industry study did and if I could provide him with one, he would be happy to quote that instead. I have seen the effectiveness of industry commissioned studies in sneaking into my copyright report, even though their methodology has already been called into question. Most notably, there is a paragraph that points out that IP intensive industry accounts for 40% of EU economic activity, without mentioning that the study in question defines industries as IP intensive that rely on IP more than average. So in other words, the half of the industry that doesn’t rely on IP is 50% more productive than the half of the industry that does. This is hardly an impressive argument for stricter copyright, but these figures have been presented at so many Brussels conferences and summarised into fact sheets that they are what comes to mind to politicians in the European Parliament who are pressed for time.
In that respect, I think the approach that Ian Hargreaves has taken of keeping the number of recommendations relatively limited was certainly the right one. The role of academic research into public policy opinions should be to make it easy for politicians to do the right thing. It’s not possible for parliaments to operate without outside, easily digestible input. If we’re not getting that input from academics, we will get it from industry. Examples of successful advocacy in the public interests more often than not mimic these tactics of industry and make the economic argument. So for example, several library associations have produced economic data to demonstrate their macro economic benefit and their priorities for copyright reform have ended up being quite prominently featured in the final version of my report.
Research and education have similarly convincing data that is rarely communicated strategically. For example, according to the impact assessment of the Horizon 2020 programme, 1 euro in funding that went into the seventh framework programme of the EU resulted in a return of investment to the economy of 13 euros on average.
Progressive copyright reform depends on public attention. The preconditions for that goal are better than ever before. Several issues that have been mentioned that have gained significant media attention in the last couple of years: ACTA was one of the most notable of those, but very recently as Ian Hargreaves has also mentioned, there was the issue of freedom of panorama. Here we have an example where a copyright issue that could hardly be any more arcane nevertheless triggered quite heated discussions within the European Parliament among politicians because they heard so much about it from the media and their constituencies that they thought it necessary to invest their precious time to get to the bottom of this issue. What had happened was that the Legal Affairs Committee had been unable to agree on a compromise text on my report’s recommendation that the freedom of panorama should apply in all of Europe. That is the right to reproduce pictures of public buildings or public artworks without permission from the architect. Quite surprisingly, to me anyway, was that the Committee then adopted the most extreme amendment that was tabled to my proposal, requesting that such users should always require permission from the architect if they were for commercial purposes, effectively attacking the conception of the public space in most European countries. I’ve often been asked which powerful lobby got members of Parliament to suggest restricting the freedom of panorama in the first place. Personally I don’t think that any such concerted lobbying happened and that any such effort was necessary.
In the absence of public attention at the vote in the Committee, politicians had simply relied on the rule of thumb that they fall back on when they lack a clear policy preference and they lacked time to look into these issues in detail, that stricter copyright was generally desirable and generally in the best interest of creators. They were quite surprised when it was first infamous creators, namely photographers and film makers, that opposed this extension of the scope of copyright in the hundreds of thousands. The fact that the two major political groups on the left and on the right of the Parliament completely abandoned this position as public attention grew indicates that public controversy encourages members of Parliament to spend more time actively seeking out evidence and questioning the recommendation of their in house experts.
As the only elected member of the Pirate Party, I have the luxury of being able to justify to my constituents that I don’t spend as much time on Greece or on geopolitical crises as I spend on the relatively low salience issue of copyright reform. Most other parliamentarians don’t have that luxury. The main feedback mechanism regarding their work on copyright will still be the media. So if academics want their evidence to have the same impact as industry lobbying messages, they need to invest into communicating the results of their work to the public. Most academics are shy about engaging in lobbying themselves, for good reasons, because they fear that their reputation would be damaged in the sense that their reputation is based on impartiality and on their willingness to question their own biases. But that restraint also makes academics less effective at lobbying on their own behalf.
If we believe that independent evidence leads to better policy making, if we want evidence to not just be an intellectual exercise but to actually have an impact, then the first step before providing that evidence must be advocating for researchers’ ability to create new evidence in the first place. If we consider evidence based policy making a desirable goal, then we need to take a stand for research and education. The current copyright regime is undermining our ability to produce evidence. It is time that academics in large numbers, and not just in the field of IP studies, speak up about this issue. Decreasing the very substantial burdens and transaction costs for research and education when dealing with copyright protected works is one of the declared goals of the European Commission’s copyright reform, so my report includes goals like a new exception for taxing data mining or content mining, the harmonisation of exception for research and education throughout the European Union, simplifying cross border and online projects, new exceptions for libraries and archives, legal protection of the public domain, protection of exceptions and limitations from contractual override and fully harmonising copyright terms at the lowest level of what currently exists in the EU, and finally a comprehensive set of users’ rights. These are all demands from my copyright report that haven’t overwhelmingly accepted by the European Parliament in its final vote. These reforms are within reach but nevertheless, they have been heavily attacked by lobbyists, not least by the largest scientific publishing houses. In the situation where scientific publishing houses are among the most profitable businesses in the world and several universities are not just spending significant proportions of their budgets on licensing but also on navigating and negotiating terms of an overly complex copyright system, resources are unnecessarily diverted from creating sound evidence.
It is up to us to ensure that these reforms can greatly improve the copyright framework for research and education and do not lose momentum because the advocates are not audible in Brussels. The controversy about taxing data mining or content mining in particular is essentially about the expansion of copyright laws to the privatisation of facts, a trend that is a danger to public research in general. Academics do need to lobby on their own behalf. There is a great justification for the neutrality applied to the academic work itself but it is also necessary to convey to politicians when you need copyright reform in order to be able to do your jobs efficiently and to make the best use of taxpayer money.
I hear Ian Hargreaves’ point about the necessity for small incremental change and I do believe that, as tedious as this might sound at times, it is what will eventually lead to success. I did have to face a lot of criticism also from within my own party, that my review of the InfoSoc Directive focused too much on the immediately achievable or on the low hanging fruit. There was some disappointment that it did not include a call to, and I quote, burn the burn convention. But while accepting this premise that politics is the art of the possible, we should not miss the opportunity to communicate the urgency of copyright reform and in the most public and in the clearest terms. If I, as a Pirate, take that position, nobody will be particularly surprised. But if the academic world based on scrutiny of the evidence in a concerted effort communicates to public policy makers that fundamental reform is needed, I’m sure that this message will be heard. Thank you very much.