Improving deliberation, improving copyright: Can deliberation work in complex contexts?

This post by Lee Edwards, Associate Professor at the LSE, and Giles Moss, Associate Professor at the University of Leeds was first published on the LSE Blogs site. It is a companion post to the blog published on the CREATe site about the workshop that took place during the CREATe Symposium in October 2019.

In the project ‘Improving Deliberation, Improving Copyright’, a range of copyright stakeholders, including members of the public, are collaborating to produce a set of guidelines for copyright policy consultations. The aim of the collaboration is to improve consultations, in part by more effectively incorporating a variety of stakeholder voices into debates about copyright. Lee Edwards, Associate Professor at the LSE, and Giles Moss, Associate Professor at the University of Leeds, explain the challenges of involving multiple stakeholders, and how to resolve some of them.  

The first part of ‘Improving Deliberation, Improving Copyright’ consisted of 44 stakeholder dialogues, focusing on their experiences of different types of consultations and their insights about what works well and what might be improved in the copyright consultation process. These discussions showed that participants recognised the democratic importance of consultations as a means of gathering evidence to improve policy; assessing support for different policy options; and providing a space where citizens have a voice in the policymaking process.

The idea that consultations are a fundamental part of the democratic process is not new, and none of these purposes are particularly contentious. However, the difficulty comes when searching for strategies and tactics to implement them in the real world, and particularly in relation to something as complex as copyright. On 17 January 2020, 24 of the stakeholders involved in the dialogues gathered for a London workshop to discuss what measures might be required to improve the consultation process in practice.

The challenges became clear with the first question: ‘Who should be involved in copyright consultations?’. Following the principle that all those affected should be included in consultations, participants started with long and unwieldy lists of candidates that they then tried to categorise and organise. However, while on the face of it categorisations are easy (‘rightsholders’, ‘user’, ‘creator’); in practice, activities and interests in relation to copyright are often multiple and overlapping. Categorising stakeholders in a way that recognises only one aspect of their ‘copyright identity’ could constrain their input in advance.

On the other hand, if we leave it to stakeholders to decide whether or not a particular consultation is relevant, how do we ensure they know it’s happening, particularly if they are not an organised group, and explain the process of participating in a way that everyone can understand? How do we ensure questions are relevant and accessible to all those who are participating? And how should one accommodate and facilitate diversity across categories other than just creative output or use – racial, socio-economic, gender, physical and neurodiversity, for example? What of new stakeholders, engaged in types of activity that are in their infancy, but where copyright may play a significant role? If one tries to be as inclusive as possible, then how is government supposed to manage the logistics of gathering and analysing responses, compare different types of evidence equitably, and complete the consultation in the required amount of time?

These questions are difficult and complex, and precisely because of this, our project adopts a deliberative approach towards finding answers. In contrast to much of the copyright debate, the workshop was designed to bring together stakeholders from different areas so that they could engage in mutually respectful and informed dialogue about the problems being discussed. As a result, and while complete agreement was not always reached, mutual understanding between stakeholders did emerge, and some solutions were developed and proposed at the end of the day. Using accessible language; including a broad range of stakeholders in face-to-face meetings and creating opportunities for dialogue between them; improving transparency in various ways; using technology effectively for both outreach and submission; and tailoring consultations to specific audiences; were all popular improvements, alongside many more options.

This project is small and it is relatively easy to construct a deliberative approach when one is dealing with a  localised set of stakeholders. How to scale deliberation up to bigger, international debates, and debates that deal with substantive, rather than procedural issues, is much more challenging, as the current EC stakeholder dialogues on Article 17 of the European Copyright Directive attest. While five out of six dialogues have now taken place, reports suggest that agreement is as distant now as it was at the beginning of the process. A recent Communia blog post illustrates many of the problems associated with the discussions, including a lack of trust and mutual respect between participants occupying different positions in the debate, a lack of transparency about their interests in the discussion, and a lack of informed participation resulting in misplaced interventions. The consultation process for the European Copyright Directive was itself fraught (see, for example, the opinion in this Corporate Europe report), exacerbating rather than overcoming divisions to find a policy approach that could balance interests. Arguably, and unfortunately, deliberation at this stage may be too late in the day to address fundamental schisms between different actors that prevent common ground being found in practice.

It’s for this reason that our project is focused on the consultation process rather than copyright per se. If the process of engagement with stakeholders before policy is passed into law can be more strongly underpinned by deliberative principles of inclusivity, mutual respect and a commitment to genuine listening among stakeholders themselves, as well as between stakeholders and government, then the opportunities for more widely accepted policies, even in divisive and complex areas such as copyright, will improve. Indeed, we hope our findings will be relevant to a much wider range of media policy challenges – such as internet safety or platform regulation – in the future.

A second, smaller workshop with the remaining stakeholders in the project was held in early February 2020, after which a range of options will be developed and presented to the Intellectual Property Office. For updates on the project and its findings, visit the project website here.

This article represents the views of the authors and not the position of the Media@LSE blog, nor of the London School of Economics and Political Science.

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