Policy and Lawmaking for the Digital Age; Enforcement & Intermediaries


In terms of policy and lawmaking, one of the first things we recognised was that courts get increasingly involved, and everyone knows the advantage of the Court of Justice getting dragged into copyright policy making, for good or for bad reasons. What we thought would therefore be very interesting to find out are things such as the kind of evidence that needs to be presented to the court. And going on from there, who needs to bring the evidence and who does in practice not contribute evidence? Which elements of the jigsaw are missing? What kind of evidence and whose point of view is underrepresented? Which elements are missing? Once we know what judges get, we need to analyse how they review it? How do they reach their decisions? How do all the processes work and how is a decision reached? And what is the impact on the question whether justice is done in the end? These questions are not only relevant in the traditional litigation between parties. They also apply to the scenario in which judicial review is sought, e.g. after an administrative decision. What kind of evidence is presented in such a case and which elements are in front of the judges when they have to make their decision? What is missing?

The second point that came out was the whole debate about fair dealing, and fair use. The question arises whether what we have in terms of fair dealing is not entirely sufficient. Part of our discussion was to highlight that whilst we know how this works in somewhat more traditional media it is far less obvious to see how you make this work in an online environment, with different overlapping layers of rights. How do you make fair dealing operate there? In that context there is also a debate about risk analysis. Is it really the case that the US system is more flexible, and therefore, enables certain things? Should we therefore move from fair dealing to a US style fair use system? Is it the case that people simply think they can get away with it, across the Atlantic, and they can’t get away with it here? Part of what I would add as well, is that the funding issue that may be more dominant than we think it is, and funding enables certain things. It also enables certain risks to be taken. So there is more to it than just the legal differences. If we are moving towards a more flexible approach to things like derivative works in this country and in Europe, how for that purpose does fair use or fair dealing work in practice? One of the interesting questions is what do we do with moral rights? Is it not the case that maybe moral rights could play a role, as gatekeeper, if we allow more things to have internal economic rights, in terms of derivative rights? Is there a function for moral rights as the ultimate safeguard? These are interesting questions that bring the whole package together.

And finally, the third point – what’s the purpose of rights? Some of us looked slightly irritated this morning when the sentence “You have to make money” was repeated again and again. Maybe, part of our debate should also be about the question why do we give rights? If we give exclusive rights of some sort or another, there’s a purpose for them. What is that purpose? OK, money has to be made, but do we also allow, in our system and in the system we are trying to design for the future, that the purpose of granting these rights is fulfilled. In that strand, we would very much like to analyse, if money is made, then where does it go and where should it go? Does it go to the right people in relation to the purpose for which the rights which were granted, or does it stick with the wrong people? In order to do that, what we also think we need is a much clearer picture of what happens to a work when it is used, re-used on a different platform. We need to get the pattern and see how it got from A to B, and in that respect, who makes money, and does it serve the real purpose of copyright?


There’s a message here for CREATe, looking at the legal panorama. When discussing the proposed changes to UK copyright law following the Hargreaves Review, we recognised that these changes must be seen within the context of European copyright law. So in expanding the scope of copyright exceptions to copyright law, they must fit within the scope of, and be consistent with, the exceptions permitted by the EC Copyright Directive. For that reason, we thought it really important that CREATe is ‘plugged in’ to the broader discussions taking place in international fora, including the European Commission and the World Intellectual Property Organisation ((WIPO) regarding any further revisions to copyright law at an international level.

In short, given CREATe’s goal, to help facilitate an even stronger position for the UK’s creative industries, contextualising its work within broader international legal developments is vital.

Our group then imagined looking back from 2016 based on the assumption that the extensions to copyright exceptions under UK copyright law as proposed by the Government following the Hargreaves Review are promptly implemented. We said we would want to have evidence before us which would enable us to measure their impact on growth in existing and or new businesses within the creative industries. The key questions for us would what impact have these changes had in cultural and economic terms? Have they had any appreciable impact on the speed and costs of obtaining copyright licences? Was it now much quicker or easier? to obtain such licences? What’s been the practical impact?

Our group also discussed the issue of the accessibility and ease of understanding of copyright law, especially from the consumer perspective. In particular, we discussed whether, irrespective of any changes made to UK copyright law, can consumer respect and use of copyright be made easier by making the law easier to understand and use? There is no doubt that copyright is complex, but we agreed that this is exacerbated by the highly technical nature of the language used by the 1988 Act. We noted that, of course, it was written at a time which pre-dated the Internet, the Web and social media. We discussed the need for consumer education, especially using plain language, to make copyright law easier to understand. We noted that this did not, of itself, require the law to be changed. Indeed, one aim should be to hide complexity from the user, in the same way that when we all drive our cars, the complex electronics are hidden from us behind a few buttons.

There is a real challanege to integrate copyright into education curricula. We agreed that this was tied to the issue of enforcement. We imagined a consumer who is served with a notice by his ISP issued under the Digital Economy Act for illegal downloading of copyright content via a P2P site. We also need to understand the impact of that process on the individual and his family and to see how, rather than being the culmination of a legal process, it could be an opportunity to engage in education?

Equally, we saw a clear distinction between the position of the consumer and commercial pirates where strong and effective enforcement of copyright was necessary. We also agreed that the copyright in this area is tri-partite: legal services – education – enforcement.

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