Fix The Market, Not Copyright Law

The UK Government has announced another review into IP under Professor Ian Hargreaves; does it or does it not, on balance, generate the optimal amount of GDP growth and jobs?

The UK is, relatively, a major creative power, being a net exporter of music, and not doing too badly in areas like computer games, advertising, media production, and a lot of the ancillary services that support the creative industries. The EU has some difficulties, partly due to language issues, but also some deep rooted cultural bias (there’s not much of an export market for Schlager music), but has many initiatives in place to help and encourage the creative industries and the knowledge economy.

All this to my mind is a strong argument for ‘no change to copyright’, if it were not for the systematic distortion of wholesale markets by rights holders and the debilitating knock on effect on consumer services, innovation, and some minor issues such as privacy and freedom of expression.

The framing here is very important, and seems to me to be well understood by the Government in the way that they have set up the Hargreaves review. It is an open question in my mind as to whether a tweak to copyright law is the right or the best way to deal with problems in the wholesale rights licensing market, but the EU must be looking at the ‘safe harbour’ provisions in the DMCA and wondering whether YouTube, for instance, might have happened in Europe if the EU had got there first.

Simultaneously of course the licensing administration infrastructure is being overhauled, with an EU ‘nudge’ for a single EU music (works, not recordings) rights database now being upscaled to a global pan-industry WIPO project – that was the big news from the Midem music industry conference in Cannes, 2011. This is I suppose what’s known as a technical fix – change the roads and the cars change too.

My own view has been that stronger enforcement of fairness and openness in wholesale copyright markets would make a lot of the problems copyright owners are currently trying to externalise go away; and, that some good would be done by strengthening the rights of creators and performers so that they can make better contracts with producers and distributors. We need incentives for a middle class of creators more than we need them for superstars. I am sceptical about the potential for either technical or legal fixes to produce a balanced benefit rather than simply shifting the harm.

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