Orphans Don’t Belong in Collective Farms

The case for exemptions from copyright for some limited purposes, such as preserving our cultural heritage, or advancing scholarship, is surely uncontroversial. Who would really argue that old photographs or diaries, letters home, and the ephemera of life should not be allowed to become a window into past times or important events. With some minimal adjustment to our copyright laws, diligent preservation and digitisation can make material available, free of legal risk and without touching any markets.

Without really bothering to explain why, or for whose benefit, the UK Government plans to go far further, effectively nationalising anything that is found without a copyright assertion, and creating a State sponsored competitor to the national copyright industries. This much was clarified at the recent Hooper enquiry session, by the Intellectual Property Office – presumably to be merged with the lost property office as it seems to want much the same function. There might be a fight as the legality of the move seems open to question given Berne’s clarity on automatic copyright. Win or lose however the UK Government seems to be indicating with this move that if it thinks it needs to choose between creators or users of copyright material, it’s firmly for the latter.

But how did we get to this sorry state? The presumption behind Hargreaves’ and Hooper’s enquiries was that copyright management had failed to keep up with the demands of digital businesses. Hooper has been keen to stress that he sees a huge amount of excellent work going on. In response he moved the focus from trading platforms, of which there are many and more coming, towards coordination, to make sure the full value of all the investment could be realised. This is all smart, and admirable. The Government however seems irritated – firstly by all the digital detritus hanging around untaxed and poorly managed (to you and I these are our photos, our lame attempts at making pop music, and our fan fiction etc.) – and secondly by the copyright industries rather monomaniacal demand for protection before reform. Hooper seemed last month to have been asked to convey a message to the copyright great and good at his last big meeting, that not until the Government (Vince Cable) had seen dramatic improvements in licensing efficiency would the enforcement agenda creep up the priority list.

More than this though, it seems that the UK Government has given up on the ability of the creative industries to generate value directly and by private negotiation. Given a simple choice, between a Wikipedia world, where free to re-use content on a huge scale provides context for search driven advertising, and a Britannica world where expertise is packaged and sold to consumers who care about quality, the UK plumps for flat rate, low to zero cost content as a superior engine of growth. And it is prepared to go into competition with its own domiciled creators and copyright businesses to achieve this aim.

Given that they can change the law (probably), the UK Government seems to have a great opportunity here to ensure than it can never be proved wrong. After all you can’t really do A-B testing with copyright law. If the outcome is not great the copyright industry lobbyists have spun such a tale of trouble and decline that you’d be forgiven for thinking that saving them was an impossible task anyway. No situation is so dire it’s not better than it might have been.

And that leads me to my greatest criticism of the UK Government approach, for its inability to see the industry behind the lobbyists, or look for a simple intervention that helps creators to bring their work to fair and open markets. We don’t need the British Library setting up a commercial content library with whatever its interns can shovel in off the web, and with rates set at two thirds the expected advertising CPM. That will simply divert much needed investment away from new creation, while undermining the markets that do support creators. Instead, the Government could, if it wanted to, help creators find and use the markets that already exist, through training and encouragement for market infrastructure, without sending any orphans to the collective farm.


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