UK Copyright Review Must Listen To All Sides

Nearly a decade ago, I received an invitation to a big BBC lunch to look at the digital world. I turned up to join a group of teenagers and geekie characters in sneakers and hoods, feeling somewhat over aged and out of place. We were all allocated to sit at tables with top executives and over lunch discussed the digital world known then only to my fellow guests. I walked away realising how little I knew and wondering if the BEEB could absorb the wealth of information and advice. To their credit the BBC learnt and applied a lot in some of their subsequent ventures.

Now David Cameron has announced that the UK’s intellectual property laws are to be reviewed over the next six months and this could lead to them being relaxed to allow greater use of copyright material without the owner's permission. He appears influenced by Google’s founders who had apparently told the UK government they could not have started their company in the UK. He certainly is impressed by the US fair use laws and ‘to encourage the sort of creative innovation that exists in America.’

The previous government’s review produced The Digital Economy Bill which was welcomed by some but raised many objections and clearly was a rushed job with many dots not being joined up.

Larry Lessig gave a really interesting and thought provoking TED presentation on copyright. The most salient statement was when he said that the older generation watch TV and listen to music but the that the younger generation now make TV and make music. However, the law often views the sampling and representation of material as wrong and makes criminals out of people for the wrong reasons. We have to find ways to change how we view and respect copyright material. Yesterday’s laws and rules that work in the physical world fail in the digital one.

The challenges for the review are significant with copyright owners on one side wanting to maintain tight control and revenue streams and the public on the other wanting more freedom to share, express themselves and exploit digital opportunities. The interesting question now is, who the review will consult and whether it is brave enough to accomadate those that the BBC learnt so much from? It must listen not just to industry bodies, publishers and technology corporations but also to authors and consumers and those who we may regard as 'pirates' today.

The World According to Associated Press

The Associated Press is to create a news registry to protect their online content from copyright violations. The organization has already issued and then backed down on DMCA take down notices to bloggers who had linked to the AP, used their headlines or paraphrased AP stories.

AP’s proposed new registry, will attached AP content to a digital-permissions framework which will be actively monitored. Today each article and in the future, each picture and video, would have a digital “wrapper,” data invisible to the consumer. The software would also send signals back to AP, letting it track use of the article across the Web. Created and managed the Media Standards Trust, the new system allows the organization to gain proof of what it defines as violations in order to enforce its copyright policies.

Some see it as an attempt to lock up the news, others a rewriting of 'fair use' by the back door.

The New York Times reported Mr Curley, AP’s president and CEO, “If someone can build multibillion-dollar businesses out of keywords, we can build multihundred-million businesses out of headlines, and we’re going to do that,” The goal, he said, was not to have less use of the news articles, but to be paid for any use. Search engines and news aggregators contend that their brief article citations fall under the legal principle of fair use.

News aggregators like such as Google News have licensing agreements with AP for the use of its material but not for general Internet searches that turn up news articles. Is the right to link to articles using a brief snippet of extract from that article, or the original headline on the article now fair use or subject to payment to AP?

At a time when the Newspaper industry is clearly struggling this would appear a classic ‘finger in the Dyke’ and draconian approach. Read this interest article, 'NYT Co.’s top lawyer doubts that aggregation is a copyright issue' and discover some of the potential legal issues and a transcript of an interview with NYT’s legal council.

Update Comment received from Matthew Cain, Media Standards Trust

I saw your blogpost regarding AP's recent announcement and wanted to clarify a couple of things.

The AP news registry and tracking features were not "created and managed by the Media Standards Trust". Instead, the Media Standards Trust, working with Sir Tim Berners Lee's WSRI, have created an open source draft news microformat (road signs, if you will) for readers to identify the key attributes of a news article. Far from being invisible to readers, this appears as a box at the end of an article and helps the reader distinguish news from PR and identify things such as:
* who wrote the story
* the location of the story
* any principles under which it was written

More information is available here: www.valueaddednews.org

AP have developed additional set of features which helps them monitor and track articles. The Media Standards Trust has no involvement with this.

I would be grateful if you could amend your post accordingly.

The Great Book Bank Robbery, Part 18 - Google World

There were three interesting issues raised in the article in Publishers Weekly ‘Drummond Talks Google Settlement at AAP Meeting’. David Drummond is senior v-p for corporate development & chief legal officer at was invited to talk about the settlement between the parties at last week’s AAP annual meeting.

1. He is reported as saying that Google resisted the idea of “pushing a legal point to a conclusion,” and rather than see fair use vindicated in court, decided it was more important to take advantage of the opportunity to find an agreement that could benefit the world.

Some may question whether they consciously set out to ensure the point on ‘fair use’ was never clarified as this would have left them either out in the cold if they had lost, or in a competitive position if they won. Now the benefit is not Google Earth, but Google World?

2. Google has generally been reluctant to sell content, it realized that at some point it would have to and the sale of digitized books is an example of that. He said Google fully intends to actively sell and promote whatever products are created following the judge’s approval of the agreement.

At what point did they decide to sell content and become a bookseller at the start of the program, during the litigation process or when negotiating the settlement?

3. The settlement covers U.S. publishers only, but Drummond said Google is eager to reach deals with publishers worldwide.

This clearly declares the intent to globalize the deal and raises the question of recognition and conformity with territorial rights especially where the rights are with different publishers. It also says that others need to be fully engaged now and ensure that they are not simply knocked over like dominos.

The Great Book Bank Robbery - Is it Wise.com?

Part 1

At last some are now questioning the logic of the great giveaway and whether it is a wise move to reward what some believe is the thief with a snippet of a fine and the industry on a platter. Google has already scanned more than 7 million books, and plans to scan millions more. Where else would someone in the dock be given everything they wished for and asked to continue to do it with the blessing of all?

Fair Use. Google has been given a ‘licence to scan’ and ‘opt out’ not an ‘opt in’ approach to restricting access. But what does this mean to others who may wish to scan? Some interesting thoughts from UCLA Law's Professor, Neil Netanel

Big Brother. Once you are using the system then Google will know what you read, when you read it, what you didn’t read and even how long it took you to read it. If coupled with the obvious shift onto Anriod applications it will even know that too. Now what’s that worth to the advertising world? These points and much more are made in Fred von Lohmann’s legal analysis

Rights and the Registry. We have long argued against the Orphan Act which we saw as a precursor to this very move by Google and others. Many publishers are so front list focused that the long forgotten are just that. However just because a work is out of print and its ownership unclear, does not entitle it to be stolen. The question of who gets the money under this new arrangement is questioned in the University of Maryland College blog. Why does Google get to keep the orphan cash?

The question of orphan works and fair use is further explored in this blog by Jef Pearlman

The representatives and industry sanction. We are not in a position to say whether those who negotiated the deal were the right or wrong people to do so but would refer you to an interesting blog Scrivener's Error. The only question we would raise is why a company that openly wants to abolish author’s reversals is sitting on the panel?

Harvard University library, director Robert C. Darnton is reported in Information Week “the agreement had no assurances that prices charged for accessing electronic copies of books would be reasonable, particularly since there would be no real competition.” The ramifications of the settlement are said to be too unclear for Harvard to commit to participating in the Google project.

Fair Use versus Free Use

The issue of copyright appears again today in the New York Times where they report on an association of computer and communication companies, who have raised a complaint to the Federal Trade Commission accusing several publishers and other media companies of misleading and threatening consumers with overstated copyright warnings.

The complaint alleges that the warnings may intimidate consumers from making legal use of copyrighted material, like photocopying a page from a book to use in class. It raises the thorny issue of ‘fair use’ which can vary from country to country and where the rules on the Internet are not universal. Fair use could, for example, involve compiling and analyzing copyrighted visual images to create a visual search engine, transferring a song from a CD to an MP3 player or compiling film clips to create a multimedia presentation for a school assignment. The current legal battle between Viacom and Google over YouTube unauthorized content.

So what are the rules over fair use in the UK? This is the official extract from
The UK Copyright Service.

1.What is fair use?
In copyright law, there is a concept of fair use, also known as; free use, fair dealing, or fair practice. Fair use sets out certain actions that may be carried out, but would not normally be regarded as an infringement of the work.The idea behind this is that if copyright laws are too restrictive, it may stifle free speech, news reporting, or result in disproportionate penalties for inconsequential or accidental inclusion.
2.What does fair use allow?
Under fair use rules, it may be possible to use quotations or excerpts, where the work has been made available to the public, (i.e. published). Provided that: The use is deemed acceptable under the terms of fair dealing. That the quoted material is justified, and no more than is necessary is included. That the source of the quoted material is mentioned, along with the name of the author.
3.Typical free uses of work include: Inclusion for the purpose of news reporting.Incidental inclusion. National laws typically allow limited private and educational use.
4.What is incidental inclusion?
This is where part of a work is unintentionally included. A typical examples of this would be a case where holiday movie inadvertently captured part of a copyright work, such as some background music, or a poster that just happened to on a wall in the background.
5.Points to keep in mind...
The actual specifics of what is acceptable will be governed by national laws, and although broadly similar, actual provision will vary from country to country.Cases dealing with fair dealing can be complex, as decisions are based on individual circumstances and judgments. This can be a very difficult area of copyright law. To avoid problems, if you are in any doubt, you are advised to always get the permission of the owner, prior to use.

Any clearer? On the Internet what is clear this that this area is going to get murkier before it gets clearer. It raises the importance of rights management. In the area of rights permissions, knowing what you have and have not and what can and can not be deemed fair use and finally when usage is granted but not free the commercials involved.