How can government meet the challenges

of balancing effective copyright protection

in the digital age against the needs of users?

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By Judith Sullivan

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How can government meet the challenges of balancing effective copyright protection in the digital age against the needs of users?

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This paper draws on about 20 years, on and off, in copyright policy making for the UK Government, but I have tried to use that experience to look at the future rather than just dwell on the past.  Indeed, I am not at liberty to talk freely about the past, but I will mention a couple of things that are common knowledge to illustrate the type of frustrations that policy makers surely still face.

Policy making needs to deliver a legal framework that encourages creativity to flourish, by permitting those who create and invest in creativity to obtain a reward.   A common misunderstanding, in my experience, is the belief that copyright policy makers must therefore support copyright owners more than other stakeholders.  But policy makers must always have regard to the wider public interest.  The material that might be created because of the promise of rewards from exercising exclusive rights can clearly benefit everyone, because it is enjoyed for entertainment, used in education and so on, but there may also be public interest reasons to constrain or curtail rights.  The overriding strategy for those determining the policy in the area of copyright is to strive for an appropriate balance between the interests of all stakeholders.

A good historical example of the frustration involved in determining that balance relates to the issue of private copying.  The failure, at the time UK copyright law was updated in 1988, to make any change to the law which addressed the ease of copying music onto tapes, and the public’s increasing desire to do that, is well known.  A blank tape levy had been proposed, coupled with making the copying legal, but that didn’t happen because of the difficulties of making such a levy fair.  Doing nothing, and so simply leaving the private copying illegal, was perhaps the easiest option politically, but doing nothing has certainly left unfinished business, although things have, of course, moved on from recording music onto tapes.

The second example from the past is the restrictions on new exceptions in the 2001 EU copyright Directive.  That Directive was the culmination of very difficult and lengthy negotiations, and the end result is, of course, an inevitable compromise.  Much in the Directive was good for the UK, such as the recognition that dissemination of works on the internet must be something that copyright owners can be rewarded for.  Arguably this was just bringing the EU up to the standards that those drafting the UK legislation in 1988 had cleverly, or fortuitously, anticipated!  But the Directive came with various warts, such as constraining provision on exceptions to rights.  The fact that the possibility of making provision for use of orphan works by an exception is now an EU issue does limit the UK’s options for solving problems.

These examples illustrate some difficulties with policy making.  There tends to be an inbuilt inertia because of the challenge involved in isolating the true problems from much biased special pleading and identifying fair solutions.  And at the European and international levels, the UK’s proud tradition of 300 years of copyright law certainly does not give it any special entitlement to see things done the way it thinks is best.   It is also true that policy developed in haste as a result of special pleading is unlikely to make good law in the copyright area anymore than it does in other areas.  When the final, generally pragmatic, policy solution eventually emerges, it is likely to please no-one, so the special pleading starts all over again.

Private copying continues to be a big, unresolved policy issue in the digital age and policy makers have quite rightly been thinking about possible policy changes.  In the digital world, private copying has, of course, become a lot more complicated.  What starts as some limited private copying can so often lead to sharing with others, including putting copies on the internet.  What users can do easily is likely to always be difficult to stop.  There is no 300 year history of enormous respect for copyright law which makes the very existence of copyright something that inhibits people.  It’s just that for most of those years any significant amount of copying and sharing required so much investment that ordinary people weren’t particularly tempted.  So, for policy makers now, there is the well-recognised challenge of either getting people to understand and respect the boundaries imposed by copyright law, enforcing the law against potentially a very large number of people, changing the law so the boundaries fall where most people naturally comply with it, encouraging rights owners, collaborating as necessary with others, to voluntarily do something that solves all the problems, or doing some of all of these.

Pragmatic policy makers probably back the last of these.  Better education about copyright has been an agenda item for many years now, but is unlikely to solve everything.  Enforcement against P2P file sharing may be made more effective by the action to be required of ISPs in the current Digital Economy Bill that is wending its way through Parliament as I write, but that won’t necessarily stop people from wanting to share or to put their mash-ups on YouTube.  Changes are therefore probably needed, but deciding whether these should be legal ones or voluntary ones, and trying to obtain a consensus about what the changes might be, is difficult.  Of course, changing the law does not have to be merely a matter of legalising more things only.  It can also be about when, and if so, how, any legalised copying beyond a certain point leads to a royalty payment.  And that sort of solution can potentially be delivered voluntarily by right holders making it easy to license what people want to do.  This is therefore the modern debate about levies, but I doubt that levies in the traditional sense can solve everything, and maybe, as the UK IPO has recognised, the debate cannot be confined to the UK alone.

The blank tape levy was perhaps a great idea as a policy solution for private copying in its time, and it seems to have worked fine in a number of countries.  But users in the UK were perhaps more organised than in those countries, and so were able to win their argument about a levy being unfair to those, particularly visually impaired people, not infringing copyright when using tapes.  And the increasing number of things on which a levy might be paid, including things that a particular person might use exclusively in ways where no copyright material is copied, certainly calls into question the sustainability of this solution.  What needs to be covered by a new “great idea” to address expanded “private” copying has been debated by many – as well as copying for things like format shifting, it may need to incorporate a right to quote from, mash up and share protected material.  But how legislative and/or voluntary solutions might deliver this, and when and how royalties should be paid, is not easily determined.

A legislative solution is bound to be difficult.  The starting point is the constraints in international treaties on the extent to which right holders can have their right to say “no” taken away, and there are numerous factors to consider here.   As my first boss said to me, when I knew very little about copyright, the devil is in the detail.  Too true, and despite protestations from some that copyright is too complicated, the detail seems to still reign supreme.  Witness for example the growing complexity of the provision on orphan works in the Digital Economy Bill.  And this does not even include the regulations that will be needed before anything is actually implemented.  So, for example, in a legislative solution on private copying, sharing and so on, would it be fair to permit this for something that you only got via a streamed service, or one where you can keep the copy for a short time only (online “rental”), or must you first of all have a copy that you are entitled to keep permanently?  How can royalties be collected, rates decided and so on?  And will it be necessary to exclude from any royalty payment uses that perhaps ought to be totally free, such as limited use for criticism or review?

“Private” copying is, of course, part of a wider debate on copyright conferring  exclusive rights or merely a right to remuneration.  There are many other users of copyright material as well as the private individual.  For example, there are libraries and education, those wanting to offer content services, and those such as broadcasters, producers and publishers who are both right holders and users.  A right to say “no” may be argued by authors as being essential in order to stop use of their material in ways they deem unacceptable, but when should they be able to stop use and when should they just be entitled to remuneration?  And can moral rights be part of any solution, for example by adding a new moral right regarding certain types of objectionable associations to the existing right to object to derogatory treatment of the work?  A right to say “no” may be argued by investors as crucial in order to be able to control, and so maximise the revenue from, the first exposure of the material to the public in various ways, but does this argument really justify a right to say “no” for the entire term of copyright?

Of course, possible changes to the term of copyright can be debated too, and a key issue here may be the extent to which copyright for one thing can be justified because it leads to revenue that can be invested in creating another thing, which may itself never be successful?  Debates about copyright do not always seem to acknowledge the potential difference in how a policy issue might be decided when looking at copyright as a reward for creativity, that is facilitating payments for the time spent creating in the past, as opposed to copyright which raises money to invest in creating something else in the future.  The issues that would need to be debated here have certainly now strayed into areas where EU and international law do not permit the UK to unilaterally change anything.

I have probably adopted the usual policy maker’s approach in writing this paper, namely to plagiarise any good ideas.  I can only apologise for this and ask that everyone feel acknowledged as necessary.  I also no longer have any responsibility for making policy in the UK, so nothing in this paper need constrain the policy makers.  Indeed, my work in the last few years as a consultant has given me the opportunity to understand the position of certain stakeholders better, but I may therefore also be less balanced than I was in understanding the issues!

So, to conclude, deciding what is in the public interest in any area is hard and copyright policy is no exception.  For example, it may be in the public interest to remove any copyright constraints where excerpts of content need to be used for news reporting, but beware, say, lobbying from people claiming a “public interest” in removing all copyright constraints from someone who wants to circulate the last chapter of a top-selling book just because the public are interested!  Policy makers must ultimately distinguish reasonable concerns from indefensible claims in order to identify fair policy solutions.  And gaining acceptance for any policy, as well as encouraging effective voluntary solutions to emerge, can be facilitated by both public and private mediation between stakeholders, so that different interests truly appreciate each others’ perspectives.  A good policy decision may then be one that no-one is completely happy about, but hopefully it is one where everyone can see that they were at least listened to.

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Judith Sullivan

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After graduating in natural sciences from Cambridge University, Judith Sullivan worked in the research department at Glaxo Pharmaceuticals, and then later became a patent examiner.  In 1984/5 and then from the early 1990s until 2005, she was part of the directorate developing intellectual property policy for the UK Government.  Much of that time was spent in the copyright policy making team, which she ultimately led before leaving to become an independent copyright consultant.  She was involved in developing copyright policy on a number of issues, including copyright enforcement, new exceptions benefitting visually impaired people and UK implementation of the 2001 EU copyright Directive.  As a copyright consultant she has, in particular, written a study for WIPO on copyright exceptions and visually impaired people, worked for the British Screen Advisory Council on a number of copyright issues and, more recently, provided policy advice to the States of Jersey on updating its copyright law.