Monday, 6 November 2006

Digital rights, intellectual property (IP), internet and UK law: update - CD ripping, etc






Just to add to the chorus of approval for the 29 October 2006 report Public Innovation: Intellectual property in a digital age by William Davies and Kay Withers of influential thinktank The Institute of Public Policy Research, which report has been widely covered e.g. by the BBC, by Creative Commons driving force and luminary Lawrence Lessig, even by the Financial Times newspaper.

You can get the executive summary PDF (requires brief registration) or, as an IPPR blog post mentions, download the full PDF report for free (NB it's 104 pgs long).

The contents of the report will hopefully be taken into proper consideration by the Gower review on intellectual property in the UK. I mentioned the IPPR research in my previous post on IP and digital rights in the UK.

CD ripping for personal use should be legalised

The main focus of the press was on the IPPR report's call (which many have been sounding for ages) to legitimise the copying of CDs for personal use (but not of course copying by commercial pirates). Yes, that's right, in the UK ripping bought CDs to transfer music that you've paid to your MP3 player or MP3 phone is a breach of copyright and illegal, although many people don't realise that. Indeed, back in May 2006, a survey by the National Consumer Council found that "Over half of British consumers are infringing copyright law by copying their CDs onto other players they own... highlighting the absurdity of current copyright law. Three in five (59%) thought copying was perfectly legal, despite the fact that current UK law does not provide a right to reproduce copyrighted material for private use - including CDs, DVDs and downloads."

As I've banged on about before, in the USA there is a general concept of "fair use" of copyrighted works, with factors to be considered in deciding what is or is not fair use; in the UK (see the unofficial version linked to from the UK Patents Office's page on copyright) there is no longer any GENERAL concept of fair use, but rather certain narrow categories of things (like private research or reviews/criticism) which are specifically considered to be "fair dealing". If something which would violate someone else's copyright is not within one of those specific categories, it just can't be "fair dealing" legally, in the UK, and would not be allowed even if in common sense terms one might consider it "fair use". (There used to be a broader concept of "fair dealing" but its scope has been significantly reduced, and I happen to think it's gone too far in the direction of rights holders).

The report notes that:
"Fair dealing in copyright is unclear, for example, and often left open to interpretation by rights-holders and users alike. Attempts by private firms to define fair dealing has increased risks that certain actions that have previously been thought of by citizens as ‘fair’ are now restricted. In particular, there are demonstrable problems with contracts and licences and, in enforcing these, DRM tools. This report argues that this has serious implications for society in general, but in particular, negatively impacts people with accessibility
issues, academic researchers, archivists, and consumers where problems arise with interoperability and access."
If a law is an ass, if a law is perceived to be unfair, people are going to lose respect for the law, and cease to obey it - and that's the start of the thin end of the wedge. Outdated copyright laws that aren't appropriate for modern times need to be updated so as to maintain a fair balance of interests between producers and consumers.

"The report’s key recommendations include:
Developing a model of IP policy that places knowledge as a public resource first and private asset second and promotes recognition of the overall coherence of this model. We argue that this should not be perceived as ‘anti-business’; instead it will deliver both cultural and economic benefits and will underline the economic importance of IP protection as benefiting the rights holder in order to ultimately benefit the public.
Creating as strong a political voice for public domain as currently exists for other interests. This is not to diminish the claims of these other interests, but to ensure the full picture – in both the short and long term – is taken into account to enable effective policy development. We assert that high quality public domain is both a cultural and an economic good and that the Government should make steps to develop and defend it, through initiating the establishment of a UK Centre for Public Domain.
Providing better legal protection to ensure that consumers, librarians, archivists and commercial researchers can pursue non-commercial objectives without fear of recrimination.
● Assisting small and medium-sized enterprises (SMEs) and individual creators to better utilise the IP system, by creating cheaper routes to enforcing IP rights and reforming the process of registering patents on a European level.
● Renewing the Patent Office with a wider mission that encompasses the public interest and takes a lead in promoting and undertaking research to assess the effectiveness of public policy in this area."

I especially support the bits I've put in bold, not surprisingly. I say again, the UK's copyright laws just aren't suitable for the digital age, and don'need to strike a fair balance between copyright holders on the one hand and consumers and society as a whole on the other.

There are positive signs that the world is finally moving in the right direction, e.g. in Canada the CEO of telecomms company Telus being reported as publicly recognising that the copyright regime no longer struck a fair balance between creators and consumers, and the call for an international treaty on Access to Knowledge or A2K (info mainly via Quicklinks).

Other recent developments

I've updated my previous post to include mention of the IPPR report and also some other recent developments where UK governmental bodies are considering and possibly thinking of changing the law in the UK to deal with digital or internet issues, which I won't repeat here, e.g.

No to software patents

Hooray. Out-law reports that in August 2006 the UK Court of Appeal refused to grant a patent for certain software, in the case of Aerotel (Neal Macrossan). The report says the court "ruled that Macrossan's invention was both a business method and a computer program and therefore not patentable."

So it's now clear that we won't be following the US line, hopefully. Patenting software can stifle development, in the view of many (including me).

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