Hargreaves IP Review : first impressions

The Hargreaves review, or as we should call it, Digital Opportunity: A Review of Intellectual Property and Growth, is finally out, and the blogosphere is awash with comment. Like many people, Pangloss has only had a chance to glance at it and note that the key recommendations are described thus [my italics added]:

• an efficient digital copyright licensing system, where nothing is unusable because the rightsowner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.
  

Most of this seems at first sight to be very good news. The emphasis throughout on an empirical evidence base for IP policy is quite staggeringly refreshing in a field which is known to be the most lobbied by partisan stakeholders of any economic policy area. Much of this, one hopes, comes from the fact that serious academic economists , not paid by any industry or rightsholder sector, have contributed in depth to the Report. There is a formidable list of supporting evidence and documents which will be a great resource for those working in the field. In particular the restraint in paragraphs like this is to be treasured:

"No one doubts that a great deal of copyright piracy is taking place, but reliable data about scale and trends is surprisingly scarce. Estimates of the scale of illegal digital downloads in the UK ranges between 13 per cent and 65 per cent in two studies published last year. A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria. Meanwhile sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested."

Rightsholders have claimed it as a victory that no US style general exception for "fair use" (or even "transformative use" as Gowers put it) has been proposed: this is rubbish, as all sides know that would require rewriting the EU Infosoc Directive, which would take countless and possibly fruitless years of negotiation. Instead the report suggests the UK uses to the full the exceptions that are available within the EU framework, including parody, archiving, data mining and format shifting exceptions, which would finally allow the long suffering public to legally rip their own CDs to their own iPods. This is all good stuff, as the British Library have already said - but it has to be remembered the Gowers report recommended almost exactly the same things several years back, and precisely nothing happened. Let's hope Hargreaves won't go the same way.

The most unexpected outcome was probably the attention paid to the way that "patent thickets" increasingly commonly stifle innovation and hinder new intrants with new technological ideas. My colleague Technollama, a long time open source and open science advocate has written approvingly of the plans announced , which is good enough for me.

My own interest is most piqued by the recommendation that the Government bring together rights holders and other business interests to create the world’s first Digital Copyright Exchange. The idea behind this proposal is that it will make it easier for users to obtain licences of rights holders' works for digital exploitation, in the hope that this will help drive digital innovation - for example, perhaps finally allowing ISPs like Virgin to offer legal P2P for a flat fee, something which major music rightsholders have stymied for several years by refusing to issue blanket licenses for unlimited sharing. The history of Spotify is also instructive here - though they have had huge success in parts of Europe, their launch in the US has been endessly delayed by the music rightsholders refusing to play ball. Every new online service suffers from barriers to offering comprehensive current and back catalogue. It is extremely heartening to see a UK government review say upfront that the future for the content industries lies not with ever more draconian IP enforcement strategies, but with creating a market where attractive licensed content is available in ways that rival and compete with the illegal market; and where the main aim is not to alienate the potential consumer but to offer him/her a great product.

Not coincidentally , Pangloss has just come to exactly the same conclusion in her own report for WIPO on the Role and Responsibilities of Online Intermediaries in Copyright which will be launched very shortly in Geneva. Some parts of the EU policymaking machine also believes better cross licensing and collecting society arrangements are the longterm answer, not anti consumer measures like restricting services in some markets, and promoting graduated response. Hopefully the UK will now make these points during the upcoming renegotiations of the IPRED Directive.

To quote again:

"Such research as exists indicates that we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement. Instead, Government should respond in four ways: by modernising copyright law; through education; through enforcement and by doing all it can to encourage open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers."

However, as one blogger has already noted ,the proposal is likely to be resisted to the teeth by some large creative industry rightsholders . Taylor Wessing note:

"Issues that arise include:

• Who will police whether rights are being accurately recorded within the Exchange? The opportunity for abuse is immediately apparent, with many disputes over ownership being flushed out at the outset of the Exchange.
• How will limitations on licences (e.g. territorial restrictions or particular restricted uses) be recorded? Some licences will have a string of limitations attached to them, making the Exchange quite complicated to navigate for a lay person.
• Who will fund it? It is unlikely to be the Government given these times of austerity. Therefore, funding is likely to come from within the creative industries. Is this a cost that the industry can stomach or will this be seen as yet another cost to the creative industries, along with those of tackling digital piracy?

Finally as expected the report makes no new recommendations concerning the Digital Economy Act: it was known this would be off limits given the uncertainty around the judicial review. Given that there is still a very interesting Chapter 8 on enforcement (covering counterfeit goods and a possible small patent court claim for patent owners, as well as copyright), which concludes by recommending that

"When the enforcement regime set out in the DEA becomes operational next year its impact should be carefully monitored and compared with experience in other countries, in order to provide the insight needed to adjust enforcement mechanisms as market conditions evolve. This is urgent and Ofcom should not wait until then to establish its benchmarks and begin building data on trends."

Interesting times. In the meantime Hargreaves and his team are to be given every support in the hope these difficulties can be overcome - and that these proposals will not fester like Gowers.

Wow, NOT a File Sharing Consultation..

.. and not three strikes!

Instead the EU with remarkable common sense has issued a Communication suggesting some non legislative ways to (additionally) crack down on filesharing and counterfeit sales on the Internet.

"The Commission aims to ensure a highly efficient, proportionate and predictable system of enforcement of intellectual property rights, both within and outside the internal market. The current legal framework provides the tools to enforce intellectual property rights in a fair, effective and proportionate way.

Complementing legislation, the actions in this Communication aim to:

• support enforcement through a new EU Observatory on counterfeiting and piracy which will bring together national representatives, private sector experts and consumers to work to collect data on and analyse the scope and scale of the problem, share information, promote best practices and strategies, raise awareness and propose solutions to key problems;

• foster administrative cooperation across Europe by developing coordination to ensure that more effective exchanges of information and mutual assistance can take place. As a result, Member States are called to designate National Coordinators. An electronic network for information sharing will also need to be available .

• build coalitions between stakeholders to overcome conflicts and disputes, by developing collaborative voluntary arrangements that focus on concrete problems, such as the sale of counterfeit goods over the internet, and are capable to adapt quickly to changing markets and technology. Such agreements can also be more easily extended beyond the EU and become the foundation for best practice at global level.

The Communication results from the Commission's IPR Strategy for Europe adopted last year and builds upon the recent Council Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan."

Naturally, content industry unimpressed:-)

(via Michael Geist)

EDIT: Meanwhile however one asks of course, but what of the Telecoms Package and when is the conciliation process taking place, after the failure of the second reading procedure?

Helpfully , the new EDRI-gram tells us :

"Preparations are being made in the EU institutions for the expected third
reading of the Telecom Package. The timescale for the remainder of the
legislative process will be determined by the official communication of the
Council Common Positions to the Parliament. In theory, this can happen as
late as mid-October, meaning that the final agreement could happen as late
as the end of November or early December.

..The Member States can be expected to push for as much of the Common
Position as possible to be retained and to push again for the
"compromise" that was agreed with the Parliament negotiators on
Amendment 138 in the first reading (but not adopted). "

Watch this space!

Brandjacking and FaceSquatting

Interesting times (as ever) in the social networking sites/personal branding crossover world. One of the most interesting papers from Digital Convergence HK was by Lisa P. Ramsey, University of San Diego School of Law on "brandjacking", on social networks - the increasing practice of grabbing famous personal or corporate names on social networks, even if they're not you (or not exclusively you).

Twitter has had quite a history of this, as the current locus of choice for celebrity blogging - but it is also, less obviously, becoming of enormous commercial significance - just a few days ago Dell proudly announced it had sold c $3m worth of computers through its Twitter shop (though as one commenter wisely says, are these new sales or just diverted from other salespoints??)

To respond to this, Twitter has just announced a verified account process - at first rolled out only for personal, not commercial, usernames and aimed at famous names (eg the likes of Neil Gaiman and Stephen Fry, who have been plagued by imitators/admirers). The new service at the moment merely invites those afflicted to submit their details but not does not give any details of what evidence will be used to ascertain who is who , nor how to distinguish between two worthy competitors for the same name - eg my brother is called Jonathan Edwards and is a consultant IT and office automation lawyer, but there is also Jonathan Edwards the former medal winning triple jumper! Who should get the Twitter space? Neither is exactly Janet Jackson... and arguably though the sport one may be more famous, my brother can make better commercial use of this particular space?? Interestingly anyone can apply to be verified - so Pangloss has, sub nom Lilian Edwards! Let's see if they reply :-)

And even practically as Lisa was speaking, the social network "domainspace" expanded enormously with Facebook's sudden overnight launch of personal usernames. The resulting land grab and predictable accompanying furore of lost and fraudulent claims has been rather wonderfully, named Facesquatting and all kinds of virtual dust is still settling. The Grauniad say "Facebook says 500,000 users grabbed their usernames within 15 minutes of the system going live, with no reports of major squabbles so far."

Lisa suggested that as with domain names, the law of trade marks should be relevant to protect brands, and needs re examining to see if it could meet this kind of challenge. She then canvassed the kinds of problems that may result, familiar to those who've followed the ICANN wars. What about businesses whose name is a generic, like Apple Computers ? Should they get preferential treatment on Twitter or FB when they wouldn't in TM law?

Pangloss checked and on FB, Apple-we-know-and-love has Apple Store and Apple Ipod, but the page "Apple" has actually been registered by, er, a lover of apples. Yes, the green vitamin-loaded things! PG is quietly pleased at this triumph of nature over commerce :)

So should the Cox- lover be deposed by FB, or if they don't play ball, even sued under TM law, or fined under the US Anti CyberSquatting law, or local equivalents? If so, why? And what about Fiona Apple the singer, who sells most her records over the Internet these days, and also has an FB "be a fan" page??

Social networks were originally set up to allow people to be, well, social, not to sell things - and to be fans of things like pop groups, books, movies, comics and er fruit : all extensions of their personality. Yet as the Grauniad wisely suggest, it is likely the SNSs will bend over backwards to make provision to allow remedies against "facesquatting" etc because the businesses and the celebrities are the place where they will, if ever, find a revenue stream more reliable than mere ads. As the Grauniad adds : "

"In truth, though, I think the odd timing shows us something else: that the real target of Facebook usernames aren't users at all, but the companies, brands and high-profile celebrities who can be convinced to pay for services somewhere down the line.

And they've already had their usernames granted to them, regardless of the timing of the launch. Anyone else is just going along for the ride."

Multiple registrations on multiple networks (FaceBook, Twitter, Bebo, whatever) will also be a problem. The brand-owners are already aghast at the prospect of the extension of the URL domain name space to cover internationalised domain names (Kanji, Korean alphabet, etc) because they see this not as an opportunity to brand more effectively to their customer bases , but as creating hundreds of new domain names they'll have to buy up and police to avoid cybersquatting. What should be a blessing has become a curse. Interestingly, PG has been directed to a lovely tool to check whether your name is available on multiple SNSs - reportedly it has been much used in the Facebook username goldrush!!

Pangloss is deeply unsure if some new version of TMs and domain name law should be adapted or invented for the social namespace. For one, there is simply not, or at least not always, the same problem as there is with domain names used as URLs: that there can be only one. There is already more than one Lilian Edwards on Facebook (and I am lucky to have an unusual first name) but there can only be one lilian.facebook.com (and it is not me) or even liianedwards.co.uk.

Is it really helping any to give me yet more opportunities to fight it out with the other Liians ) at least one of whom has her own business, selling elephant drawings!!) ? Isn't the real solution here better granular search facilities on FB and other sites, not giving out and policing unique vanity URLs? There is already substantial evidence the public now overwhelmingly finds sites via Google not via typing in random URLs anyway.

But - as Lisa pointed out - is the issue not actually more of public confusion, than of brand maintenance? If I find a site called Dell on Twitter, will I assume it is the real Dell selling me reputable computers, not some rip-off merchant? Perhaps, but here as noted Twitter is already bringing in its own solutions (and asking businesses to pay for a verified site at some future point doesn't seem too wrong to me either, if it leads to $3m extra sales.).

In the Twitter celebrityspace there is also a rather cute emergent norm, that when a name has been snaffled, the celebrity renames as " -himself" - so eg Neil Gaiman is @neilhimself.

As well as these "norm" solutions, if the problem is public confusion, can't that be better met by enforcing existing public laws on false advertising, fraudulent commercial practices, etc, than by inviting vast swathes of private trade mark litigation, which might in turn need the reinvention of the ICANN UDRP procedure, international treaty negotiation, etc etc, all over again? This seems to me like a place where we should not in knee jerk fashion turn to an IP solution. We don't need more property for companies to fight over here, and given the costs of policing the brand, they possibly don't want it either; all we need are workable solutions for consumers.

Lisa pointed out correctly that most false advertising rules only apply to commercial actors - but this doesn't have to be so. In fact in the UK, it is an offense in advertising law to deceptively hold yourself out as a private person when you are in fact a business ( for more on this and the problem of the emergent hybrid consumer or "prosumer" see Christine Riefa's chapter on e-contracts in the upcoming - guess what - 3rd edn of Edwards and Waelde eds Law and the Internet.)

Let's stop and think a bit before we jump again to create yet more new IP rights, ok?

Pangloss is now at a hotel with a pool and a beach :-)) so she's going to try to take a break from all this intellectual fever!! Bye for now :)