kNOw Future Inc.

law, technology and cinema, washed down with wine

Hargreaves Review: A Spark in the Dark?

A week of sunshine in Florence, another week spoiled by the effusions of the European Union’s copyright vampires. Yes, that’s right, the music industry are back feeling chipper, this time with the news that the Danish government, which had previously been blocking the extension of the duration of copyright in sound recordings from 50 to 70, or even 95 years, has now reneged on their stance. This means the debate will recommence and the directive will go forward to the next stage…

Now for something more positive. In November, Toryboy David Cameron announced the launch of an inquiry into ‘intellectual property and growth’, premised on the concern that the current copyright regime might be impeding the UK from developing innovative companies like Google. Thus one of the directions to be investigated was the possibility of developing a broad fair use defense which would protect transformative uses, like that which exists in the US and which the big G has been able to take useful recourse to on any number of occasions. Of course ungenerous individuals like the record industry’s Alan Batt ascribe all this to the fact that one of his senior advisers, Steve Hilton is married to Google’s European head of communications, Rachel Whetstone. Obviously an unfounded suggestion of no merit, politics couldn’t possibly function like that, could it?

Former journalist and erstwhile professor of Digital Economy Ian Hargreaves was appointed to head up the Commission. Amongst his colleagues on the Commission is Jamie Boyle, an emigre Scot who has been at the forefront of IP criticism for twenty years, and author of one of the classic texts in the area: Shamans, Software and Spleens. Jamie also writes a column for the Financial Times on these subjects, and has turned it into a useful platform for demanding that changes in IP law be based on an evidence-based argument rather than on hysterical rhetoric or the power of lobbying. Of course he’s a bit mad, because important political decisions couldn’t really be made like that could they?

Five months thus was spent collecting submissions and ‘evidence’, and it makes for interesting reading if you have the patience – there were over four hundred submissions, and that from the Open Rights Group alone is 84 pages long. The various copyright industry trade associations pitched in with a lot of documentation as well. Google commissioned a report on the impact of copyright law on digital SME’s as well as a position paper of their own. On the other hand Getty images made a submission that wasn’t so enthusiastic about reform, but then they think that IP is the oil of the 21st century…

The report is due at the end of April, and should be pretty interesting. I have been arguing for some time that pushing on the fair use/dealing question could be fertile for copyright critics as it’s one of the areas where cost to innovation can be illustrated most clearly. Furthermore there are precedents for these type of propositions receiving support from other quarters. In recent years both the IVIR study on the EU Copyright Acquis and the UK’s Gower Commission floated/recommended the creation of such a defense, and as the nasty rumours about Google demonstrate there are signals that it has support in some powerful business circles. A sample of the debate engendered can be gleaned from a podcast produced by the RSA on the occasion of a public discussion organised on the topic of the review,

As i mentioned in my post about Ireland a few weeks ago, a similar proposal is afloat there as well. What remains to be seen is whether this would require an EU Directive. The problem derives from Directive of 2001/29 on Copyright which contained an exhaustive list of all exceptions and amongst them there is no mention of ‘transformative use’. In the Uk ‘fair dealing’ has traditionally covered the use of materials and commentary, thereby often effectively protecting a sub-section of cultural uses, but commercial uses can’t be shoehorned into that. In any case, it would be healthy to see the European debate on copyright shift its axis towards such questions. Needless to say the content industries will fight such a move tooth and nail.


April 13, 2011 - Posted by | /, copyright, technology, UK


  1. Very interested to read in your post about the question of whether “a broad fair use defense which would protect transformative uses” requires an amendment of EU Directive 2001/29 and your mentioning IViR. Gowers in recommendation 11 of his review in 2006 thought that it would require amendment of 2001/29.

    However, I’m not so sure. If I could just quote from a post covering Intellectual Property Rights on my project blog for Scibella


    “True enough the whole body of USA fair use runs against the EU infosoc directive but a restricted version, recommendation 11 of the Gowers Review on transformative works could be unilaterally introduced in the UK. The EU have an IViR (Amsterdam) study that says Gowers seeking change at EU level is wrong as EU directive does not cover harmonisation of “adaptation”. See the Scibella submission to the IP review for more detail.(pp 4-5)

    IViR spell it out it even more clearly in their response to the EU green paper on copyright in the knowledge economy about user created content

    “First, systematically, this question seems to derive from a misunderstanding of the legal structure of the Directive. The Directive does not harmonise a right of adaptation, nor does its catalogue of permitted exceptions relate thereto. In other words, insofar as an exception would allow certain transformative uses, it would have no place in a revised Directive, unless the Directive’s scope would be broadened to include a right of adaptation. Absent harmonisation of the adaptation right, Member States remain autonomous and may elect to codify exceptions or limitations to this right to permit certain non-commercial transformative uses.” ”

    What would be of great interest me are any opinions/papers which counter this IViR opinion. As yet I have not come across any.

    Comment by Pete Carroll | April 14, 2011 | Reply

  2. re: my comment on “transformative uses” requiring amendment of EU Directive 2001/29

    Sorry about this but could I just correct the link to my submission to the Hargreaves review to (pages 4-5) the link in the quotation appears to be broken


    Comment by Pete Carroll | April 14, 2011 | Reply

  3. […] a proposition to introduce a ‘fair use’ clause to local legislation (rerunning the Hargreaves inquiry), and regarding an amendment designed to enable rightsholders to obtain injunctions against […]

    Pingback by Consultations, Coming and Going… « kNOw Future Inc. | August 1, 2011 | Reply

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