Consultations, Coming and Going…
July has been a busy month.
Arrived in Berlin only to discover that two copyright consultations are taking place in Ireland – what excitement!: 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 internet service providers where their infrastructure is allegedly being by users for infringing purposes.
Although sceptical about such processes, I had worked on a submission to the EU Commission about the Enforcement Directive earlier this year, so I did throw in a rushed contribution. But the technical nature of these mechanisms largely elides the really crucial questions. What sectors are truly dependent on copyright, rather than just happy to take advantage of it? How extensive and significant economically are these sectors? What are the costs imposed on cultural users and consumers as a result? What way do these rules shape what type of culture is produced and the organisation of the industries that produce them?
On a narrower level of economic development the issue is basic: how can it be that in a country like Ireland, where Google employ more than 2000 people, there is no explicit protection of search engines, nor for the innumerable ways of aggregating and reusing information – the basic operating space for technological invention, innovation and diffusion – from copyright liability.
‘Fair use’ in the US functions as an affirmative defense for exactly these type of cases where works produced produced for one purpose or market,are transformed into something entirely different. Fair use is a statutory, general, defense to copyright infringement, applied on a case by case basis which renders it flexible and adaptable to unforeseen circumstances.
The Hargreaves report in the UK ultimately opted against advising the creation of this defense – why? Their argument was that it would create so much uncertainty, that the greatest beneficiaries would be lawyers paid to decipher the ambiguity for the interests involved. Further, due to the restrictions of European laws, agreed to by member states in blissful ignorance of their repercussions, the latitude to create exceptions and exemptions to copyright is limited to a list of about fifteen enumerated cases. Thus the introduction of such defense would require action at the level of the EU: an obviously unenviable prospect. Puzzlingly Hargreaves proposed the creation instead of another new European exception which would encounter exactly the same type of political obstacles:
“We therefore recommend below that the Government should press at EU level for the introduction of an exception allowing uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work…”
Digital Opportunity, p.47
Apart from the bureaucratic barriers to to its creation, it is also, well, vague, so maybe the lawyers still have something to look forward to. Go figure.
Google is so naturalised, through incessant everyday use ,that it may appear absurd to suggest that it could be under legal threat. Yet a review of case law in both the US and the EU shows the extent of the legally-manufactured obstacles faced by the company; various aspects of their services (image search, youtube, google news) been condemned in Belgium, France, Germany and Italy, amongst others. The search giant, of course, has more than adequate legal and policy resources to protect itself. My concern is for the next generation technologies threatened by copyright regimes: without either deep pockets or the anthropological dividend of mass adoption, they will always be under threat from those who hold economic power now.
Meanwhile the media companies are desperate to ease their access to injunctions against anyone deemed to be a ‘contributor’ to copyright infringement. Friday last, Hollywood had a victory in the high court in London, securing an injunction against British Telecom, forcing them to deny their subscribers access to a site called Newzbin. Having already already lost a copyright action Newzbin was an easy target, but the precedent it sets is diabolical: innumerable online spaces contain activity that may be deemed infringing – should they all be shut down? Youtube and Vimeo too, as well as any site with the temerity to index torrents? And how will the Star Chamber necessary to determines a site’s bona fides be selected?
Securing a space for the experimentation in both engineering and culture, acknowledging that the changed nature of cultural production and the basic alphabet for technological innovation have the same root, should be the object of any changes made to copyright law. This means liberation from copyright, both for computer users with a new capacity to produce and distribute meaning, and for the innovation necessary to economic change.
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