The UK's copyright landgrab: The FAQ
Everything you wanted to know about the Instagram Act, but were afraid to ask
Q. But how can something digital have a 'property right'?
Whether the creation is on paper, or in bits, doesn't really matter. That doesn't mean it isn't protected by strong rights. Remember: it's the rights that are property-ish. Now we can, for rhetorical purposes, pretend that all this is an illusion. In recent years, some academics and the thicker elements of our “intelligentsia” have argued that intellectual property rights aren't really rights, and that property isn't property.
Some have even made a lucrative career out of this rhetorical conjuring trick. This view is held by the authors of the UK landgrab: they view IP not as property, but, in Modern Government Mandarin-speak, as "a framework".
"So, in their view, IP is nothing fundamental, really, just a bit of Meccano to be fiddled with and re-configured at will."
But reality eventually catches up with everyone - even utopian academics and armchair dabblers. Strong international treaty and law protects these individual rights, and there are consequences to messing around them with them. There's also social reality: how people think and feel and treat each other. That small, awkward fact that if you take somebody's creative work away from them and exploit it without their permission, and without paying them, they'll let you know how they feel about it pretty quickly.
We actually feel very “proprietorial” about our creations; we regard them as an expression of the human individual, and this was the big French contribution to the development of IP. Even in the old Soviet Union, hardly renowned for its conscientiousness towards rights in general, copyright was regarded as a property right - it's just that in the Soviet example there could only be one owner: the state. So the current UK rhetoric doesn't make these strong laws, or the principles behind them, go away.
All of this means that when you make a break with agreed international systems you become an outlaw. The authors behind this law don't think copyright is a property. As a result, the UK will soon face the reality that being an outlaw has a cost.
Q. Why are property rights so important, then?
You can't have a market without property rights. Markets are the least bad way we've devised of stimulating the production of creative works and rewarding people who make them.
For sure, we could raise taxes and reward every Instagram post, but in the austerity era, with essential social services under pressure, there's no appetite anywhere for creating new taxes to pay for the culture industry. Subsidised culture, like the opera, is very much the exception and not the norm. It's in our interests to have a healthy trade in creative works, whether you're amateur or professional, creator or consumer, so the creators of those works are properly rewarded. They've worked very well until now, supporting an incredible diversity of businesses from indie dubstep labels to Hollywood.
Evidently, some people find attaching money to cultural goods distasteful in the digital era. The idea that "property isn't property" arises from this intellectual prejudice, and it's enthusiastically adopted by large Silicon Valley companies and messianic academics alike. What this means in practice is only distributors and third parties can pocket the value of your work - and not you.
Q. Just how am I protected by international law? Can I opt out of the UK's landgrab? If the UK is now a rogue state, what happens next?
Member states who go rogue on IP - as the UK has just done - face a highly uncertain future in the modern world. Three international treaties are particularly important. The Berne Convention first specified that countries who sign up must pass a three step test. One of these steps means any changes a signatory nation wants to make to copyright must "not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
This test is also found in the UN's World Intellectual Property Organisation copyright treaty and the TRIPS agreement on the Trade-Related aspects of Intellectual Property rights.
The UK is signed up to all three - and thinks the enabling legislation within its Enterprise and Regulatory Reform Act has got around this test - but experts disagree. The UK is also likely to fall foul of its obligations at the EU level under the EU Copyright Directive, and the recently-adopted Orphans Directive. Even the Nordic countries, which run an “Extended Collective Licensing” scheme, a tightly regulated one, limited by territorial scope. The terms of the Nordic ECL doesn't facilitate mass use of millions of images without the owner's permission; the UK's does.
Countries face trade sanctions if they go rogue. But before that happens that they're likely to face harm their own creative industries who first need to thrive in their own markets, and depend on protection abroad. So the land grab could be very bad news indeed for the UK, which is a net exporter of its intellectual capital; it exports more than it imports.
Q. Sounds bad. How did it happen?
The landgrab is the work of Britain's most powerful copyright “tsar”, Edmund Quilty of the UK's Intellectual Property Office, and his team. The IPO doesn't doesn't think IP is property - even though Parliamentarians have warned him to stop being so patently ridiculous.
In 2006 the dusty old Patent Office was given a New Labour-style makeover, rebranded the IPO, and allowed to set policy. Quilty, a career civil servant who previously worked in science policy and arms exports, joined the IPO in 2008 as director of copyright and IP enforcement. His previous ideas included wanting to make all copyright opt-in (which is impermissible under Berne) and the 2010 orphan-work legislation that was tacked onto the Digital Economy Act but removed from the final bill, as we reported last November.
Ian Hargreaves denied that Quilty's IPO wrote the "Google Review", while admitting that he relied “very heavily upon the expertise and unstinting hard work of the IPO team”. Critics say the direct handiwork of the IPO is unmistakable.
Q. But I thought ministers are supposed to be in control of their civil servants?
In theory, yes. The UK's Civil Service Code specifies that: "Civil servants are accountable to Ministers who in turn are accountable to Parliament" and the British prided themselves on a meritocratic public administration that was one of the least corrupt in the world. These days, however, looking after the kids needs constant vigilance.
In recent years some ministries stopped looking after their sectoral interest and began to follow a higher calling, serving what they believe to be "the greater good". This can run against the national interest.
IP is just one of several areas (energy policy is another) that have become hotbeds of activism.
Even though IP-based industries are one of the UK economy's biggest successes, copyright ministers come and go on yearly basis; there have been three copyright Ministers since the Copyright Landgrab was mooted last July. So inexperienced and junior ministers rely on their civil servants' "expert advice". This means relying on Britain's unelected copyright tsar, and they're easy prey.
Q. Why aren't digital rights groups batting for me?
Digital rights groups are sympathetic to the land grab, and have been keeping a low profile. Many are still rooted in the 1990s-era view of copyright as a regulatory nuisance holding back technology, and not a powerful individual human right that successfully keeps chancers and spivs honest.
In addition, many “digital rights” groups receive funding from large technology companies such as Google. They'd probably take the same view without the funding, but as the saying goes: "It is difficult to get a man to understand something, when his salary depends upon his not understanding it."
You may argue that copyright groups have, in the past, inhibited the development of new markets. That's fine, but it's strange to use that in an argument which destroys current and future economic opportunity for billions of people. Must you take it out on the kids? Perhaps it's better to strengthen creators' rights instead. Your kids are more likely to thank you.
Q. So digital rights are really rights for computer equipment and operators, but not for humans?
That's about it. We're collateral damage.
Q. What happens next?
Watch this space. Litigation is brewing and the backlash has caught the IPO by surprise. How people think and feel about their creations was not factored into their digital utopia. It matters. A lot. ®
* A regulation that gives ministers the power to amend laws - mostly adding more detailed orders, rules or regulations - and which in practice doesn't always require full Parliamentary scrutiny.
** So called because it was first used by Henry VIII in the Statute Proclamation of 1539, giving him the power to make laws by proclamation.