Finding the Balance: the ALCS speaks out

The IPKat has just read a press release issued by the Authors Licensing and Collecting Society today, "Finding the Balance: the Management of Digital Rights". This document declares that the ALCS is seeking a resolution of the conflict between writers and users of copyright works. It reads, in relevant part:

" ... Private copying proposals

The exceptions to copyright law proposed by the Review, whilst eminently practical in setting out to achieve a system that is clear and fair for consumers, must apply that same fairness of principle to the creator. Without this, the incentives for creators to create, and writers to write, will diminish.

Copyright can appear complex and opaque. Users need support to understand that the essential purpose of copyright is to ensure a sufficient supply of creative activity from which they benefit in a myriad of ways. Its underlying purpose is to safeguard the economic and moral rights of creators. [Says the IPKat: this is debatable. The underlying purpose of copyright today is probably what it was in 1709 -- to provide a compromise between the competing and often irreconcilable interests of publishers, writers, consumers and investors. This is why the technologies change but the protagonists' positions remain broadly the same] Whilst technology has advanced considerably the underlying principles of copyright remain the same as set out in the Universal Declaration of Human Rights:

"everyone has the right to the protection of their moral and material interests resulting from any scientific, literary or artistic production of which he, or she, is the author". [Hmm, ponders the Kat. Doesn't the same Declaration say all sorts of nice things about the other side too?]

All forms of creativity, including writing, contribute to the success of the UK's economy, [says the IPKat: it seems that unauthorised uses, including piracy and counterfeiting, also contribute to the success of the economy, but not in ways we like to think about ...] whilst copyright protection given to creators and other right holders also protects the 7.3% of Gross Value Added (GVA)[2] to the economy.

Whilst it is clear that the increased availability of written works as a result of digitalisation offers golden opportunities to writers, the increasing use of digital technologies has generated uncertainty over the future of their economic and moral rights. [says the IPKat: but that has been the case for most of the past two millennia, surely? Writers have more often had little or no certainty, being rewarded at the whim of a patron or left to pursue their craft in penury. There is a school of criticism that believes that authors write better if they suffer for their art -- and that snails benefit from being starved before they're cooked.]

Along with all its realised and potential benefits, the digital age has brought new freedoms and opportunities that enable users to copy, download and distribute illegal copies of films, plays, television programmes, electronic books, poems and journal articles without seeking permission from right-holders. The process of copying and distributing works is now so easy that it has produced an imbalance between the freedom of the user, the profits of commercial intermediaries and the losses incurred by writers. [Once again, this assumes that the previous position was "the balance" in the first place.]

For example, the Gowers' Review recommends that `private copying' be decriminalised when users are copying legally-acquired content onto an electronic device for personal, private use such as transferring music bought on the internet to their iPod or MP3 player. This exception will not allow any form of onward distribution for commercial gain or otherwise via an electronic distribution network such as peer to peer or user-generated websites. That is fair and practical for the consumer; however, it fails to address the issue of the creator being given fair reward for the re-use of that work. [This has been a growth area in recent years, with the establish of lending rights -- but "re-use" is a controversial area. Would it cover reading over someone's shoulder on the train?] It also raises the issue of policing such an exception. Would it be enforceable? [Probably not]

`Three strikes'

The Government's current initiative of `three strikes and you're out'
concerning persistent downloaders of copyright-protected material and the ISPs responsibility of following a warning procedure and then terminating their account, is a noble message. However, public opinion expressed on numerous websites following the sign-up of major ISPs to this principle showed strongly that this was a step too far for the consumer who felt their privacy was being invaded and that the age of Big Brother had arrived.

One option to balance the interests of the user and creator in this instance would be to consider a centralised remuneration scheme which is commonplace in most European states. No comparable system exists or is being proposed in the UK and as a result writers, along with all other creators, are in danger of not receiving the economic and moral recognition that is their right for the continued re-use of their work. [Does the European experience suggest that their systems do confer this level of economic and moral achievement? Not much of a level, is it, wonders the IPKat]

Internet piracy

For any solutions to advance and achieve that balance, we must take account of the reality of the world in which we live. Consumers routinely acquire content illegally and take value from copyright works at the expense of the rights-holder. In 2006 alone, there was a 46% increase in illegal downloads compared to 2005. Any legislative and punitive frameworks need to be sufficiently robust to take account of Becker's model of crime that it is "a basic assumption of human behaviour that individuals will break the law if the expected benefit is higher than the risk of detection and the scale of the potential punishment ... [But doesn't Gowers take the view that, if most people do it and the risks of detection and punishment are low, it may as well be legalised?]".