miscellaneous factZ - The online home of Rufus Pollock

Yesterday, the European Parliament voted on the term extension proposal.

Unfortunately though opposition was substantial it was not enough to prevent the modified (70-year) extension passing:

• Amendment in favour of the rejection: 222 IN FAVOUR, 370 AGAINST, 10 ABSTENTION
• Key amendment to ensure benefits only to performers: rejected (no roll-call vote so numbers unknown)
• All other good amendments (no ex-post, lifetime of performer only): rejected (~150 in favour 400 against)

Final vote: 317 in favour 178 against 37 abstention

Though this is a depressing result this is not yet the end of the matter by any means: the Council has not yet resolved its position and there is a possibility of a second reading.

The level of opposition was also impressive given that there was strong support for the extension not only from the rapporteur (Mr Crowley), but also from the main political groupings (EPP and PSE) led by their shadow rapporteurs Mr Toubon and Ms Gill respectively (on a fairly obscure issue such as this most MEPs will have little time to scrutinize the matter and will usually follow the “party line” as determined by the party rapporteur and coordinator for that dossier).

Tomorrow, the European Parliament will vote on the issue of copyright term extension for sound recordings, known in Parliamentese as “the Crowley Report (A6-0070/2009) on the Term of protection of copyright and related rights” (Mr Brian Crowley is the rapporteur for this report and a strong supporter of the extension).

Extending term would be a tragic mistake and a blatant example of special-interest lobbying winning out of the interests of society as a whole.

Let us therefore hope that the proposal is rejected.

That’s the line being by some right-thinking MEPs including Eva Lichtenberger, Greens, Sharon Bowles, ALDE, Andrew Duff, ALDE, Zuzana Roithova, EPP, Christofer Fjellner, EPP, Guy Bono, PSE who have put forward a rejection amendment (see their excellent justification below). But they need all the support they can get and remember: it is never too late to act.

Rejection Amendment Justification

The draft Directive is poorly conceived and disproportionate. The Commission claims that the measure is needed in order to benefit poor performers. However, the proposed regulation and procedure is complicated and over-bureaucratic. The biggest beneficiaries will be the four largest record companies. Individual performers will only receive very small amounts each.

Performers could be helped much more effectively by regulating copyright contracts and collecting societies, by setting up appropriate social security and insurance schemes, and by reconsidering remuneration rights and license tariffs.

The draft Directive leaves a large number of questions unanswered. Additional impact assessments are needed to see which measures are best suited to help those performers really in need, to limit the negative impact on consumers and jobs, and to establish if regulation is best done at state or EU level. In these circumstances, it is not wise to proceed to make the long-term permanent changes proposed.

Some of the particular problems are:

The extension of copyright to 95 or even 70 years will increase the revenue of trust funds of deceased performers instead of living performers.

Many performers cannot produce proof for the performances they participated in during the past decades. It then becomes difficult to assess their rights to payments.

The proposed regulation could cause legal uncertainty for all existing audiovisual productions as it will be unclear if the material used is subject to sound copyright.

There is a risk that all material that is not commercially viable will not be marketed by the copyright owners and will become inaccessible for public use.

Small record companies currently publishing copyright-free material risk going bankrupt.

6.5/10 (8/10 for “genre”). Small but (almost) perfectly formed. It’s hard to imagine many people outside the UK getting excited by this recounting of the ins and outs of Brian Clough’s early career as a football manager, but this production was elegantly put together with very effective use of (what look to have been) limited resources. Particularly noteworthy were Sheen’s performance and the quality of scene and shot composition (especially striking were several flat-on side-shots, for example that of the quay at the end of Clough and Taylor’s falling out argument on their Spanish holiday).

On March 18th I was in Brussels to give a talk as one of two “invited experts” (the other being from the Motion Picture Association) to a session on the topic of “Copyright Enforcement” held by the Working Group on Authors’ Rights of the European Parliament’s JURI Committee. Below is the slightly tidied up text of the talk I gave.

Talk Text

Good afternoon and thank-you for inviting me here today. To introduce myself I’m the Mead Fellow in Economics at Emmanuel College, University of Cambridge and an Associate at the Centre for Intellectual Property and Information Law also at the University of Cambridge. I believe that my colleague Professor Bently came here in October to speak to a similar gathering that time on the topic of copyright term extension.

To begin with I want to make a few general points before proceeding to the specific area — enforcement — that today’s meeting looks at.

The first point I would like to make is when we talk of copyright we must remember that it is not a single unified thing but, in reality, a bundle of different attributes. For example, there is the crucial distinction between:

• Economic rights: the ‘monopoly’ right to control reproduction and distribution of the work (and thereby to control, at least partially, its price). We should also note that in some cases this ‘exclusive’ right may be converted into a right for equitable remuneration.
• Moral rights: rights of attribution and integrity. These an exist separately and independently of any economic rights. Furthermore they are often norms that we respect irrespective of any copyright: I still credit Shakespeare for Romeo and Juliet even if it is in the ‘public domain’.

Furthermore these economic and moral rights have attributes such as:

• Term, i.e. the length that the right lasts.
• The breadth of the right. For example, in the US copyright for performers is ‘narrower’ than in the EU because certain uses of recording (notably broadcast on the radio) need not be paid for. There are also limitations and exceptions related to educational use or use for criticism where permission need not be sought from the rightsholder.
• Lastly there is enforcement. After all one can have very ’strong’ rights but then be permissive in enforcement, or, conversely, have more limited ‘rights’ but be very strict in the enforcement. I would also point out that enforcement is a social as well as legal matter: when I attribute an author the main reason I do it is not because I might get ’sued’ if I did not but because it is the right thing to do — people should be credited when their work is used wherever it is reasonable to do so.

The value of a right is determined by the interplay of all of these. Deciding on the level of enforcement is therefore the same problem as deciding on the level of copyright generally. And we can’t think about this without asking about the purpose behind copyright’s existence.

The answer here is a simple one: copyright is instrument created in order to promote the interests of society as a whole not to promote the interests of the producers of creative works. Of course we care about remunerating producers and artists both because they are members of society but also, and more importantly, because by remunerating them we ensure the creation of more works which society as a whole can enjoy.

Nevertheless, it is essential to keep in mind that the purpose of copyright is broader than to promote the interests of a single group. This fact then is central to any assessment of the form and level of copyright and it has important implications. For example if we have a proposal that will help artists but overall harm society we should not support that proposal. Moreover, it is also a fact that is sometimes neglected, for example this very working group is entitled “Working Group on Author’s Rights” not “Working Group on Copyright and Social Welfare”.

In using copyright to promote social welfare we are then presented with a basic trade off between the benefits of the monopoly in the form of the new work created as a result of the monopoly accrued rents, and its in the form of reduced access to creative works. We are therefore seeking a balance: we want enough copyright but not too much. And, returning to our point above, this logic applies to enforcement as much as any other aspect of the “copyright package”.

In particular: if there is already ‘too much’ copyright stronger enforcement will make things worse. If there is too little copyright then more enforcement will make things better. Now, I should make clear that my personal preference is for strong enforcement of fair rules.

Unfortunately, the rules currently aren’t fair — for example copyright is almost certainly far too long. As such it is hard to justify a push for strong enforcement. In addition, I would also argue that the unfairness of the current copyright regime is also a major reason why strong enforcement will be difficult, if not impossible, to achieve in practice. Why?

The reason is simple: the successful enforcement of any rule depends on that rule having public legitimacy — being considered reasonable by the majority of the populace. Currently that is not the case: copyright suffers from a serious lack of “respect” and a marked lack of public legitimacy.

If you wish to change that we need the rules to be fair and balanced — it hard to have respect and enforcement of an unfair system. For example, copyright term should be reduced and we should expressly avoid extensions, especially retrospective ones like that currently before Parliament in relation to sound recordings. Such policies appear to reflect nothing more than special interest lobbying and this can only make copyright’s “marked lack of public legitimacy” worse — I would note here the recent joint statement put out by European IP law centres who emphasized that retrospective term extension would seriously undermine respect for copyright and make “piracy the easy option”.

It will be almost impossible to enforce unjust rules. If we are to have strong enforcement it therefore must be of just rules. I would also argue that just rules must also be reasonable rules. For example, is it reasonable in an age of costless reproduction to continue to promote a model of copyright based on exclusive rights? Much of the “problem” of unauthorised file-sharing could be resolved if we moved to an alternative compensation system based on an equitable remuneration right approach. In one fell swoop we would eliminate the biggest “enforcement” problem going while also increasing the size of benefits to be divided between users and makers of creative works. Surely this is the more reasonable, and sensible, option!

As I am coming to the end of my allotted span let me conclude. Copyright must be designed to promote the welfare of society as a whole not one specific group. As such, in designing any aspect of copyright, including enforcement, it is important not to have too much as well as not to have too little. We must also remember that copyright, like any other rule or law, depends for its enforcement on willing compliance more than explicit punishment. As such the most important factor in ensuring better observance of copyright is to increase its legitimacy which it markedly lacks at present. To achieve that we need to create a more just, and more reasonable, copyright regime. Thank-you.

6.5/10. Very competently done tale of heroes and villains in the world of WWII Danish resistance with strong central performances.

Yesterday (Monday) The Times published an open letter signed by many of the leading UK academics concerned with the issue of copyright term extension.

The letter, of which I was a signatory, is focused on the change in the UK government’s position (from one of opposition to a term extension to, it appears, one of allowing an extension “perhaps to 70 years”). However, it is noteworthy that this is only one in a long line long line of well-nigh universal opposition among scholars to this proposal to extend copyright term.

For example, last April a joint letter was sent to the Commission signed by more than 30 of the most eminent European (and a few US) economists who have worked on intellectual property issues (including several Nobel prize winners, the Presidents of the EEA and RES, etc). The letter made very clear that term extension was considered to be a serious mistake (you can find a cached copy of this letter online here). More recently — only two weeks ago — the main European centres of IP law issued a statement (addendum) reiterating their concerns and calling for a rejection of the current proposal.

Despite this well-nigh universal opposition from IP experts the Commission put forward a proposal last July to extend term from 50 to 95 years (retrospectively as well as prospectively). That proposal is now in the final stages of its consideration by the European Parliament and Council. We can only hope that they will understand the basic point that an extension of the form proposed must inevitably to more harm than good to the welfare of the EU and should therefore be opposed.

The Letter

Dear Minister,

Open Letter re. Proposed Copyright Term Extension for Sound Recordings

We are writing because of the sudden, and unexplained, change of Government position in relation to copyright term extension for sound recordings.

In 2006, the Government received the recommendations of an independent and comprehensive review of intellectual property policy, commissioned by the then Chancellor Gordon Brown. The review, led by Andrew Gowers (a former editor of the Financial Times) took “an evidence-based approach to its policy analysis”, supplementing a formal call for evidence with commissioned external expertise.

The review examined several extension options, including the increase to 70 years, and explicitly rejected extension as being a bad deal for the UK in cultural and economic terms. The Government, led by the Treasury which was then headed by Gordon Brown, clearly supported this view.

What then occasions a sudden volte-face two years later and only a few weeks after statements from the Department for Innovation, Universities and Skills (DIUS) indicating support for the original decision? We are not aware of any new evidence that has come to light, and the only independent study available since then, that of Professor Hugenholtz at the University of Amsterdam, has also been highly critical of extension.

There has been some talk of ‘moral arguments’ for extension but it is hard to discern a compelling ‘moral’ case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the “marked lack of public legitimacy” which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

Yours Sincerely,

Professor Lionel Bently, and Dr Rufus Pollock, Centre for Intellectual Property and Information Law, University of Cambridge

Professor Martin Kretschmer, and Professor Ruth Towse, Centre for Intellectual Property Policy & Management, Bournemouth University

Professor Nicholas Cook, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London

Professor P.A. David, Emeritus Professor of Economics and Economic History, University of Oxford

Professor Graeme Dinwoodie, Chair in Intellectual Property Law, Queen Mary College, University of London

Professor Johanna Gibson, Director Queen Mary Intellectual Property Research Institute, Queen Mary College, University of London

Professor John Kay, Chair, British Academy Copyright Review

Professor Paul Klemperer, Edgeworth Professor of Economics, University of Oxford

Professor Hector MacQueen, and Professor Charlotte Waelde, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh

Professor David M Newbery, Professor of Economics, University of Cambridge

Dr Mark Percival, Queen Margaret University, Edinburgh, Chair, International Association for the Study of Popular Music (UK/IRL)

Dr Martin Cloonan, Senior Lecturer, University of Glasgow, ex-Chair, International Association for the Study of Popular Music (UK/IRL)

Professor Danny Quah, Professor of Economics, London School of Economics

Professor David Vaver, former Reuters Professor of IP and IP Law and Director of the Intellectual Property Research Centre, University of Oxford

Richard Chesser, Chair, Trade and Copyright Committee, International Association of Music Librarians (UK/IRL)

6/10. Flawlessly acted and stylistically impressive but too impressionistic for my tastes — this was a film of vignettes lacking anything with sufficient continuity of direction to be termed a plot. As a result, unlike my experience of Sorrentino’s previous “Consequences of Love”, I was left rather cold. That said I’m still very much looking forward to his next film …

The Open Knowledge Foundation’s 2009 Open Knowledge Conference (OKCon), which I help organize, will take place next Saturday 28th March - less than a week away.

Full details including programme can be found either in this blog post or on the OKCon home page.

As usual this will be a fun and informal day so if you’re free this Saturday and interested in “Open” stuff come along to UCL and take part.

I should also add that for the two days before (Thursday + Friday) there is also the 5th COMMUNIA Workshop which is about Accessing, Using, Reusing Public Sector Content and Data which is being co-organized by the Open Knowledge Foundation together with the London School of Economics and taking place at LSE (all thanks to the tireless work of Jonathan Gray and Prodromos Tsiavos!).

8/10. I had been unimpressed by the comic book which I had read only recently. However, the film, in part thanks to its excisions and several major changes to the plot (esp. to the nature of Veit’s outrage), and despite its occasional moment of overblown and unnecessary balletic violence was a real triumph.

Background

I’m working on a EU funded project to look at the size and value of the Public Domain. This involves getting large datasets about cultural material and trying to answer questions like: How many of these items are in the public domain? What’s the difference in price and availability of public domain versus non public domain items?

I’ve also been involved for several years in Public Domain Works, a project to create a database of works which were in the public domain (especially recordings).

The Problem

Suppose we have data on cultural items such as books and recordings. For a given item we wish to:

1. Identify the underlying work(s) that item contains.
2. Identify the copyright status of that work, in particular whether it is Public Domain (PD)

Putting 1 and 2 together allows us to assign a ‘copyright status’ to a given item.

Aside: We have to be a bit careful here since the copyright status of an item and its work may not be exactly the same: for example, even books containing pure public domain texts may have copyright in their typesetting — or there may be additional non-PD material such as an introduction or commentaries (though, in this case, at least theoretically, we should say the item contains 2 works a) the original PD text b) the non-PD introduction).

Note our terminology here (based off FRBR): by an ‘item’ we mean something like a publication be that book, recording or whatever. By a work we mean the underlying material (text, sounds etc) contained within that. So for example, Shakespeare’s play “Hamlet” is a single work but there are many associated items (publications). (Note that we would count a translation of a work as a new work — though one derived from the original work).

Almost all the data available on cultural material is about items. For example, library catalogues list items, databases listing sales (such as Nielsen) list items and online sites providing information on currently available material (along with prices) such as booksinprint, muze or even Amazon list items.

Determining Copyright (or Public Domain) Status

With our terminology in place determining copyright status is, in theory, simple:

1. Given information on an item match it to a work (or works).
2. For each work obtain relevant information such as date work first published (as an item) and death dates of author(s)
3. Compute copyright status based on the copyright laws for your jurisdiction.

While copyright law is not always simple, step three is generally fairly straightforward, especially if one is willing to accept something that almost but not quite 100% accurate (say 99.99% accurate).[^peterpan]

[^peterpan]: Not being 100% accurate means we can ignore some of the “special cases” and one-off exceptions in copyright law. For example, in the UK the Copyright Designs and Patents Act para 301 contains a special provision which mean that “Peter Pan” by J.M. Barrie will never enter the Public Domain (royalties will be payable in perpetuity for the benefit of Great Ormond Street Hospital).

What is not so straightforward are the first two steps especially step 1. This is because most datasets give only a limited amount of information on the items they contain.

Frequently information on authors will be limited or non-existent, and they certainly may not be unambiguously identified (this is especially true of datasets containing ‘commercial’ information such as prices and availability). Often the exact form of the title, even for the same item will vary between datasets and that leaves aside the possibility of varying titles for different titles related to the same work (is it “Hamlet” or “William Shakespeare’s Hamlet” or “Hamlet by William Shakespeare” or “Hamlet, Prince of Denmark” etc).

At the same time, speed matters because the size of the datasets involved are fairly substantial. For example, there were approx 64 thousand titles that sold more than 5 copies in 2007 in the UK. If computing public domain status for each title takes 1 second then a full run will take 18 hours. If it takes 30s per title it will take 22 days.

Some Examples

To illustrate the difficulties here I present the results of two different attempts at computing the PD status for the list of 64k titles which sold at least 5 copies in the UK in 2007.

Example 1: Open Library

I ran this algorithm (by_work method) against the Open Library database via their web api. This was a very slow process. First, because web apis are relatively slow and second because, perhaps due to overloading, the OL API would stop responding at some point and a manual reboot would be required (to try avoid overloading the API we’d already added a significant delay between requests — another reason the process was quite slow). Overall it took more around 10 days to run through the whole 64k item dataset. The results were as follows:

Total PD: 2206.0
Total Items: 63937
Fraction PD: 0.0345027136087
Total Matched: 0.588469900058

As this shows matching was not that successful with only around 3/5 of items successfully matched. Part of this may be due to the fact that:

• I limit the number of title matches to 10 in order to keep the time within reasonable bounds
• The difficulty of allowing enough, but not too much, fuzziness in the matching process.

Overall, approximately 3.5% of all items were identified as PD (that being 5.8% of those actually matched). The PD determination algorithm was a conservative one with an item labelled as PD only if all authors were positively identified as PD.

Thus, this is likely to be lower bounds (at least assuming the match process was reasonable — and allowing for the fact that some PD items included non-PD material such as commentaries). It was certainly clear from basic eyeballing that a substantial number of PD works were either not matched or not computed as PD (because of incorrect authors or missing death dates).

Example 2

Our second algorithm ran against a local copy of Philip Harper’s NGCOBA database (data, code). The algorithm was as follows:

1. Matched by title and authors.
   • If match: compute PD status strictly (all death dates known and all less than 1937)
   • Else: continue
2. Pick first author and find all (approx) matching authors (allow extra first names)
   • If no match: Not PD
   • Intialize PD score to 0
   • For each matched author alter score in following manner:
     • If author PD: +1
     • If not PD: -3
     • If unknown (no death_date) -0.5
   • PD if score > 0 (Else: Not PD)

This algorithm took a few hours to run (this could likely be much improved with a bit of DB optimization and a move from sqlite to something better). The results were:

Total PD: 6404.0
Total Items: 63917
Fraction PD: 0.100192437067

As can be seen the fraction PD here was substantially higher at around 10%. One might be concerned that this was due to our more lenient PD algorithm (the problem was that without such ‘leniency’ a very large number of PD works/authors were being misclassified as not PD). However, basic eye-balling indicates that the number of false positives is not particularly high (and that there are also some false negatives).

Summary

1. Computing PD status is non-trivial largely because a) it is hard to match a given item to a work or person b) we lack data such as authorial death dates and dates of first publication that are required.
2. As such we need to adopt approximate and probabilistic methods (such as the scoring approach)
3. (Very) preliminary calculations suggest that between 3 and 10% of titles actively sold at any one time are public domain
   • NB: this does not mean 3-10% of sales were public domain (in fact this is very unlikely since few, if any of the best-selling items are PD)