Wednesday, 2 November 2011

UK copyright is about to change, did you know?

I joined the parliamentary information technology forum on 1st November for a discussion of the Hargreaves' review and to hear some expert evidence for and against it in the context of data mining.[1][2] I attended as a non-expert but as a board member for Wikimedia UK I was interested in judging possible impact on our future activities.

Hargreaves was commissioned by the Prime Minister to examine the issues with Intellectual Property and recommend changes, which there is now a commitment to adopt.[3] My layman understanding is that Hargreaves' analysis was from an almost entirely economic perspective, with a focus on how a future market in digital IP licensing could create a trading marketplace of IP to encourage UK business, as well as making it easier (supposedly guaranteed) to identify who the owner of any possible copyright is, and deal with the issues of orphan works and simplify license terms.

Possibly good things:
  • Though the recommendations avoid an equivalent to the USA's fair use, the changes would provide an exception for data mining in the UK where entire transient copies of works may be made for automated analysis, in most cases this currently being considered to break copyright terms. This would enable significant areas of research which at the moment are hampered in the UK by having to negotiate specific deals with publishers for data mining. The CIO for Nottingham University gave a good example of the currently impossible task of having already paid £5 million to publishers for access rights to academic databases and then having to attempt to negotiate separate terms and additional charges with each publisher for the confused area of data-mining.
  • Simplifying license terms would be of benefit to all, particularly as the recommendation is that contract terms would not be allowed to override license terms, for example JSTOR's contract terms for non-systematic use would no longer be enforceable in the UK.

Possibly bad things:
  • A number of publishers spoke out against the report, including the CEO of the Publishers Association, their concerns include that by allowing exceptions for data-mining this would introduce a risk of their databases being insecurely mirrored in other countries and that the changes would reduce the benefits of them acting as a "maitre d'" for access to copyright material.
  • From a Wikimedia cultural perspective the formation of a digital trading market will tend to default to allowing non-commercial use only, making more material impossible to use on our projects, and in the long term reduce the likelihood that digital collections could be used under a "no copyright known" rationale as such material would be likely to instead be exchanged on the basis of future speculative monetization that would ensure it always has a declared copyright owner.
  • Hargreaves proposes a system for dealing with suspected orphan works, in that any work not found on the national database would be licensed for reuse as an orphan work. Unfortunately, and somewhat bizarrely considering there is no copyright claim, the report suggests a "nominal" charge for use, presumably this would have the unintended consequence that no UK orphan works could ever be used on Wikimedia projects.

    There was time for social chat after the main meeting and I got to meet some interesting folks from the Pirate Party[5] as well as copyright experts. As the recommendations are just that, it is hard to say how firmly they would be adopted or implemented. In the case of Wikimedia we can already side-step many issues in terms of how UK law might affect our projects, however if cultural institutions (such as the BFI and British Library) default to using the suggested "research use only" restrictions for digital archives, this may cause arbitrary restrictions locking out the reuse we would like to see available for hosting on Wikimedia Commons, Wikisource, etc. If the recommendations turn into firm proposals we may need to help some of our partners consider the impact of changes in their policies for long term public access and open knowledge.

    4. (The full report is available for download here)
    6. Event: Hargreaves’ Review – Data Analytics / Text and Data Mining 01/11/11