TREND: Migration towards new intellectual property, copyright and patent regimes which accommodate technological innovation and new social patterns of consumption whilst supporting creativity and economic sustainability in both the developed and developing world.

The effective implementation of copyright and IPR regimes have always suffered potential disruption from emerging technologies from photocopiers to cassette and VHS tapes (ARS Techica – 100 Years of Big Content Fearing Technology). As motion picture lobbyist Jack Vallenti testified to the US Congress in 1982 on the looming dangers of the video cassette recorder (1982 Congressional Hearing on the Home Recording of Copyrighted Works):

We are going to bleed and bleed and haemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

Perhaps unsurprisingly the arrival of an increasingly global hyper-connected Internet combined with new technologies which support the rapid identification, replication and transmission of all forms of digital expression on an unprecedented scale have led to what many describe as a copyright crisis (Journal of the Copyright Society of the USA, page 166).

In his 2009 report to the Parliamentary Assembly of the Council of Europe, on the Future of Copyright in Europe, Christophe Geiger (Director of the Centre for Intellectual Property Studies at Strasbourg University) told the Committee for Science, Education & Technology that copyright is facing a crisis of legitimacy (see page 19). Earlier in 2009 the Interim Digital Britain Report commissioned by then Prime Minister Gordon Brown, called for a copyright framework which is effective and enforceable whilst identifying a critical disconnect between the current rules and emerging socially acceptable behaviour facilitated by technology (see page 39).

Others have also cited the expanding propensity of copyright and IPR regimes to be associated with restricting access to information and increasingly criminalising consumers (Neil Weinstock Netanel, Copyright’s Paradox, 2008, page 8). 

In addition to these issues, there is a growing concern that existing copyright and IPR regimes have the potential to increasingly act as a brake on economic competitiveness and growth, particularly in relation to exploiting innovative new business models, services and products fuelled by digital technologies and the Internet’s unique participatory culture. In November 2010 the UK Prime Minister, David Cameron, commissioned a Review of Intellectual Property and Growth, led by Professor Ian Hargreaves, because the government had diagnosed “the risk that the current intellectual property framework might not be sufficiently well designed to promote innovation and growth in the UK economy.” (Intellectual Property Review 2011, page 1).

In his final report, published in May 2011, Professor Hargreaves responded to what he called the Prime Minister’s “exam question” by identifying that “Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the Internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” (Ibid)

Of course part of the problem is that for any regulatory mechanism to be effective it needs be capable of adapting faster than the system of actors and behaviours that it seeks to regulate. Given the accelerated pace of social and commercial behavioural change driven by hyper-connected digital technologies (which themselves continue to evolve rapidly) it is hard to envisage any system capable of universal control or a legal regime which maps precisely onto lived experience (Michael J. Madison, University of Pittsburgh School of Law research paper, 2010, page 352)  

Yet if we conclude that the current design of copyright and IPR regimes are on a collision course with current social norms and evolving new business models in a digital age then the question emerges: what would be the key characteristics of a reformed copyright/IPR system? In February 2011, WIPO Director General, Francis Gurry called for an infrastructure which permitted simplified global licencing and warned the current complex copyright system risked losing public support if it could not be made more accessible and intelligible (see 2011 WIPO press release). 

Two months later, one of the central recommendations emerging from the 2011 Hargreaves review of intellectual property (see page 30) was for the UK Government to establish an automated online Digital Copyright Exchange which would ultimately reach the capacity to operate so that rights licensing could become a one-click process (in the same way that the administration of the Internet’s Domain Name System supports machine to machine communication to connect users to a website within a few seconds). This would involve government acting as a convenor for other stakeholders (including the creative industries) to establish a network of interoperable data bases to support a common platform for licensing transactions. Similarly, the Digital Agenda for Europe, one of the Flagship Initiatives of the European Union’s Europe 2020 Growth Strategy published in 2009 included a commitment to simplifying pan-European copyright clearance, management and cross-border licensing for online works (Digital Agenda Action 1). In both cases policymakers hope that if these approaches are successfully implemented then they would increase the transparency, contestability, and efficiency of digital content markets, reduce licensing transaction costs, facilitate dispute resolution and generate a greater range of quality affordable digital products and services for consumers (see page 31).

However, the shift to a more licensing culture will have broader implications. Whereas physical objects covered by copyright – books, CDs, journals – could be owned by consumers, leaving them free to loan them to friends, or sell them on second hand, digital information obeys no such rules. Digital objects are instead licensed and the licenses dictate the terms under which they can be used. This changes the concept of ownership – a click of the ‘buy’ button on iTunes simply means consumers are buying a license to use digital content, and committing themselves to behave in accordance with the dense and often impenetrable terms and conditions. The trend is for large information providers to enforce their licenses rigorously, with repercussions that can extend as far as revoking the right to access previously purchased digital materials (Guardian Article, 2012).

In addition to making questioning the notion of ownership in the digital age, greater use of licensing, as opposed to limitations and exceptions to copyright law, has implications for long-term access to culture, along with the way that cultural goods are created. For example, institutions such as libraries are presently prevented from buying eBooks from major publishers, or are only able to access them through restrictive licenses that pay little (or no) attention to the concept of public access to, and preservation of, culture. The shift from the creation of physical products in the cultural industries – CDs, DVDs, vinyl, books – to digital – MP3s, eBooks, streaming services - has created a marketplace where licensing terms are generating new revenue streams and new ways of allocating benefits to creators and rights holders. However, this new environment is as yet unable to answer the question of how to balance ease of access to digital cultural goods with public access to information, preservation of the cultural record, or how to give appropriate recompense to the people who create culture in the age of the Internet.

Whether the future holds an expansion of licensing regimes or a renewed focus on updating copyright limitations and exceptions for the digital age, there is a growing level of political consensus that current national/international copyright and IPR regimes are no longer fit for purpose in a hyper-connected information age, and a fresh balance between the protection of creative incentives and economic imperatives for access and innovation must be struck. Vice President of the European Commission Neelie Kroes (and Commissioner responsible for the implementation of the Digital Agenda) wrote in a February 2011 blog post entitled “Is Copyright Working?” that the current copyright system is not succeeding in its objectives, that the battle to enforce it was costing millions and that innovative ideas for new systems of recognition and reward were often suppressed by rigid pre-digital legislation. A review of the Digital Agenda published in December 2012 identified the need to “update EU’s Copyright Framework” as one of 7 key 2013-2014 priorities designed to “stimulate the conditions to create growth and jobs in Europe”.

Copyright necessarily creates a proprietary monopoly (eLaw Journal 2011, page 59) in order to ensure that creators can be incentivised through the promise of profiting from their endeavours – and yet a balance must be struck at the expense of this monopoly to support freedom of expression and access to information whilst mobilising the substantial social and economic benefits of new transparent digital markets for products and services. Those who are incentivised to create without considerations of profit will always do so irrespective of the copyright regime in operation, but open licensing approaches can help drive innovation by harnessing the participatory culture of the web, whilst affording those creators a legal basis (grounded in copyright law) for maintaining certain conditions for the use of their work as opposed to simply just releasing it into the public domain.