UK Consultation Response for March 21 2012

This constitutes my response to this consultation.

Your name Job Title Organisation Name

Andrew Norton (ktetch@ktetch.co.uk) Lead Researcher and owner Norton P2P Research Fact checking and research into P2P systems, copyright usage and infringement claims.

Organisation’s main products/services

http://ktetch.co.uk

1

Does the initial impact assessment capture the costs and benefits of creating a system enabling the use of individual orphan works alone, as distinct from the costs and benefits of introducing extended collective licensing? Please provide reasons and evidence about any under or over-estimates or any missing costs and benefits. The Government is particularly interested in the scale of holdings you suspect to be orphaned in any collections for which you are responsible. Would you expect your organisation to make use of this proposed system for the use of individual orphan works? How much of the archive is your organisation likely to undertake diligent searches for under this proposed system? What would you like to do with orphan works under a scheme to authorise use of individual orphan works?

In addition to research on topics, education or demonstrative material is occasionally produced to deal with related topics. These can, and have included visual works, video works, audio works, and written works. In many areas, the ability to make and produce has been severely curtailed by a lack of either Orphan works, or fair use/fair dealing provisions in UK law. I would like to be able to utilize them for creative works, and further the creative medium, an action currently denied to me, no matter how hard I try to stay within current UK law.
2 Please provide any estimates for the cost of storing and preserving works that you may not be able to use because they are/could be orphan works. Please explain how you arrived at these estimates.

No answer
3 Please describe any experiences you have of using orphan works (perhaps abroad). What worked well and what could be improved? What was the end result? What lessons are there for the UK?

In the US, I have been able to use some orphan works, via the Fair Use doctrine. This means I can use such works as long as my use falls within certain types, such as comment/critique or parody of said works. While this does not, in itself, protect me from a future lawsuit, it does give me an affirmative defence to an infringement claim or DMCA notice. The lesson for UK law is that flexible use of works is not only desirable, but required for a robust system, and is permitted in even the most lobby-heavy political system in the world, regarding copyright law.
4 What do you consider are the constraints on the UK authorising the use of UK orphan works outside the UK? How advantageous would it be for the UK to authorise the use of such works outside the UK?

The only constraints I see are ones generated by lobby groups and rights agencies to control the marketplace, and restrict freedom, enabling a gatekeeper system. It would be extremely advantageous to authorise such works internationally, as it would abide by the key recommendation of the Hargreaves report that laws about copyright/patent/trademark be based upon evidence, and not lobbying. A majority of the treaties listed as a concern were based around lobby-based “evidence” and claims. Such authorisation would be the first step in analysing the factual basis of such treaties, to verify them. To restrict the UK on the basis of treaties that have no factual support is not wise, prudent or forward looking.

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5

What do you consider are the constraints on the UK authorising the use of orphan works in the possession of an organisation/individual in the UK but appearing to originate from outside the UK: a) for use in the UK only b) for use outside the UK? How advantageous would it be for the UK to authorise the use of such works in the UK and elsewhere?

Were a copyright claim to be made against a UK based infringement, such a claim would have to be made through the UK courts (an exception being the perversion of laws in cases such as Richard o’Dwyer). Territorial laws regarding copyrights of works are varied from country to country, and some countries have, or have had differences depending on the origin of the work. The US famously excluded non-US works from copyright protection through the 19th Century, and Antigua was even told it could disregard some copyright protections for US works in a 2008 ruling by the WIPO. Thus such extraterritoriality has precedence. In addition, the US has attempted to enforce its own copyright laws against persons and companies operating outside the US borders, on companies and individuals that have not visited the US (Richard O’Dwyer) or that have been proscribed as legal under local law (RojaDirect in Spain). Thus the key fact seems to be that a country’s law on copyright can be applied internationally. The assent of the Home Office Minister in the O’Dwyer case adds the Governments support to this interpretation.
6 If the UK scheme to authorise the use of orphan works does not include provision for circumstances when copyright status is unclear, what proportion of works in your sector (please specify) do you estimate would remain unusable? Would you prefer the UK scheme to cover these works? Please give reasons for your answer.

The vast majority of the works that are in orphaned status that I would use are written. The written word has been around for centuries, and when a work is unidentified as to its author, it is then also unidentified as to the initial date of publication. This is less true for more technologically based mediums like audio and video recording, where the progress of technology has allowed for a rough data to be determined by the technological sophistication of the source material, and even photographic work can have its creation period narrowed down. Yet the written word has no technology-based source material, there is no easy way to tell if words are from Dickens or from a modern Dickensian attempt. Thus any orphan work program must either a) cover them, or b) make a determination that they are not covered by copyright. To effectively throw ones hands up and say ‘it’s too hard’ is NOT an option.
7 If the UK’s orphan works’ scheme only included published/broadcast work what proportion of orphan works do you estimate would remain unusable? If the scheme was limited to published/broadcast works how would you define these terms?

Only in the past few years has the ability to publish/broadcast been available to anyone beyond a select group. The vast majority of works are going to be unpublished. As such, I would not limit to “published” works. Moreover, privacy issues are a non-issue. If there is someone whose privacy is at risk, then there is an identifiable someone that can be used to try and identify the originator. And when the items in question have their copyright protection expire anyway, then it will be in the public domain to use at will.

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8

What would be the pros and cons of limiting the term of copyright in unpublished and in anonymous and in pseudonymous literary, dramatic and musical works to the life of the author plus 70 years or to 70 years from the date of creation, rather than to 2039 at the earliest?

There are few pro's in either side of the proposal. For pseudonymous works, a real name can be obtained, and thus an identity given. However, for the other classes, there should be at most a 5 year register of such works, available for owner claimant WITH PROOF. After those 5 years, it should fall into the public domain. The intent of copyright law, is to provide a creator with a limited monopoly time as an incentive for creation, while giving the public certain abilities to use the work in certain situations (through blanket licensing, for instance). When a work is deliberately made to be unidentifiable, thus preventing use through lack of required facts, then it should not be eligible for protection. If you deliberately reject “droite d’author” then you are rejecting the concept of copyright, which is based upon that.
9 In your view, what would be the effects of limiting an orphan works’ provision to non-commercial uses? How would this affect the Government’s agenda for economic growth?

It would depend on the penalties for violating that provision, along with who would be responsible for enforcing it. A large multinational will have no problem in defending and endlessly litigating a claim through civil courts, or accept a minute punishment. Punishments based on the estimated revenue from the commercial usage (as determined from an independent valuation) would be best, with a percentage-based fine/damages, say 150% of revenue, plus costs. The other issue is one that has been a contentious issue around Creative Commons licensed works, specifically those licenses with a ‘non-commercial’ component. Using it in a TV show or on a book cover is clearly commercial. However, what about on a website, or in a YouTube video, is that commercial? Probably not. What if there are adverts with the video, or on the website? Determining what constitutes commercial/noncommercial is difficult, especially at the lower end of the scale, and would need substantive, detailed and unambiguous clarification.
10 Please provide any evidence you have about the potential effects of introducing an orphan works provision on competition in particular markets. Which works are substitutable and which are not (depending on circumstances of use)?

Claims of competition from orphaned works harming markets are unfounded. There are already substantial databases of work in the public domain, and increasingly with non-restrictive licenses such as Creative Commons, and Copyleft. Thus any competitive “harm” that is alleged to exist from orphan works, would also exist from such licenses. In fact, since Creative Commons licensing is free, and the proposed Orphan works would not be (indeed, a search would require a significant investiture in time alone) the potential worry has little-to-no basis in fact and should not be considered as a factor. In addition, competition is a KEY part of a healthy ecosystem, and even considering reducing competition in order to favour certain groups – or more accurately, members of certain lobbying groups – is something that should be avoided at ALL costs.
11 Who should authorise use of orphan works and why? What costs would be involved and how should they be funded?

At no point should “collecting societies” be used. There are significant problems with the actions and activities of collecting societies around the world. They are always quick to charge (including for material they should not), and slow to pay out. In fact, an independent audit of collecting societies should be considered.

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As for who and why, it needs to be a government body, perhaps a department of the IPO Office. Private groups have long demonstrated that in such fields they tend to exaggerate their authority, and attempt to milk people of funds. The costs involved would be the setting up of a basic database structure, and of a public-facing search index. The majority of data for populating it will be provided with the orphan works ‘claim’, so it’s a question of data transfer. At the same time, there is the time in processing a claim of ownership. Finally, there’s the cost of contesting a claim. Funding can potentially come from all three, with fees for being granted usage rights for an orphan work, and fees for claiming ownership. In addition, an open contention process allows for entry (or continuation) on the database to be challenged by everyone, overseen by someone with the power to assess a ‘fine’ if an orphan works application was found to be misleading, incorrect, or fraudulent. This could make the bulk of the funding.
12 In your view what should constitute a diligent search? Should there be mandatory elements, and if so what and why?

A diligent search should attempt to follow up any basic information given in the work in question. This will at least provide additional information about the work in many cases. There are so many variables, and the applicability of any of them to a particular work is not certain. Certainly a log of efforts much be kept with the view to random elements being tested during the application process for verifiability. The quality of the search is more of a judgement call, by those accepting the applicatio.
13 Do you see merit in the authorising body offering a service to conduct diligent searches? Why/why not?

There is merit to this, in that a ‘qualifying search’ can be done by those that do not have the time or manpower to do it themselves. It would, however, be potentially costly, with the extra cost being used to fund the system.
14 Are there circumstances in which you think that a diligent search could be dispensed with for the licensing of individual orphan works, such as by publishing an awaiting claim list on a central, public database?

A diligent search should always be performed. A list method is reminiscent of the start of Douglas Adam’s Hitchhikers Guide to the Galaxy books, where the main character’s house was being knocked down, and he should have known about it and protested at the appropriate time, because the notice was ‘on display in the local planning office’. While a list should certainly be maintained, it should not be relied upon, because it has the requirement that people actively seek it out. Without cause to do so, they will not, just as Arthur Dent felt no need to go to the planning office to check if his house was going to be knocked down, “Ah! And how many members of the public are in the habit of casually dropping around the local planning office of an evening? It’s not exactly a noted social venue is it? And even if you had popped in on the off chance that some raving bureaucrat wanted to knock your house down, the plans weren’t immediately obvious to the eye were they?” (Hitchhikers Guide to the Galaxy (radio play), Fit the First, © 1978 Douglas Adams This is the same sort of scenario.
15 Once a work is on an orphan works registry, following a diligent search, to what extent can that search be relied upon for further uses? Would this vary according to the type of work, the type of use etc? If so, why?

Unless new information has been unearthed, then there is no reason to assume the status has changed. Perhaps a Wikipedia-esque system could even be employed, with a ‘bragging rights’ table of rights identifiers, to help provide extra information later, which could change the status, and perhaps bring it into question, but once a

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work has been classified as ‘Orphan’, further searches shouldn’t be made (although perhaps a higher usage fee, since the search work has already been done). And of course, after 5 years on the registry, the copyright should be declared null and void, and the work released to the public domain.
16 Are there circumstances in which market rate remuneration would not be appropriate? If so, why?

Attempting to determine ‘market rate’ is treacherous at best, especially since market rates are often heavily influenced by a handful of large players in the various formats. In all circumstances, its payment for something that may not have an owner any more, or at least not one with a valid claim (term may have expired) meaning an unnecessary cost, and a market distortion. Escrow accounts are also expensive to run, as the CCB has found, meaning the cost of running the system is increased, which is not a good plan.
17 How should the authorising body determine what a market rate is for any particular work and use (if an upfront payment system were to be introduced)?

An upfront system should not be used.
18 Do you favour an upfront payment system with an escrow account or a delayed payment system if and when a revenant copyright holder appears? Why?

A delayed payment system should be used, with a payment cap determined at the time of Orphan status being granted. This allows an Orphan user to know the maximum he can pay, cutting down on the risk of contentious fights and excessive costs (especially when a large organisation with a well-funded legal department makes a claim on a work used by a smaller organisation) Said a maximum payment would decrease by 5-10% per year, until after 5 years the orphan work is deemed to be in the public domain. This is because as time goes by, the greater usage of the work would mean a larger payment, so it would otherwise be in a rights holders interest to wait as long as possible to have the maximum leverage in a dispute. This sliding scale approach incentivises rapid claims of ownership, minimising the content on the orphan works register.
19 What are your views about attribution in relation to use of orphan works?

Attribution should always be given. Where the applicable attributor is not known (rather than known, and otherwise uncontactable) an OR number can be given as attribution, which would be a references to the Orphan Register. There, attribution can be given at a later time, along with a summary of the status. This also allows for speedier processing of rights claims. In fact, displaying the OR number perhaps should be a requirement, as attribution that it was authorised under the Orphan Register, even when there is an attributable ‘identity’ (pseudonymic or otherwise)
20 What are your views about protecting the owners of moral rights in orphan works from derogatory treatment?

There should be no practical difference from any other work. The orphan status should not affect this, and so existing laws and regulations would already cover this.

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21

What are your views about what a user of orphan works can do with that work in terms of duration of the authorisation?

An initial authorisation should last for 5 years. The answer is simple, after 5 years, the orphaned work falls into the public domain, as bona vacantia.
22 What aspects of the current collective licensing system work well for users and rights holders and what are the areas for improvement? Please give reasons for your answers.

Almost no aspects work well for users or rights holders. The standard operating system for collecting societies is to demand all, demand often. There have been many cases in the recent past where agencies have gone above and beyond their mandate, and targeted people in shakedowns. In the past few years, there have been reports of UK Collection societies calling up small businesses, and threatening them if they hear music in the background (http://www.techdirt.com/articles/20090202/0128383597.shtml), carollers, charities (http://torrentfreak.com/charity-forced-to-pay-copyright-police-so-kids-can-sing-071209/) have been targeted for fees, as have schools (http://torrentfreak.com/uk-copyright-cops-target-kids-schools-community-centers081015/). Even people who sing to themselves have been targeted because they’re doing so at work (http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm) and let’s not forget their targeting of employers like Kwik Fit (http://news.bbc.co.uk/2/hi/uk_news/scotland/edinburgh_and_east/7029892.stm) and even the police (http://torrentfreak.com/police-chief-faces-high-court-anti-piracy-action-120608/). Incidentally, The EU Court of Justice just ruled that in cases like these, there are no fees to pay (http://euobserver.com/871/115621#.T2cCyGfYteQ.twitter) Nor are abuses confined to UK collection societies. Spanish group SGAE has been fined in the past for gatecrashing private events in the hunt for licensing fees (http://elpais.com/diario/2008/12/08/sociedad/1228690805_850215.html Spanish). Belgian group SABAM wanted truck drivers to pay licenses because of the radios in their cabs (http://torrentfreak.com/copyrightpolice-want-truck-drivers-to-have-licensed-cab-music-110327/) while they have also been caught out by one TV show claiming royalties for music that they not only don’t represent, but which never existed. (http://torrentfreak.com/music-royalty-society-collects-money-for-fake-artists-bathroom-equipment-and-food110308/) Of course, the prize for showing how badly Collection Societies work has to go to GEMA, a Germany agency. Sony’s CEO of international business, Edgar Berger gave an interview recently where he noted that GEMA’s greed was costing them millions in YouTube licensing alone. Sony artists are blocked in Germany, and the reason, according to Berger is “It’s not because of us. You must direct this question to the German collecting agency GEMA; they licensed the copyright very restrictively.” (http://www.welt.de/wirtschaft/webwelt/article13881492/Das-Internet-muss-frei-sein-nicht-umsonst.html) GEMA has even blocked noted copyright scholar Lawrence Lessig’s recent TEDtalks video “How the law is strangling creativity” in Germany – how’s that for irony? (https://twitter.com/#!/lessig/status/180351028854661121) In short, what aspects work well? None. What needs to be done? First of all, an audit needs doing, to ensure compliance with the law. Then, shut them down. At the very least start a new, independent one with significant oversight, because this one just DOES NOT WORK.

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23

In the Impact Assessment which accompanies this consultation, it has been estimated that the efficiencies generated by ECL could reduce administrative costs within collecting societies by 2-5%. What level of cost savings do you think might be generated by the efficiency gains from ECL? What do you think the cost savings might be for businesses seeking to negotiate licences for content in comparison to the current system?

No answer
24 Should the savings be applied elsewhere e.g. to reduce the cost of a licence? Please provide reasons and evidence for your answers.

No answer
25 The Government assumes in the Impact Assessment for these proposals that the cost of a licence will remain the same if a collecting society operates in extended mode. Do you think that increased repertoire could or should lead to an increase in the price of the licence? Please provide reasons for your answers.

No answer
26 If you are a collecting society, can you say what proportion of rights holders you currently represent in your sector?

No answer
27 Would your collecting society consider operating in extended licensing mode, and in which circumstances? If it is something you’d consider, what benefits do you think it would offer to your members and to your licensees?

No answer
28 If you do not intend to operate in extended licensing mode, can you say why?

No answer
29 Who else do you think might be affected by the introduction of extended collective licensing? What would the impact be on those parties? Please provide reasons and evidence to support your arguments.

No answer
30 What criteria do you think should be used to demonstrate that a collecting society is “representative”? Please provide reasons for your answer.

I don’t think that now, a collecting society CAN be representative. Thanks to technology, now anyone can be a creator at any time. Thus unless the majority of the population is signed up to one, they are not representative. Instead, they are representative of only a small section of the industry, usually the high-end professionals, and those with major backing or experience. It’s a bullying experience for those that do not want to be part of their way of business, or who want to start out but have a contrary idea.

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Granting any new powers to existing collecting societies should not be done. Instead a reduction of powers and abilities should be considered, as should audits to assess the business methods of said societies.
31 Do you think that it is necessary for a collecting society to obtain the consent of its members to apply for an ECL authorisation? What should qualify as consent - for example, would the collecting society need to show that a simple majority of its members have agreed to the application being made?

As such societies now only constitute a minority subset of creators, the assent of any percentage of that subset means very little.
32 Apart from securing the consent of its members and showing that it is representative, are there other criteria that you think a collecting society should meet before it can approach the Government for an ECL authorisation? Please give reasons for your answer.

I think a collecting society should show that its records are all accurate, that it has performed ethically, in full compliance with the law, and with the interests of the public as a whole, AND passed an audit before it should be allowed to even continue to act as a collection society.
33 When, if ever, would a collecting society have reasonable grounds to treat members and non-member rights holders differently? Please give reasons and provide evidence to support your response.

They always have a reasonable ground to treat members and non-members differently. They should not collect for non-members work, and should not intimidate the public into licenses ‘just in case’ some of their members work is used. However, Collection societies seem to treat non-members as members for the purposes of collecting money.
34 Do you have any specific concerns about any additional powers that could accrue to a collecting society under an ECL scheme? If so, please say what these are and what checks and balances you think are necessary to counter them. Please also give reasons and evidence for your concerns.

I have significant concerns over the current powers such groups have. As stated before, they need a comprehensive audit and restructure, before they can even gain peoples trust or respect. At present, many consider them to be in the same category as low-class debt-collectors, the same kind you see on BBC Rogue Traders or Watchdog, and for the same reasons; underhand tactics, demanding money unnecessarily, and attempting intimidation to bring in funds.
35 Are there any other conditions you think a collecting society should commit to adhering to or other factors which the Government should be required to consider, before an ECL authorisation could be granted? Please say what these additional conditions would help achieve.

Aside from as noted above, they should also have publicly accessible lists of work they represent, so that if people wish to avoid the work they represent, they can do so. Also a much clearer definition of what the society is for and what license is needed for what activity. This will help stop the kind of confusion and intimidation that the murky nature of the current situation has generated.
36 What are the best ways of ensuring that non-member rights holders are made aware of the introduction of an ECL scheme and that as many as possible have the opportunity to opt out, should they wish to?

No answer

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37

What type of collecting society should be required to advertise in national media? For example, should it need to be a certain size, have a certain number of members, or collect a certain amount of money?

No answer
38 What would you suggest are the least onerous ways for a rights holder to opt out of a proposed extended licensing scheme?

No answer
39 Should a collecting society be required to show that it has taken account of all opt out notifications? If so, how should it do so? Please provide reasons for your answers.

No answer
40 Are there any groups of rights-holders who are at a higher risk of not receiving information about the introduction of an ECL scheme, or for whom the opt-out process may be more difficult? What steps could be taken to alleviate these risks?

No answer
41 What measures should a collecting society take to find a non-member or missing rights owner after the distribution notice fails to bring them forward?

The same measures that any other work should be subject to, a fully documented diligent search.
42 How long should a collecting society allow for a non-member rights holder to come forward?

As with all orphan works, 5 years. After that time, the work is in the public domain.
43 Aside from retention by the collecting society or redistribution to other rights holders in the sector, in what other ways might unclaimed funds be used? Please state why you think so.

Neither of these options should be under consideration at all. Both cases lead to the society performing a lessthan-optimal search for the rights owners, in an attempt to enrich either themselves, or their members. Alternative methods must be found, with the worst acceptable solution being that the money is given to the IPO. Either to help administer the orphan works database, OR to act as a supplementary bonus or windfall to the office’s budget, to assist with reducing the patent backlog, for instance.
44 What do collecting societies do well under the current system? Who benefits from the way they operate? Please explain your response and provide evidence for it.

As noted in the answer to 22 above, what they do best is intimidation, lies, and deception. Those that benefit from their methods of operation are the groups/organisations that get the major shares of the payouts and the company itself. Evidence is listed above in 22.

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45

What are the areas for improvement in the way that collecting societies operate at present? Who would benefit from these improvements, and what current costs (if any) could be avoided? Please give reasons and provide evidence for your response.

A non-profit organisation would remove the profit-driven element of the company’s business. When rights, especially monopolistic rights (as noted in the consultation document) are administered by a private, for profit company, the profit motive drives the rest of the business. In addition, substantial transparency of operation, including annual (or perhaps quarterly) figures released, showing licenses paid for, and fees paid out and to whom. Without being able to track the money, there is no way to hold such a group accountable, and to know that it is discharging its monopolistic right in an appropriate manner.
46 Do you agree with the analysis contained in the impact assessment of the costs and benefits for collecting societies and their users? Are there additional costs and benefits which have not been included, or which you are able to quantify? Please provide reasons and evidence for your response.

No answer
47 Who else do you think would be affected by a requirement for collecting societies to adhere to codes of conduct? What would the impact be on them? Please provide reasons and evidence for your response.

No answer
48 Is one year a sufficient period of time for collecting societies to put in place a code of conduct? Please provide reasons for why you agree or disagree? Please also provide evidence to show what a workable timeline would be.

In many cases, such societies require a ‘pay up now’ response. To expect to give companies with such bad reputations excessive time to leisurely change their practices into one that is acceptable to society is hardly fair, especially when these same companies demand instant compliance with their wishes.
49 What other benefits or rewards could accrue to a collecting society for putting in place a voluntary code? Please provide evidence for your answer.

Such societies are seen by many artists as unprincipled, only looking to rake in as much money as possible (see Sony & GEMA earlier). A society that starts to act in a responsible manner, would start engendering public trust and not be met with suspicion and disgust when out representing its members.
50 In your view, does it make a difference whether there is a single code, one joint code, or several joint codes? Please give reasons for your answer.

Are there multiple ways to ‘behave properly’? They are all in the same business, albeit in different media fields, thus one single one would make it easier, while also avoiding the potential problem of each one tailoring their own ones over time to re-allow the same behaviours.
51 Are there any other areas that you think should be covered in the minimum standards, or areas which you think should be excluded? Please give reasons for your response, including evidence of alternative means of securing protection in relation to any areas you propose should be excluded from the minimum standard.

No answer

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52

Are there any additional undertakings that a collecting society should give with regard to its members and the manner in which it represents them? Should any of the proposed minimum standards about members be excluded? Please provide reasons and evidence to support your response.

No answer
53 Are there any additional undertakings that a collecting society should give with regard to its licensees, or should any of the proposed minimum standards be excluded? Please give reasons and evidence for your response, included why you consider any standards which you propose should be excluded to be unnecessary.

No answer
54 Are there any additional expectations for licensees that should be set out by a collecting society in its code, or should any of those listed be excluded? Please give reasons why.

No answer
55 Are there any additional measures that a collecting society should put in place to ensure proper control of the conduct of its employees, agents, and representatives? Should any of the proposed standards be excluded? Please say what these are and provide evidence to support your response.

Additional measures might be to include criminal sanctions for abusive conduct. Internal investigations only go so far and tend to be kept hidden, so as to avoid embarrassment to the organisation.
56 Are there any additional provisions that you believe would enhance the transparency of collecting societies? Should any of the proposed provisions be excluded? Please give reasons and evidence to support your response.

A full publication of payments and accounts. Inflations of license costs (e.g. http://youtubeglobal.blogspot.com/2009/03/youtube-uk-and-performing-rights.html) may only result in a slight increase in payments to artists. This is especially true when the monetary amounts for large licenses like this are kept secret. For instance, a 50% increase in the YouTube license, may only garner a 10% increase in royalty pay-outs, but without figures on both sides being disclosed, this profit-skimming would go unknown. While there’s no evidence that this goes on, it’s certainly a concern that needs to be addressed before it becomes a reality.
57 Are there any other criteria that a collecting society should report against? Should any of the proposed criteria be excluded? Please give full reasons and evidence for your answer, describing what impact it would have and on whom

Addressed in 56 above.
58 Are these criteria sufficient for the creation of a complaints procedure that is regarded as fair and reasonable by the members and users of collecting societies? Should any proposed criteria be excluded? Please provide reasons and evidence to support your response.

No. Internal reviews of disciplinary matters, especially when we’re talking about private companies given monopoly powers, including automatic powers to grant licenses over other people’s property without first getting consent (the automatic opt-in of representation) would not be sufficient. There is extensive literature about such procedures being ineffective, even for critical issues, like teachers, or police officers.

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59

Please indicate whether you think a joint ombudsman or individual ombudsmen would work better. Please say why you would prefer one over the other.

A single one would be better. It gives more consistency, and means there’s only one office to monitor.
60 Is the ombudsman the right person to review the codes of conduct? Please give reasons for your answer, and propose alternatives if you think the ombudsman is not best placed to be the code reviewer.

I do not. I believe that a public comment and response headed by the ombudsman is the appropriate way. This is because we, as creators, are automatically deemed to be represented by them when we publish, unless we specifically opt-out. Thus we should have some say in the code that will be our primary method of recourse, and have our feedback taken under consideration.
61 What do you think about the intervals for review? Are they too frequent or too far apart? Please provide reasons for your answers.

They are too far apart. A lot can happen in 3 years, or even two. At the very least, reviews should be annual.
62 What initiatives should the Government bring forward to provide recognition of high performance against voluntary codes of conduct? Please give reasons and evidence for your response.

High Performance should be the expected norm in all fields. If mediocrity is expected, then that is the result, and perhaps the current root of many problems in the UK. Rather than praise for performing as they should, they should be punished for a lack of ‘High performance”. Scraping by on what might be deemed ‘acceptable performance’ is hardly acceptable to those of us who have been forced to deal with them. Therefore, the initiative for High Performance should be the ability to continue. A reward for doing what should be expected of them is hardly being responsible.
63 What do you consider the process and threshold for non-compliance should be? For example, should Government test compliance on a regular basis (say by following Ombudsman’s reports) or on an ad-hoc basis? What evidence would be appropriate to demonstrate non-compliance?

As we are (currently) allowing a private, for profit company to have monopoly rights, including those granted automatically by people publishing, only the strictest standards will do. Attempting to define levels of evidence for non-compliance at this stage is impossible, as evidence would vary based on the infraction, and on the level of corroborative proof. Compliance should be tested regularly, AND on a random basis, much as health inspectors conduct spot checks as well as an annual evaluation.
64 What, in your view, are suitable penalties for non-compliance with a statutory code of practice? For example, are financial penalties appropriate, and, if so, what order of magnitude would be suitable? Please give reasons and provide evidence for your answer.

For significant or repeated infringements, then disbandment and criminal charges should be considered. For less flagrant violations, financial penalties would be appropriate, but using the “day fine” system. Flat or statutory fees have problems in that they’re a one-size-fits-all solution where there are extremes of size. A day fine system is calculated to give an estimated daily value which is then multiplied by the number of ‘days fined’. Such systems are in common use in many European countries for criminal law enforcement. It also means that a 30day fine would impact companies of different sizes (but equal profitability) in similar ways. It allows for small

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collecting societies to face the same penalties as the large ones, without making it too small for one to notice while too big for another to pay.
65 Do you agree that the imposition of a statutory code should be subject to review? How long should such a code be in place before it is reviewed? Please give reasons for your response.

That would depend on the circumstances of the imposition. However, the saying ‘fool me once, shame on you, fool me twice, shame on me’ should be heeded. They are already getting away with significant abuses, and if, after a code, they continue, they should not get a THIRD chance to abuse their position.
66 If you are a collecting society which may qualify as a micro-business, would you be likely to introduce a voluntary code? If you are a user of collecting societies, what do you believe the Government should do to encourage good practice in any collecting societies which are exempt from the power to introduce a statutory code? Please give reasons for your response.

Not Applicable 67 Do you agree that a private copying exception should not permit copying of content that the copier does not own?

No. There has been zero demonstration of harm from non-commercial private copying. In many cases now, what people believe to be content they ‘own’ is merely content they have ‘licensed’, except in certain situations, when it is then claimed to be owned.
68 Should the private copying exception allow copying of legally-owned content for use within a domestic circle, such as a family or household? What would be the costs and benefits of such an exception?

Without question. The costs of such an exception are zero. It already goes on. The benefits are that it stops attempting to criminalise and victimise people who are only doing what is morally acceptable. Sharing is an integrated part of human civilisation.
69 Should a private copying exception be limited so that it only allows copying of legally-owned content for personal use? Would an exception limited in this way cause minimal harm to copyright owners, or would further restrictions be required? What would be the costs and benefits of such an exception?

To date, no harm has yet to be quantified with evidence at all. Despite over 10 years of studies, papers, reports, etc. from various copyright lobby groups, there has yet to be a single one that agrees with another, or which contains independently sourced and verified evidence or data. All claims of loss are based on worst case estimates, taking a negative-only side view and exaggerating. The potential costs are limited to the money spent lobbying, and to the legal services industry in defending against speculative invoicing lawsuits, as exemplified by Andrew Crossley and ACS:law.

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70

Should a private copying exception be explicitly limited so that it only applies when harm caused by copying is minimal? Is this sufficient limitation by itself, or should it be applied in combination with other measures? What are the costs and benefits of this option?

Since all the data available shows that the harm is minimal at worst, (and more likely to be non-existent) such a limitation would be worthless as far as the facts go. However it will allow lobby groups to continue to claim, based on spurious claims 9http://www.gao.gov/products/GAO-10-423), damage and loss, and use that to persecute. Again, I will reiterate. There has not been one single fully evidenced study that has established any sort of harm exists. Indeed, some studies and papers (which HAVE released their data e.g. http://www.rufuspollock.org/economics/papers/optimal_copyright.pdf) have concluded that the excessive protection of copyright is the real source of harm.
71 Should the current mechanism allowing beneficiaries of exceptions to access works protected by technological measures be extended to cover a private copying exception? What would be the costs and benefits of doing this?

Technological protection mechanisms, or Digital Rights Management, are an attempt to try and force restrictions on people through code or other means, irrespective of the legality of the action. Some DRM is used to protect actions that are otherwise illegal, but they have one fatal flaw. They don’t work. Content Scrambling System (CSS) on DVDs is designed to prevent DVD copying. It doesn’t work. It was ‘broken’ almost immediately. It is trivial to bypass to make a copy if you desire. However, it’s even easier to obtain a copy that had already had it removed. The ironic thing is that without the DRM, the product is of greater value to the consumer. It means those that pay for it, can’t easily use it elsewhere, will have to sit through unskippable adverts (including anti-piracy warnings) all of which the people who have bypassed it, and downloaded a copy do not have to deal with. Far from being a protection mechanism, it’s actually a cause of copyright infringement. The Digital Economy Act consultation contained a list of the top10 pirated games, sourced to TorrentFreak. The one thing they all had in common was that they were amongst the most heavily protected with DRM. Technological measures also bring us back to the own/license debate. If you buy a DVD, you have bought it, except it’s not yours to do as you wish because of DRM. This is therefore a license. However, if the DVD is damaged, it then reverts to a ‘buy’ because you cannot transfer the license to another disc, or copy. DRM exists to give the consumer all the negative aspects of a license, with all the negative aspects of a purchase, combined into one. Therefore, absolutely, there should be no restrictions on bypassing any kind of so-called ‘protection measure’. There are no costs, because it would just be recognising and accepting an already commonplace activity.
72 Should the preservation exception be extended: - to include more types of work? - to allow multiple copies to be made? - to apply to more types of cultural organisations, such as museums? How might this be done, and what would be the costs and benefits of doing it?

In short, yes, yes and yes. Again, there would be no real costs, but the benefits would mean we wouldn’t lose pieces of heritage. Just this month, there has been a call put out for people who have scenes from Hammer films

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that have been lost, there is the continued search for the missing Dr Who episodes. These are the costs of NOT doing it, the loss of historical and cultural information.
73 Is there a case for simplifying the designation process which is part of Section 75? How might this be done and what would be the costs and benefits of doing it?

Without a doubt. Again, there are few costs, if any. The benefits are incalculable. Disaster can strike at any time, and the more copies there are, the more secure things are. As for how, a simple application process is all that’s needed.
74 Should any other changes be made to the current exceptions relating to libraries and archives, and what would be their costs and benefits?

No answer
75 Would extending the copyright exception for research and private study to include sound recordings, film and broadcasts achieve the aims described above? Can you provide evidence of its costs and benefits?

At present, the costs would be the potential erosion of a very small market. Charges are extremely high (sometimes £200 for a single episode on a home video tape) so the cost dissuades people. The benefits are an increase to the knowledge economy, in this, the information age.
76 Should the copyright exception for research and private study permit educational establishments, libraries, archives or museums to make works available for research or private study on their premises by electronic means? What would be the costs and benefits of doing this?

Yes. Benefits are, again, education, knowledge and flexibility. The costs are, again, minuscule if they exist at all.
77 Would an exception for text and data mining that is limited to non-commercial research be capable of delivering the intended benefits? Can you provide evidence of the costs and benefits of this measure? Are there any alternative solutions that could support the growth of text and data mining technologies and access to them?

No; if the stated aim is economic growth, then limiting it to non-commercial research would go against that aim. The alternative solution is to not limit it to non-commercial research.
78 Do you agree that a parody exception could create new opportunities for economic growth?

Without a doubt. Opening up a new field by removing the high barrier to entry means more activity. More activity means more economic activity, which means economic growth.
79 What is the value of the market for parody works in the UK and globally?

Incalculable

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80

How might a parody exception impact on creators of original works and creators of parodies? What would be the costs and benefits of such an exception?

Many other countries have such an exception. It has not hurt things and is accepted. If there is zero issue with other countries and their permitting it, why would there be any here? The benefit is, again, opening up a new area of creativity that had a high barrier to entry. 81 When introducing an exception for parody, caricature and pastiche, will it be necessary to define these terms? If so, how should this be done?

What constitutes parody is hard to define exactly, but in the immortal words “I’ll know it when I see it”. Thus it is not necessary 82 How should an exception for parody, caricature and pastiche be framed in order to mitigate some of the potential costs described above?

While there are potential costs, that is life. If it significantly harms you, then there are already laws existing to deal with things. 83 Would making this a “fair dealing” exception sufficiently minimise negative impacts to copyright owners, or would more specific measures need to be taken?

Copyright is a monopoly right granted in exchange for certain privileges. Many would argue that recent copyright laws have had a much greater cost than benefit, because they focused on “impact to copyright owners”. The key factor to focus on is not the copyright owners, but that copyright is a deal between a rights holder and the public. Any potential negative impact has been more than outweighed by the negative impacts to the public (and thus a positive impact to the rights owners referenced) in the past decade or two. In rebalancing the scale, sometimes they have to take some negative impacts. 84 Are you able to provide evidence of the costs and benefits of such an exception?

No answer 85 How should the Government extend the education exceptions to cover more types of work? Can you provide evidence of the costs and benefits of doing this?

The extension should be complete. The intent of copyright was to prevent commercial exploitation by outsiders. It was not intended to be a way of locking the sum totality of modern human effort away unless you have money to burn. Education should be a primary issue, and to do that you cannot restrict information. When your education is hamstrung by the desires of wealthy corporations and their lobby groups, you have a major educational crisis on your hands.

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86

Would provision of “fair dealing” exceptions for reprographic copying by educational establishments provide the greater flexibility that is intended? Can you provide evidence of the costs and benefits of such an exception?

A blanket acceptance of copying would be best, as it would fit within the bounds of non-commercial copying that is at the root of human civilization 87 What is the best way to allow the transmission of copyright works used in teaching to distance learners? What types of work should be covered under such an exception? Should on-demand as well as traditional broadcasts be covered? What would be the costs and benefits of such an exception?

Why would you hamstring education, because of some right granted in order to encourage creation? Works under educational study would lead to more creation. Thus it fulfils the intent of copyright. Many of these questions seem to stem from an assumption that the intent of copyright is to profit. That is not the intent, and doesn’t fit with how copyright is implemented now, and has been in the past. Thus we need to focus properly on education, and allow it full ability to do the job of educating, without being hindered by the commercial wishes of corporations. The function of education is knowledge; you cannot hobble it because of some commercial interest by a small faction and have it still remain education. 88 Should these exceptions be amended so that more types of educational body can benefit from them? How should an “educational establishment” be defined? Can you provide evidence of the costs and benefits of doing this?

Does it provide an accredited educational/learning experience, with a quantifiable goal and qualifications? Then it’s an educational establishment. 89 Is there a case for removing or restricting the licensing schemes that currently apply to the educational exceptions for recording broadcasts and reprographic copying? Can you provide evidence of the costs and benefits of doing this, in particular financial implications and impacts on educational provision and incentives to creators?

Again, all such restrictions do is cripple the quality of education available. They should be removed.

90

How should the current disability exceptions be amended so that more people are able to benefit from them? Can you provide evidence of the costs and benefits of doing this?

No answer
91 How should the disability exceptions be expanded so that they apply to more types of work? Is there a case for treating certain works differently to others? What would be the costs and benefits of amending the exceptions in this way?

No answer

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92

What are the costs and benefits of the current licensing arrangements for the disability exceptions, and is there a case for amending or removing them?

No answer
93 How should this exception be modified in order to simplify its operation?

No answer
94 Should the current exception for criticism and review be amended so that it covers more uses of quotations? If so, should it be extended to cover any quotation, or only cover specific categories of use? Can you provide evidence of the costs or benefits of amending this exception?

It should be expanded, and expanded to cover any quotation. Again, there is little cost, beyond anecdotal claim to retain control. 95 Is there a need to amend or clarify the exception for reporting current events? Could this be done as part of a quotation exception, or would a separate measure be needed? What would be the costs and benefits of doing this?

It should be done as part of the quotation exception. 96 Is there a need to amend the existing provisions relating to speeches and lectures, and what would be the costs and benefits of doing so? Should these provisions be combined within a quotations exception?

In all such questions the answer should be ‘what do we gain’ against ‘what do we lose’. Again, we gain intellectual freedoms, and we lose artificial barriers erected to control, censor and profit. There is no question which is the right answer. 97 Would there be additional benefits if all three types of exception examined by this section were combined?

It would make the text easier to read, and simpler to understand. That’s a major issue with UK law at present. 98 How should the current exceptions for use by public bodies be amended to support greater transparency? How could such exceptions be limited to ensure that incentives to copyright owners are not undermined? Can you provide evidence of costs or benefits of doing this?

In a battle between government transparency and private control of information, there is no contest; government transparency should win all the time. Copyright is, as noted before, a right granted by the government IN EXCHANGE for certain things. That it is seen as somehow a fundamental right to control and dictate any and all usage for a century or more is a perversion of the intent, spread by lobby groups. If you talk to a majority of creators, they will tell you that it is not copyright that motivates and incentivizes them. Having working in TV, the record industry, and even published a book, what motivated me was not having the copyright; it was the challenge of creating. To worry about “incentives to copyright owners” is to ignore the vast

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majority, to focus on the noisy rich super-minority. To worry about changing laws to protect the business practices of a few companies, against the benefit of the nation as a whole is not smart. 99 Should a new exception for time-shifting of broadcasts by social institutions be introduced? What would be the costs and benefits of doing this?

No answer
100 Should a new exception for use during religious celebrations or official celebrations organised by public authorities be introduced? What would be the costs and benefits of doing this?

No answer
101 Should our current exceptions be expanded to cover use for public exhibition or sale of artistic works on the internet? What would be the costs and benefits of doing this?

No answer
102 Should our current exceptions for the demonstration and repair of equipment be expanded? What would be the costs and benefits of doing this?

No answer
103 What are the advantages and disadvantages of allowing copyright exceptions to be overridden by contracts? Can you provide evidence of the costs or benefits of introducing a contract-override clause of the type described above?

Contracts always favour the stronger and wealthier side. Thus in many of these negotiations, the major media companies will use their greater influence to override law. There are examples in the US with many lawsuits ongoing as artists try to recapture rights from record companies (http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-songrights.html?pagewanted=all) while companies like EMI have tried to use contract law details to derail them (http://www.techdirt.com/articles/20120302/03503317944/emi-sneakily-trying-to-pretend-many-its-artists-cantreclaim-their-copyrights.shtml)

104 Are there specific and or general areas of practical uncertainty in relation to copyright which you think would benefit from clarification from the IPO? What has been the consequence to you or your organisation of this lack of clarity?
Certainly. Most people are unaware that format shifting is currently prohibited, and they’re uncertain about the legality of backup copies. Indeed, to the general public (having given Q+A sessions on copyright law) copyright law is incredibly complex and impenetrable. A top down reform of copyright law would be the ideal solution, making it clear and easy to understand, although it’s understood that this is not possible. My organization, having access to numerous legal scholars and copyright lawyers around the world, has not been significantly adversely affected. However, part of that comes from the fact that there are offices in the US as well as the UK, and frequently, use of US fair use law, via the US Office, is used when in doubt about UK laws. Not everyone is this lucky, however.

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105

Who do you think would benefit from this sort of clarification? Should it be reserved for SMEs as the group likely to produce the greatest benefit in economic growth terms?

There would be a widespread benefit to everyone. The most significant beneficiaries in terms of numbers would be individuals and small businesses, yes, but even large businesses will benefit from clarification. 106 Have you experienced a copyright dispute over the last 5 years? If so, did you consult lawyers and how much did this cost?

Yes. One of the projects we work on is the Muon1 Distributed Computing project, part of the Neutrino Factory based at the UK Government’s Rutherford Appleton Labs. We produce promotional videos, showing the results of past stages of the project. At the start of December 2011, one of the videos was flagged for copyright enforcement on YouTube, specifically the audio. The audio is always Creative Commons licensed music, so it was strange, and came from a Performing Rights society. I fought the claim personally, since I am knowledgeable in this field. However, another person would have had to at least consult a lawyer. The information is here http://www.ktetch.co.uk/2011/12/real-copyright-theft.html Earlier this year, I also distributed the MegaSong, released by MegaUpload. I had permission to do so from the copyright holder, and yet I got sent an infringement notice via YouTube from the Universal Music Group (UMG) who used their dominant position to send false takedown notices. I counter-noticed, and the maintained their claim of infringement, which they later acknowledged to be fraudulent, but permitted under a contractual agreement with Google Inc. I did not handle any legal issues myself there, but MegaUpload did file suit concerning the takedowns, which it has dropped and looked to be taking on Google (http://www.hollywoodreporter.com/thr-esq/megaupload-universal-music-group-lawsuit-dropped-283767), before the FBI led New Zealand raid. Finally, at present, I am providing technical knowledge and assistance to some lawyers who are fighting cases of speculative invoicing. There is the potential for me to be called as an expert witness on p2p technologies. 107 Do you think that it would be helpful for the IPO to publish its own interpretation of problem areas which may have general interest and relevance? What sources should it rely on in doing so?

Without a doubt. It should rely on any and all sources of news and fact available, including reaching out to news sites and blogs that specialize in the field, to see what issues come up or are popular there. 108 Do you agree that it would be helpful to formalise the arrangements for these Notices through legislation? Please explain your reasons.

Certainly, as it then creates a binding framework from which to work and which can’t be easily abandoned or forgotten about. 109 How do you think that the IPO should prioritise which areas to cover in these Notices?

As noted above, evaluation and contact from news services and communities that work and focus on this topic, as well as more general organisations like CAB’s can help indicate where confusion lies.

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110

Does there need to be a legal obligation on the Courts to have regard to these Notices? Please explain your answer.

As noted, if there are cogent arguments, well-reasoned, then there will be amble reason for them to be regarded without obligation. However, without a requirement, people may follow guidelines in the notices, and then come across a judge that holds a different interpretation, and fall afoul of things. Thus at least some recognition, at least, would be required. 111 Are there other ways in which you think that the IPO can help clarify areas where the law is misunderstood? How would these work?

Not at present. Not beyond simplifying the law, removing exceptions, and shortening and clarifying the term length, revitalizing a market which has grown stagnant through copyright protectionism. 112 Do you think it would be helpful for the IPO to provide (for a fee) a non-binding dispute resolution service for specific disputes relating to copyright? Who would benefit and how? Are there any disadvantages of IPO operating such a service?

As it would be non-binding, it may be useless. By the time a copyright fight reaches the stage where outside arbitration may be needed, often we’re already at a significant financial investment, and a non-binding service probably wouldn’t help. However, if it’s handled like a small-claims court, it may be useful, especially for the ‘small time accused infringer’, by taking away the ability to drown the defendant in litigation, as is currently the practice. It may even have stopped the ACS:law/Davenport Lyons speculative invoicing copyright scams right when they were starting up. 113 What would you be prepared to pay for a dispute resolution service provided by the IPO? Please explain your answer, for example by comparison with the time and financial cost of other means of redress.

£100 maximum. For a non-binding service, any more would be money better spent on a lawyer for a court case. 114 Which would you find more useful: general Notices on the interpretation of the law (free) or advice on your specific dispute (for which there would be a charge)? Please explain your answer.

General notices. Not only does it benefit “me”, but everyone else too. And for my specific case, I’d want to consult a lawyer, and have client privilege enabling me to explain the entire details. Specifics are only ever as accurate as the tale the one asking gives, which usually isn’t that accurate.

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