05 March 2010

Lord Clement-Jones - Legislating on Copyright without Understanding it.

Having followed the progress of the train-wreck that is the Digital Economy Bill, there has been so much about it that is truly awful, that I've so far been unable to pick out any one bit to comment on. The replacement of the dreadful enabling act Clause 17 with a dreadful Tory and Lib-Dem amendment which creates a framework for web censorship under the pretence of preventing copyright infringement, has given me a kick-start, mostly because of this section of an interview conducted by ZDNET with Lord Clement-Jones, the Lib Dem peer who put forward the amendment:
Question from ZDNET: Some people have drawn an analogy with UK libel laws, where super-injunctions sometimes have a chilling effect on the media. Will this not also cause self-censorship in the face of expensive legal action, in this case by ISPs?

Answer from Clement-Jones: This is completely different. Libel law is often a matter of opinion. Sometimes there are super-injunctions made, as with [John] Terry, which are often designed to gag free speech.

This is about the protection of legitimate rights. It is perfectly easily establishable whether there are rights attached to a particular copyright owner.
Of course, what he says is utterly disingenuous. Copyright law is often a matter of opinon, just as libel law is. Take this posting as an example. I've reproduced an extract from the ZDNET article above. ZDNET holds the copyright on that article, so I have reproduced, without seeking permission, something on which somebody else holds the copyright. So, does that mean I have infringed copyright? No. It isn't quite that straight-forward. UK law grants fair dealing rights, including:
Fair dealing with a work for the purpose of criticism or review, of that or another work, or of a performance of a work, does not infringe copyright in the work, provided it is accompanied by a sufficient acknowledgement, and provided the work has actually been made available to the public.
Any copyright law not allowing that sort of use would be absurd beyond belief. It would effectively outlaw debate. No view could be subject to effective challenge, as the person expressing the view could claim total control over the use of their words and take legal action against anyone repeating any portion of them.

This is where opinion and judgement comes in, because there will always be a point at which fair dealing under the law becomes copying other than for the purpose of criticism or review. My quoted section above is, I believe, clearly fair dealing. On the other hand, if I put a full copy of a film on here and accompanied it with a review along the lines of "I like this film," then, even though I have reviewed the film, I think it would be hard to argue that my full reproduction of the film is fair dealing for the purpose of review. Between those two points, there will be a range of possibilities and where fair dealing stops along that continuum will always be a judgement call. The mere presence of material on which somebody else holds the copyright is not enough to declare material infringing, in spite of what Clement-Jones implies.

So, it appears that Clement-Jones either doesn't understand the issue he is legislating on, or he is being dishonest about it. Either way, his comments are a disgrace.

This example highlights why a court of law is the only place where material should be declared to be infringing copyright and any subsequent action taken. If the burden is put on ISPs and they are made liable for failing to stop any infringement which they have been informed of, there will be two effects. Firstly, there will be no opportunity for a fair trial and secondly, ISPs will naturally avoid legal risk by ignoring fair dealing considerations and taking down anything containing quoted material. Online fair dealing and the open debate which goes with it will be killed.

1 comment:

Crosbie Fitch said...

In terms of 'should'. No legislator or law should grant any person or corporation a monopoly over the reproduction of a published work. So, the court should only become involved in cases where someone has violated an individual's natural monopoly to their unpublished work.

The Digital Economy Bill could be compared to a papal bill granting sanctions against those proposing heliocentrity. Copyright is as defunct an anachronism as is Geocentricity. Strengthening the legal sanctions against it is to fight nature, and is folly of the highest order.