Copyright law might not be something that most people are very familiar with, even though it has broad implications for their media use, from trying to figure out which films are available on Netflix compared to Amazon Prime, to whether it’s legal to use and share a particular image or piece of music. A UK government post-implementation review call for evidence that just closed looked at the effectiveness of several elements of the Intellectual Property Act of 2014. While the questions that framed the call for evidence focused on economic impact and organizational implementation, Lee Edwards (Associate Professor, LSE) and Giles Moss (Associate Professor, University of Leeds) argue here for the importance of gathering data about the effect of copyright on the day-to-day lives and experiences of the public as they engage with creative work.
Grey areas of copyright continue to pose significant risks to individuals and organizations for whom copyright law is uncertain, shifting terrain. When responding to a recent Intellectual Property Office (IPO) call for evidence on the effectiveness of copyright law, we found that the questions framing the call emphasize economic impact and organizational implementation and do not seek to elicit the views of the public about the impact of the changes made in 2014.
However, our research has shown that the public have a lot to say about copyright, based on their experience and knowledge of copyright policy in many areas of their lives, and would likely welcome the opportunity to be heard by government on these issues. A research project that we conducted in 2016 with the general public about their experience of and attitudes towards copyright law demonstrates this effectively.
Our research involved a deliberative event, ‘Living With(in) Copyright Law’, which brought 88 members of the Leeds public together over one weekend to discuss the nature of copyright law, its implementation, and ways it might change. Participants were provided with information about copyright from advocates and experts in the field and then asked to discuss key questions related to copyright duration, copyright exceptions, and copyright enforcement and penalties. No specialist knowledge of copyright was required of participants, although some had more detailed knowledge than others. We assumed that their understanding of copyright would be a product of the current information and media environment, as well as their own personal and work lives, and the materials provided for the event drew on news stories and examples of how copyright is used in day-to-day life and popular culture, in order to reflect the different ways in which copyright is discussed.
Knowledge and complexity in copyright law: ‘Nobody can see the logic’
The IPO’s call for evidence included a strong focus on the operation of current copyright exceptions. This is particularly important, since exceptions to copyright legislation protect public access to copyrighted works. It is an area where public knowledge should be robust, but the most significant finding from our research relating to copyright exceptions, is that our participants had very limited knowledge about what constituted an exception. They recognized that exceptions determine what is and is not permissible in their use of creative work, but were not sure about how copyright law determined the criteria for exceptions, or the boundaries for deciding whether a particular type of activity counted as an exception. In the pre-event survey, for example, respondents were asked their opinion about the adequacy of the range of current exceptions (without naming them), and a second question about the importance of different factors when deciding on exceptions. Nearly 60% of respondents to the pre-event survey did not know whether current exceptions were too extensive or not, but this dropped to 9% in the post-event survey, following the deliberative event where the topic was discussed. Among those who felt they could answer the question, most felt copyright exceptions were not extensive enough, and this pattern remained the same in the post-event survey.
Responses in the pre-event survey indicated that the public felt the most important factors to consider when deciding on copyright expectations were protecting rights holders and promoting creativity, although following the deliberation, expanding the public domain increased in importance. A significant proportion of respondents did not know, or could not judge, whether a factor was important (between 12 and 18%, depending on the factor).
In the group discussions, our participants raised multiple considerations and justifications of exceptions, drawing on existing arguments about copyright, reflecting on ‘grey’ areas in practice, and questioning the actions of users as well as corporations in the creative industries. In doing so, they demonstrated active engagement with complex arguments and became aware of where the evidence for the status quo is insufficient.
For example, they discussed the feasibility of using concepts such as intent to decide whether a use of creative work could be categorized as an exception or a breach of copyright, given that intention is so hard to prove. They also questioned the notion that one might be able to quantify creativity, in order to establish whether a work was genuinely ‘new’, a parody, or a copy. Some participants argued that original creators should be able to control how a work was used, rather than it being purely a matter of law or determined by rights holders.
In sum, our participants demonstrated that there is a great deal of uncertainty about what is or is not an acceptable ‘exception’ in relation to copyright and about the rationale for decisions made. This is exacerbated, in their view, by the fast-changing technological environment that facilitates new forms of creativity with which copyright exceptions cannot keep up. The result is that while fundamental principles connected with copyright policy – reward and recognition for creative work, freedom of expression, and so on – are clear, our participants felt that the vagueness of their application in this complex environment meant that in practice, ‘nobody can see the logic’. Logic also came up when participants argued in favour of a private copying exception to enable format shifting for private use; and in favour of sharing digital creative work that has been purchased as a private copy, in the same way that one might lend out a book or a CD that one has purchased.
Participants felt their lack of knowledge about copyright was a significant concern, especially as it may have a bearing on people’s everyday media practices and place them in breach of the law without their knowledge. The participants also argued that the imbalance in knowledge about copyright exceptions led to an imbalance in the ability of rights holders and creators to pursue copyright infringement when it did happen. Corporate rights holders were understood to have considerably greater access to legal and financial resources to both identify and pursue infringement as well as to defend against complaints. Individuals and smaller organizations, on the other hand, were in the opposite position, because of the vagueness and complexity of putting copyright law into practice.
While the financial impact of copyright law and its effect on organizational operations are both important factors in assessing the law’s effectiveness, our research highlights the fact that these cannot be the only measures of its success. Consultations and calls for evidence need to find ways to take public understanding of copyright law and its implementation into account. The changes made in 2014 were significant, but even more change may come with the implementation of the European Copyright Directive and the ongoing pursuit of the Digital Single Market in Europe, both of which have important implications for UK law and policy. Ensuring the voice of the public is represented effectively in future policymaking processes about these and other changes may be a challenge, but it has to be met if our copyright laws are to be seen as legitimate and effective.
This article represents the views of the authors, and not the position of the LSE Media Policy Project, nor of the London School of Economics and Political Science.