Copyright: The Google question

It is remarkable that the PM David Cameron launched the review into intellectual property praising the Google model while at the same time Google is facing hearing in both houses of the US Government over its failure to deal with pirate websites. Google has be criticised by US lawmakers for promoting pirate sites by ranking them at the top of searches while at the same time allowing them to thrive by bringing in revenue through the Google AdSense scheme. Google pays around 2% corporation tax for its highly profitable operations in the UK and employs very few people here. This is the model that David Cameron thinks will be an engine for economic growth.

But what is more strange is that Google wants to totally replace the copyright system with one based on the US Fair Use Doctrine (FUD) that decides what is and what is not an infringement. FUD has developed as part of the US copyright system and it is a loose set of principles that together with the developed case law give a sketchy idea of what might be allowed. What is allowed is either what you can get away with if you are not challenged or what you can do if you win the case. Generally the only way to determine what is allowed is to test it in court.

In the US this system works in the US because, as Professor Hargreaves found out when he visited Silicon Valley, the place is infested with lawyers. But it is a system that works in the US because companies are ready to challenge other companies and the copyright landscape has developed in response to the way business is conducted there. The case law has grown out of 170 years of industrial, scientific and intellectual progress supported by financial institutions that understand the risks and how the system works.

The UK approach is to have clearly defined exceptions to copyright that reflect the needs of various parties and that can change and develop as needed. All very tame but it is a system that works. One of the main problems is investment. Considering that our copyright system is fairly clear cut and the financial institutions are so ambivalent towards industries whose main assets are IP, what would they be like if the UK were to adopt a system like that of the US. Then there is the problem of the 170 years of missing case law. Its a shame that the Google book deal has stalled in the US we could have used their case law.

I think I agree with the comment that a fledgeling Google would have been hammered in the UK. Copyright laws seem to be far more zealously enforced here than in many other countries. Current Copyright laws are anyway a bizarre over-implementation of the legitimate aim of providing protection to people who create things:

For example, one day in 1963, four guys from Liverpool went into a studio in London for about 12 hours and recorded 12 songs. Now, pushing 50 years later, two of those four guys are dead; the cost of the recording session has been recouped hundreds of thousands of times over and the participants rewarded many many thousand fold. Somewhere north of 3 million copies of the tracks they recorded that day have been sold worldwide. They've been sold at premium prices for over 45+ years, yet, the Beatles' "Please Please Me" album is STILL retailing at around 8 pounds or more - for a product that costs, perhaps, 50p(?) to make - with a lot of the rest going to the copyright holders.

It's obviously necessary to protect and ensure rewards for creativity (though how you do that in this digital age is a whole other question) but the copyright laws as we have them now, are simply over the top, refer to a bygone monopolistic media world, and need to be amended to be less loaded against consumers.

Alan T

I work in the creative industry, so I'm pretty intimate with our UK copyright law: although it was designed with good intentions, to protect someone from infringing my copyright in my creative work, it is actually a complete mess. It is technically possible for me to infringe myself, according to the law (although, obviously I'd have to be pretty stupid to actually sue myself over it)! And yet, if I create an artistic work, then hire a photographer to take pictures of it, the copyright in the pictures belongs to the photographer: the photographer could then do whatever he or she likes with those pictures and I have no say in the matter, whilst they could also prevent me from ever publishing them. All these silly points could do with some clarification, which would perhaps make the law even more complex, or alternatively the law would benefit from relaxing some of these restrictions slightly.

So yes, I completely agree that companies like Google (and Apple, Microsoft etc.) would never have got off the ground here. Even with their example as successful companies, British startups that are in any way creative or innovative just don't attract the investment they need. Even Dyson had to go abroad for funding. A bloody vacuum cleaner, for God's sake! This country, and it's government, have no imagination whatsoever, and it won't change until we start actively encouraging this mythical "spirit of entrepreneurship" that other countries seem to have in bucketloads, and we don't.

What David Cameron is saying is clearly demonstrated that the US still boasts the most leading edge IT, Internet and Telecommunications technology innovators ... Microsoft, HP, IBM, Google, Motorola to name but a few.

The UK by contrast no longer has any equivalent in any of the high-technology sectors - much smaller nations such as Sweden (Ericsson) and Finland (Nokia) compete much more effectively with the USA in terms of products and innovation (R&D).

It was one of those lazy days when I was reading the financial pages of a Newspaper. There was a half page display advert from a banking consortium wishing to make a huge investment in the Swiss Banking Market. What was the name of that once in a life time investment opportunity called again; oh I will just have to google it some other time when I'm not slouched over a cash point machine.

The US might have more relaxed copyright laws, but the US also has ludicrous software patents laws that enable companies to do things like demand royalties for the privilege of, say, reading an MP3 file. We recently saw with Microsoft's patent claims against Google's Android how easily these patent laws are being used to hinder competition, and it hits small companies especially hard and makes it near-impossible to compete with the giants.

I'm happy to consider cases to relax UK copyright laws, but there's no way I'd swap for the American system.

3. At 21:25pm 8th Apr 2011, Graphis wrote:
and it won't change until we start actively encouraging this mythical "spirit of entrepreneurship" that other countries seem to have in bucketloads, and we don't.

===============

It won't happen, being succesful in the UK is a hazardous experience, at least on the Estate I live on - don't waste money on a new car, or even a nice second hand one, it will be scratched or vandalised, - have a new TV or a computer - get alarms and cctv, otherwise you will be burgled, and even if that doesnt' happen, try dealing with the red tape and tax regime. I've just been told I have to ensure my employees cars are in tip-top condition and well maintained as they use them for work - so not only do they get a mileage allowance off me to offset the costs, but I now have to ensure they use those to maintain their own cars, I'm also apparently responsible for how they set up their home offices , if they sit correctly , is any computer screen at the right angle with the right lighting - I am employing adults, I give them total control over many business decisions in their own spheres, yet they are not to be trusted with chairs, or cars!!! If you want to be an entrepeneur, go abroad, I'm wishing I hadn't bothered, I should have used the money to move off this Estate instead of risking it expanding my business.

@Graphis
' And yet, if I create an artistic work, then hire a photographer to take pictures of it, the copyright in the pictures belongs to the photographer: the photographer could then do whatever he or she likes with those pictures and I have no say in the matter'

Um no, only if you are being very generous. That would be a work for hire, they would be doing a job for the client and you would be the client. This would be agreed on in the contract they would be signing when they get and do the job.

It's like the issue with the National Gallery and photos of their artwork. They own the copyright of the photos of the artwork, not all photos of the work. They have the right of control over their own photos.

Most people don't realise that until a few years ago all the copyright to the scientific output of journal articles of all the government funded research councils was just given to the publishers for nothing. Of course now the copyright is kept (for data mining etc) but we are now spending maybe $3000 a paper on making it open access within 6 months. So there are costs incurred on even keeping the information and making it available to the public that has already paid for it several times.

Graphis: I don't see how infringing your own rights would be possible. The whole system is based around requiring permission from the rights-holder where necessary, and since that is yourself you already have your own permission.

BeachyHed: I think ARM (https://www.arm.com/%29 might disagree with your assertion. "Today ARM technology is used in more than 95% of the world’s mobile handsets and over one-quarter of all electronic devices." [Unsuitable/Broken URL removed by Moderator]

@opaqueentity

"Um no, only if you are being very generous. That would be a work for hire, they would be doing a job for the client and you would be the client. This would be agreed on in the contract they would be signing when they get and do the job."

Oh yes, I agree. But I've lost count of the number of photographers I've worked with who've disputed this. Older professionals who've worked in the real world for a number of years usually know the score, but the younger ones, fresh out of college, are utterly convinced the photographer owns the copyright in everything they do under any circumstances. I think they are being taught this in college. And even lawyers I've spoken to are tending to side with the photographers. There's some serious misinterpretation going on out there, and it's down to our badly phrased copyright law.

Actually, to clarify my above post further, the 'work for hire' rule doesn't always apply (in UK law, if an author of a work [i.e. a photograph] is not an employee, then they, and not the employer, own all rights), and I've come across many photographers who simply refuse to do the work under such a contract. They cannot see that by asserting their own rights, they are trampling over another's.

Looking from the educational perspective - until something changes from "share all" to making money then IP should be free. As long as if doesn't undermine revenues then why not? Creative Commons is a good system of licensing. It is all far too complex - this country is unimaginative in this particular area I'm afraid.

I remember this sort of issue being brought up in an article by Tim Buckley Owen in the early 1990s in his column for Information World Review. He couched the scope of his concern in the need for better European copyright laws to provide for the re-working of databases. This was a time when annual subscriptions for some CD-ROM databases were priced in the thousands and the difficulties of negotiating appropriate licences for new compilations were becoming apparent. I would argue there is a need for better recognition of "subsidiary IPR rights" granted to individuals when purchasing a product where payment goes to a copyright holder. Thus if I purchase an encyclopaedia, a third-party should be able to provide me with updates provided they restrict sales of their re-works to those with evidence of an original purchase. Subsidiary IPR rights also imply the final separation of physical sales (media format) from IPR content.

If I buy a song I should be able to store and listen to it in a thousand ways. This would greatly benefit the music industry provided the law enforcement agencies developed an effective way to monitor and pursue copyright evasion. That would likely be based on a new system not dislike the tax system where retrospective audits of personal collections (video, audio & text) are made against a national registrar (database) of payments made of owned digital content. On a practical level it could mean police raids to uncover a home user with a wealth of digital content but no registration of any ownership. It would also mean being able to buy a latest music CD from the high-street for 50p on the basis the IPR content is already owned (it was already downloaded or the original CD was damaged).

However I think the issue of why the UK is not a good place to launch the next Google is different. Some failure of entrepreneurship has been because the previous government's "white heat" strategies were inadequate and spearheaded by second-rate tinkers rather than thinkers. Mediocrity meant a "far-too-kind" attitude and a willingness to help everybody with a digital cultural product idea rather than backing winners in the pursuit of true global excellence. It is often a photo finish between winners and losers in Web 2.0 technologies. The power and importance of "interaction design" should not be underestimated. For instance YouTube "took all", while larger and competing video communities vanished with nothing. IPR has its place and any government smart enough to legislate quick enough to spare the commercial space from the "attack of lawyers" is laudable. However a government also has to identify and target correct stimulation of enterprise by new and innovative means.

For Web 2.0 innovation in the UK, the success of government stimuli will depend on understanding the "photo finish" factors and legislating correctly to ensure future grants are much less wasted on mediocre ideas. The other side is to apply much better quality control of how grant funding is spent. The DTI marketing grant in the 1980s awarded to some with "enterprise allowances" could not be spent willy-nilly but only with a registered list of practitioners. It would be wonderful if the UK government thought itself capable of understanding Web 2.0 technologies enough to create such a registrar or list. Otherwise excellent ideas are implemented in mediocre ways which in Web 2.0 world is the same as being mediocre and winner takes all.

Just can't see why the UK Copyright laws would prevent a Google starting up, UK Copyright law does have 'Fair dealing' included which would allow search engines to index documents. Additionally, the role of a search engine is to provide an index to web pages, not copy and replicate the original pages, thus would not have fallen foul of Copyright. The issues restricting a Google startup in the UK are more money related - there isn't the investment to promote startups. Of course, this also means that the startups don't have the money to defend themselves when a much larger company sues them for copyright infringement whether they are right or wrong - but that's not a fault of the Copyright law.

My company developed some software and under advice from a leading patent/IP lawyer we didn't even try to copyright it as, so he said, it is virtually impossible to copyright software in Europe. Had we been in the US it wouldn't have been a problem. Perhaps this is an imbalance that needs looked at and could be an underlying reason why America will still be the place to be if you want to create a tech based company.

George, as a non-specialist that strikes me as highly strange - copyright should apply to any creative work to stop people for example directly copying your software code. In the UK the copyright ought to apply automatically without need for registration. Is the difference that your adviser spoke about based on some manner of patenting the purpose of the software (e.g. where some tech company patents (probably in Delaware) the concept of pinching etc to zoom in/out of touch screens - rather than any invention of a particular way of doing it)? If so then I agree with Chris Neville-Smith's view above.
If there was something else stopping it then that sounds rather worrying, like Graphis' points (even though there it seems to be people being idiots and not only the law that's wrong...)

George: I agree broadly with AJS. Software copyright is essentially the same as for a work of literature (a book, etc). It even survives translation to a different language (English to French, C to Java). I have many years' experience of software copyright in practical terms (I'm not a lawyer) and feel sure that your legal adviser was referring to software patents - which are contentious and difficult.

Also, there are simple tests that can be applied to test infringement of software copyright which most jurisidictions would accept simply because of the parallels with established case law with literary copyright.

Ben wrote:

"BeachyHed: I think ARM (https://www.arm.com/%29 might disagree with your assertion. "Today ARM technology is used in more than 95% of the world’s mobile handsets and over one-quarter of all electronic devices.'"

That's only because America's, and the world's, two main CPU manufacturers, Intel and AMD, delayed their entry into that market. Intel has just entered that market in a significant way and so has AMD. Sorry to say it but it is just a matter of time before such experienced heavyweights push ARM out of the market. And considering the interest expressed by manufacturers it doesn't look like it will be too long before that happens.

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16. At 10:19am 11th Apr 2011, George wrote:

My company developed some software and under advice from a leading patent/IP lawyer we didn't even try to copyright it as, so he said, it is virtually impossible to copyright software in Europe."

I'd sack the lawyer, as they're talking nonsense. (Or you're mis-remembering what he said)

You don't need to copyright software in Europe, as it is automatically copyrighted as soon as you produce it.

Maybe you're getting confused between copyright and patents, which are quite different, but related, things. Software patents are a bad idea, and most software companies (including Microsoft etc) think so too. Software copyright is automatic, and not substantially different between Europe and the USA.