Expect great freetard wailing and gnashing of teeth this week with the much-anticipated publication of the Hargreaves Intellectual Property Review in the UK. The review, announced last Autumn by UK Prime Minister David Cameron, was advertised as a way of updating the country’s supposedly stuffy old copyright laws to make them fit for today’s cutting-edge digital era.

Central to the review was the possible introduction of something dear to the hearts of freetards everywhere: a law permitting the so-called fair use of intellectual property. For those unfamiliar with the concept, fair use is a term that in the looking-glass world of Freetardia means the exact opposite of what it means on planet Earth. Down here fair use means what it says: somebody pays a reasonable fee for something and enjoys usage commensurate with the fee. It doesn’t much matter what that something is. A photograph, a restaurant meal or even some Class A drugs: the basic rules of the game are the same, and are constrained by what the seller and buyer agree are reasonable.

But on Freetardia fair use means anyone can take an artist’s product without paying or even informing the artist, and do with it what they will. Health and Safety Advisory: freetards only apply this logic to intellectual property. Even the most diehard freetards caution against leaving restaurants without paying, or heisting the Merc belonging to the drug dealer at the end of your road.

The freetards had high hopes of the IP Review, not least because they have a heavy hitter on their side: Google Vice-President Rachel Whetstone is married to David Cameron’s Director of Strategy Steve Hilton, a fact doubtless unconnected with Cameron’s assertion that Google could never have started their company in Britain due to the lack of fair use legislation.

But as submissions to the review poured in the freetards’ plans began to go awry. For one thing, Britain’s IP laws are more closely related to European IP laws, not those of the US. Then members of the review panel noted that fair use in the US had led to a large amount of litigation. And right on cue those raising this issue were presented with a prime piece of evidence: so-called appropriation artist Richard Prince – known in some circles as the Prince of Thieves for his ability to make millions recycling the work of others and flogging the results to the gullible – suffered a humiliating New York courtroom defeat for plagiarising the work of French photographer Patrick Cariou. And what had Prince’s defence been? Why, fair use of course.

Worst of all, although many UK small and medium size business claimed that the cost of using others’ intellectual property restricted business development, and therefore lobbied for the introduction of fair use, other larger businesses – those in the actual business of intellectual property – made the opposite argument. Publishers and broadcasters, including the BBC, ITV and national newspaper and magazine groups, lined up to make the case summed up by ITV’s Adam Crozier:

“If the government really sees creative Britain as being a growth story, the surest way to pull the rug out from under it would be to weaken the IP rules”

Photographers also made submissions opposing fair use to the review, but in these situations photographers tend to get squeezed between big publishers and end users, and their interests disregarded. But in this instance the interests of photographers and big publishing happened to coincide: in a truly epic irony fail, even the Daily Mail – notorious for their freetard approach to photography – attacked the fair use proposals, describing them as “Google’s latest power grab”.

Now, according to recent leaks in both the Sunday Telegraph and the Independent, fair use provisions have been dropped from the review proposals. So in this case, on the basis of the enemy of my enemy is my friend, photographers have cause to feel grateful to Big Media.

But so far as Big Media and the IP Review are concerned, the BBC for one has at least two faces. As revealed here last November, the thorny issue of so-called orphan works – defeated by the photographers’ campaign against Clause 43 of the Digital Economy Bill – is also back on the UK copyright agenda. It now appears that while the Hargreaves review will reject the proposal to introduce fair use legislation, it will recommend the introduction of an orphan works law.

Proponents of OW legislation like to claim that their interest is purely cultural, but the fight over Clause 43 of the DEB exposed many of the true movers and shakers behind OW legislation, all of them organisations with a stake in the commercial exploitation of such work. Prime amongst these movers and shakers was the BBC.

And sure enough, last Friday there was BBC Arts Editor Will Gompertz bigging up orphan works, oddly neglecting to mention that his employers were one of the main proponents of such legislation during the Clause 43 debacle of the DEB. A number of photographers, surely intrigued to see their TV licence fees used to employ someone enthusiastically promoting a scheme potentially detrimental to their livelihoods, dropped by Gompertz’ blog to comment on and correct his many errors and misassumptions.

Gompertz is of course not the first Beeb flack to pimp orphan works while forgetting to mention how the corporation hopes to benefit commercially from OW legislation. In November BBC advisor and former BBC Head of Copyright Stephen Edwards was caught playing the same game in the Guardian.

If Gompertz is right that the review will recommend the introduction of OW legislation, then he is also correct that such a recommendation is bound to reignite last year’s Clause 43 row. In which case we can look forward lots more OW pr fluff disguised as journalism from the likes of Edwards and Gompertz.

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16 Responses to “Mourning In Freetardia: No (Un)fair Use For UK”

  1. [...] Here's a nice blog that neatly summarises what the Hargreaves report may, or may not, say:- Jeremy Nicoll's blog Simon Brown http://www.simonbrownimages.com Reply With Quote + Reply to [...]

  2. Excellent and well written piece. Let battle commence..

  3. Jeremy,

    Provocative as always :) . Issues of intellectual property and copyright in the digital age are unavoidably complex. As a content producer, I certainly don’t consider myself to be a “freetard” although I think, properly understood, ‘free’ is an unavoidable component of the larger digital economy. I certainly have no interest in defending the likes of Richard Price who was rightly found to be in violation of the fair use provision in US law. I do though want to make a general point and ask you a question to clarify part of your argument.

    The general point is this – intellectual property is one of the essential ingredients in culture and society. Without information, stories, arguments, perspectives etc we wouldn’t have culture and society. Treating all intellectual property as a private commodity akin to a material good that has to be bought would at the very least restrict public discourse and collective discussion. Before you or anyone jumps on that point, that is not to say creators don’t have rights and shouldn’t be paid. Its just to take a step back and suggest that photographs, music, ebooks etc are not circulated as digital files because we want digital files – they are consumed because we value their cultural contribution. In this sense, I think your equivalence – that “a photograph, a restaurant meal or even some Class A drugs” (and the Merc) are the same and should be treated the same misses the distinctiveness of intellectual property, which in the end is what makes intellectual property rights such a fraught field.

    The question is this – having taken the step back and seeing that intellectual property is more than a simple commodity, are there not some aspects of ‘fair use’ that are essential to culture?. This is not about ‘fair use’ as in the Price case, or with respect to a new company using another company’s content, its about how fair use (or what is currently called ‘fair dealing’ in the UK) also applies to education, comment and criticism. Are you opposed to all aspects of fair use even in non-commercial contexts? Would you extinguish fair use/fair dealing for education, comment and criticism?

  4. Consumers are merely cattle for them to milk. An industry run by sociopaths and narcissistic assholes has no compassion whatsoever for the individual and will do whatever they can to increase their income while still crying alligator tears over piracy.

    They will persist in their delusion until the costs of adding protections exceeds what the likes of Intel are willing to spend (uncompensated) to implement. So long as it doesn’t interfere with my ability to use an OS that doesn’t respect DRM, or un-DRMd files, then the logic will simply lie fallow. Tragic so much money is wasted on such a tiny, worthless industry. Reminds me of Sony’s crappy MiniDisc players. Not mp3 players, though they tried to trick people into using them like that. Meanwhile the physical CDs were sitting there, ready to be played & ripped to mp3s.

    Now it’s Intel enabling another garbage DRM format, while there are DVDs & Blu-Rays right there to be played and ripped.

    On one hand, an overpriced, locked digital download only playable on a specific brand of a specific device. On the other hand, a physical disc I can play on any player, copy to my computer (not legally, even though it’s my right!!), lend, or sell. Tough choice there. What if enough people banded together, or some geek won the lottery, and put out a multi-million dollar product (game, movie, maybe music) with an advertisement. That ad would be a public service announcement that “information wants to be free”. Any time someone whines about torrents being used for piracy, point to this torrent. That’s the way to fight crap like this poisoning the cool stuff.

  5. prior_approval prior_approval says:

    ‘”For those unfamiliar with the concept, fair use is a term that in the looking-glass world of Freetardia means the exact opposite of what it means on planet Earth.” Well assuming that quote from the Register is accurate, that was a perfect of fair use as defined in American law – since I assume The Register didn’t pay you for it, or even ask your permission to use it.

    Much the same way that quoting what appears here – ‘But on Freetardia fair use means anyone can take an artist’s product without paying or even informing the artist, and do with it what they will.’ is fair use, as an example to point out what you believe.

    For example, that you seemingly believe that no one ever has the right to review any ‘artist’s product without paying or even informing the artist’ by providing examples of that artist’s work – such as quoting a passage from a published work, or juxtaposing two passages/images to reveal ‘inspiration’ (in some cases, what the less charitable might call ‘plagiarism’) – is why American case law explicitly provides for fair use in a number of settings. Especially when the passage or image is used as an example for mockery or negative comments on the skill or talent of the creator.

    This isn’t freetardia – this is merely ensuring, in an American understanding of the purpose of copyright law (which is to increase the public domain shared by all), that artists are not in a position to completely suppress any discussion of their work which involves illustrating that discussion with actual examples.

    Much like The Register did, using words which seem to have changed in the meantime. Which is an interesting point in and of itself, actually. One possible to point out under the aegis of fair use – including, possibly, the idea that maybe The Register itself was not faithful in its quotation. Which if true, could be illustrated by providing more examples from their copyrighted articles, without requiring the permission of, or payment to, The Register. This isn’t freetardia – this is ensuring that public discussion is not shut down on the whim of those offended by it.

    As for parody, another fair use right in the U.S. – just quoting your text without changing a word is sufficient.

  6. Steve Steve says:

    Is it half-term already? Freetards leaving angry garbled rants means school’s out, I guess.

    I am puzzled what point David Campbell is trying to make.

    “The question is this – having taken the step back and seeing that intellectual property is more than a simple commodity”

    Straw Man Alert: No one has ever treated IP as a simply commodity.

    “Would you extinguish fair use/fair dealing for education, comment and criticism?”

    Straw Man Alert: Nobody has argued that it should be. Most educational material is copyright material. It has been paid for. Licenses have been agreed. Surely a sign of the system’s flexibility, I would have thought.

    Arguments that require a row of straw man can’t be on strong ground to begin with.

  7. @Steve – before reaching for the cliches perhaps you might care to actually engage rather than abuse.

    In Jeremy’s post he equates “a photograph, a restaurant meal or even some Class A drugs” and the Merc. I’m suggesting that runs the risk of treating IP as though its just a commodity rather than something with cultural significance.

    The question is genuine. I don’t know Jeremy’s position and would like to hear. He discusses fair use in terms of Richard Price and UK businesses, and I don’t disagree with him about those points. But I am interested in other dimensions related to education, comment and criticism. Although common, its not the case that all educational use deals with material via licences. And general comment and criticism are domains different from formal education.

  8. Bob Croxford Bob Croxford says:

    Dear David Cambell

    Look at it this way. If I decide to become a property developer and own a housing estate which I rent out no one considers taking this away from me. Nor from my heirs and not forever. If I decide instead to become a creator I have a bunch of freeloaders who want to steal my property by changing the law on an almost yearly basis.

    University professors get paid for their work. Why shouldn’t I get paid for providing photographs used in education? Or any other purpose for that matter.

  9. Steve Steve says:

    I am not sure why you consider my comment an “insult”, David. You have erected two straw men fallacies in your argument, David. Both of these points seriously misrepresent the position of creators – it is an intellectual dishonesty.

    1) “Would you extinguish fair use/fair dealing for education, comment and criticism?”

    Nobody has attempted to deny access for education or criticism, using UK copyright law. If you have evidence otherwise, please state it.

    2) “I’m suggesting that runs the risk of treating IP as though its just a commodity rather than something with cultural significance.”

    The people objecting to the demands of sharecropping multinationals are creative people, attempting to earn a livelihood from their creativity. They would be the last to regard their work as “just a commodity”.

  10. Jeremy admin says:

    Hi David! Provocative? Moi? :)

    You raise two points: that of fair use, and that of the commodification of culture.

    So far as fair use is concerned, it’s a mistake to conflate – as you have – education, comment and criticism. I don’t know of any artists who object to the concept of fair use for the latter two; it would be rather odd if they did since they would be helping to render their own work invisible, and most artists – although not all – want their work to be seen.

    Education, however – I assume you mean formal education – is a different matter. I’m happy to listen to any argument that fair use – or to be more accurate, free use – should apply in education: but I’ve yet to hear one that isn’t based on special pleading. Let’s say a college runs a course that is heavily dependent on the presentation of photography as part of the curriculum. The students will of course be paying to take the course. The lecturer will be paid to lecture. One way or another the college will be paid for the use of the space. In fact every entity involved in the production of the course will be paid in some way. Except, apparently, the photographers, whose work is central to the course, without whose work the course would not exist, the students would not be educated and the professor et al would be out of a job.

    One other point on fair use regarding the Hargreaves report. I saw nothing in reports of its preparation that referred to the fair use issue in relation to education, comment, criticism or purely cultural use. The pressure for fair use was coming from the business community, their essential argument being that the cost of IP was too high, and the cost should drop, preferably to zero through the fair use concept. These are people treating IP solely as a commodity: it’s a business expense they don’t like, so they’d like to get rid of it as a way of increasing their profit margin.

    Regarding treating culture as a commodity, that’s just what capitalism does: it commodifies everything it can get its hands on. The technology that has enabled the commodification of photography in particular is easy to spot: the computer chip. The philosophy that has driven that commodification is also easily identifiable. The key phrase is in the third paragraph: “Mr Getty looked at the way the business worked, concluded that there was no good reason for it to be fragmented, and set about consolidating it.” And where has that led? To here: buy a picture and get a free Amazon voucher.

    You’re quite wrong if you think I equate a photograph with a restaurant meal, Class A drugs or a Merc: the point is that other people do. People like those pleading for fair use to cut their business outgoings. Or people like Getty. Opium used to be legal; perhaps it will be again. If so, why would Getty not go into the narco distribution business? After all to Getty, like photography, it would be just another commodity.

  11. @Steve – evidence of insult. Your first line in your first comment. My original comment made a general observation in order to ask a genuine question of Jeremy, so the idea it was constructing straw men re all creators (and that that was ‘intellectual dishonesty’) is preposterous.

    @Bob Croxford – I’ll respond below to your point in relation to Jeremy’s comment.

    Jeremy, thanks for the further comment. I’m not arguing for or against particular changes or proposed changes to UK law. I’m yet to read and digest the Hargreaves report, and I agree with your points on Price and the business users. I just wanted to draw out one of the potential problems with aspects of your position as I interpreted it from the original post.

    You say I am wrong to suggest you equate photographs etc with other commodities. This is where I got that sense. You wrote:

    “Down here [planet Earth] fair use means what it says: somebody pays a reasonable fee for something and enjoys usage commensurate with the fee. It doesn’t much matter what that something is. A photograph, a restaurant meal or even some Class A drugs: the basic rules of the game are the same, and are constrained by what the seller and buyer agree are reasonable.”

    “It doesn’t matter what that something is…the basic rules of the game are the same.” That sounded to me like establishing an equivalence between the image, meal, Merc etc. (And to that Bob added the housing estate). But perhaps you didn’t mean that?

    As much as capitalism commodifies (no arguent there), I wanted to suggest we should resist that commodification of all things and, in the context of education, comment and criticism see that – in some circumstances, not necessarily all, and not necessarily all the time – fair use involves the non-commercial presentation of an image, a song, a text or whatever as the basis for debate and learning. It was the quote I have repeated here that gave me the sense your position might want to restrict those elements of fair use associated with comment/criticism, so I’m pleased to see that is not the case, because I think the cultural discourse that permits is important.

    So to the issue of education. I don’t think its a mistake to see that education, comment and criticism are closely related. There should be a lot of comment and criticism in good education, formal education. I used to be a full time professor, but am no longer. Over the last decade I think I’ve paid perhaps £10,000 for image licenses to conduct research projects, and that money has come from scarce and hard to win research grants, so I’m no stranger to the idea that photographers (or at least their agencies) get paid.

    But let me tell you something about the practicalities of formal education – dare I say it, down here on planet earth. In the past I’ve specialised in politics and geography courses and looked at how the visual constructs our understanding of the world. In many of those lectures I’ve shown video clips from the news the night before or press photographs from the day that address the themes being covered. Making those connections and trying to get students to critically engage contemporary issues is part of what I think good teaching is all about. But in many cases they were shown without prior authorisation or payment.

    I’m afraid in the modern UK university two practicalities work against that. Contrary to the popular view of lazy professors, most teachers are under massive pressure, and there’s precious little time, given their multiple courses and other responsibilities, to get the license if you want to make your illustrations relevant on the day.

    Secondly, there’s actually no money for such purposes. Shocking as it sounds, I know of departments in very good UK universities where there is NO budget for teaching materials. Nada. Nothing. And now that the ConDems have removed ALL central teaching funds for ALL arts, humanities and social science courses, there is even less than nothing, and it will stay that way despite the higher student fees.

    So that’s the real world of education form the perspective of an individual teacher. I should say that as important as they visuals were to my courses they were far from the only content, so the idea that everything in the courses was done on the back of unpaid creators would be wrong. Equally, even if there were support staff to get licences and budgets to pay them, the sums we are talking about would have been relatively small.

    There’s no point anyone writing nasty comments in response to this, or sending the copyright police around, because I’m talking about the past. I’m no longer in that position. I’m not saying it should be that way. I’m not saying its right that teachers are in that position. I’m not saying its fair. I’m not advocating some theological ‘freetard’ postion. I’m just telling you how it was, on planet education, when teachers in formal education try to do their best. I have a feeling I’m going to regret posting this, but I wanted to give you the frank, practical view to show how in the real world of teaching the use of images in comment and criticism is part of education.

  12. Jeremy admin says:

    Sigh…David, I’ve already briefly illustrated the both the technology and the ideology that’s led to the commodification of photography. I’ve also pointed out that it’s others, not I, who treat photography as a commodity. If you want to insist in painting me as the great commodifier then go ahead; but it’s such a ridiculous position to adopt that you undermine the other points you raise.

    There are three obvious problems with so-called fair use as it is generally proposed:

    1. It’s not what it says on the tin. Come on, fess up: this is not fair use, it’s free use. So let’s just call it that. Fair is a relative term; free is an absolute. Fair is also a loaded term: by implication any other kind of use – i.e. paid – is unfair. Free, on the other hand, is a both neutral and accurate description. This isn’t just linguistic hair-splitting: it says much of the fair use lobby that they cannot even name what it is they propose without being misleading.

    2. It’s compulsory. I don’t have any problem with people asking for free IP so long as the people asking don’t have a problem with my refusing. But that’s not good enough for the fair/free use lobby: they want laws to compel me to hand over the goods. In other words, if panhandling doesn’t work they’d like a law to legalise mugging. It is morally right that those who create IP should have the right to decide who uses it, when, in what way, and whether and by how much they should be financially compensated for that use.

    3. It’s woefully [but probably intentionally] ill-defined. You write about the underfunding of the education system and how fair/free use can help. I’m not going to get into a debate on education funding because it’s not my area, but I don’t doubt anything you say: the problems are well-known. Many creators would feel more open to proposals for free/fair use if such proposals were limited to educational use. But they’re not. In fact I didn’t notice anything significant in the proposals to Hargreaves regarding educational fair/free use. The headline items were all business related: either big business [Google] or small business wanting free IP to boost their profit margins. It can’t be very hard to draft a fair/free use proposal that is limited to genuinely educational use, although so far that seems to have been beyond the ability of those who sit on committees such as the Hargreaves panel. Those who genuinely wish to see fair/free use for educational purposes would do their cause an enormous favour if they disowned those who are simply seeking to make a profit by scoring a free ride off the backs of creators.

  13. Well, Jeremy, I guess I’ll raise your sigh with a puzzled shrug of the shoulders…whatever your intentions, it seems either your writing or my interpretation of it is failing, and we are now largely talking past each other. Perhaps we’ll get the opportunity to thrash it out over a beer in a bar one day; I hope so.

    I’ll sign off by stressing again that I’m not a member of the “free lobby” as you describe it and, as I made clear from the start, I agree with you re the business-related fair use issues. As such, at least in relation to the comments I’ve made here, your last sentence is redundant because it is the distinction between, and unpacking of, the elements that got bundled up into the idea behind the notion of “no (un)fair use in the UK” that prompted me to comment in the first place.

  14. Bob Croxford Bob Croxford says:

    Perhaps I am not a typical photographer. I have always thought of my work as a tradable item. My first question to any prospective client is to find out what budget they have.

    I am old enough to have been making submissions to copyright committees for a long time. I made the very first submission to the Justice Whitford review. In it I argued for photography to be treated the same as all other arts so that photographers could ‘negotiate’ from a position of ownership of an asset.

    Composers do this, Sculptors and painters do. I happen to know that the new sculptures in the grounds of a local university were fully paid for. If there is no budget for teaching materials that is no reason for me to subsidise universities.

    Once upon a time I used to let academic text book writers use my images for free in their books in exchange for them donating a copy to an impoverished university in Zimbabwe. Not any more. They never kept their side of the bargain.

  15. [...] the most displeased, inevitably, were photographers. As predicted here, and described by the Register as “throwing photographers under a bus”, Hargreaves proposed [...]

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