Sunday, 20 March 2011

Hargreaves #2: a response to comments so far

It’s great to have had some feedback to my post last week (Hargreaves and the Call for Evidence: why creating an RCP is easy as 1, 2, 3) and I think it illustrates the challenge ahead for Professor Hargreaves and team.  As well as the comments below the original post (see in particular @drycloud's blogged response at over the counter culture), Emily Goodhand (@copyrightgirl) and @BrightSparkBlog have responded with some comments on Twitter which can be found by searching their @names.

I’ll respond to some of the points that have been made.  But first, a quick caveat.  I normally blog as me in my personal capacity, not to reflect the views of the FT (my employer).  However, on this issue those views are aligned so I make no apology for the "we" and "our" references in this post and indeed I've partly worded it using these terms to make clear that my posts on Hargreaves do generally reflect a corporate (and personal) position, not simply a personal position.  Blogging transparency and all that.....

To address PDJ Bradley’s (@drycloud) points.  I’m not saying that the Pre-action Conduct Practice Direction has not worked and indeed it is well-intentioned.  However, it only really comes into play once parties either are litigating or are about to.  The RCP is intended as a body that people could turn to before that point in time.

Although I disagree, I see the rationale behind @drycloud’s argument that the RCP could form a choke-point to be cynically used by rights-owners.   I doubt I can convince @drycloud that this is not our intention – but it would require an uber-cynical rights-owner to spend time researching an idea, presenting it to Hargreaves, and to blog on it to gauge views, all with the intention of abusing the RCP if it ever sees the light of day.  I do however agree with the point made by @drycloud (and also by @copyrightgirl in her Tweets) that the Panellists should be drawn from a wider constituency than originally suggested, to include academic institutions and non-commercial users.  The broader the Panel, the more effective (and objective) it should be, which is in everyone’s interests.

As for @drycloud’s “revolving door corruption” theory, well yes, the Panel clearly would need exemption from liability for its decisions.  But a weak or “bad” Panel would mean an under-utilised Panel which ultimately would mean a non-credible and extinct Panel.  Surely if the right mix of credible Panellists were chosen to sit on the RCP, the risk of revolving door or any other kind of corruption would be mitigated?  Let me be clear.  We are NOT proposing a Panel staffed by rights-owners for the benefit of rights-owners.

And in final response to @drycloud’s points, the Pearson submission to Hargreaves (publicly available at the IPO website) does focus on DRM as another solution.  My Pearson colleague @simonjuden can talk with more authority on that subject than me, but suffice to say, we see that common meta-data standards can only have benefits for owners and users.

Emily, BrightSparkBlog and Richard Moorhead (@richardmoorhead) all rightly pose questions as to under whose authority the RCP would sit – for example,  as part of the IPO or pursuant to some kind of Ombudsman model?  Richard also asks whether its decisions could be binding.  To be honest, I’m not sure under whose auspices it should sit and others within the IP community will have more informed thoughts than I do on this point.  We certainly aren’t trying to create a Press Complaints Commission type model for copyright, because we’re aware that “self-regulatory” models raise suspicion as to their intentions.  But neither did we want to recommend a statutory body, as we’re not sure in the current environment that government has time/money to establish and fund a body such as that we’re recommending.  We believe the Panel could be more or less self-funding by petitioner’s fees (particularly since the “Panel” would be a reactive body, sitting only to hear petitions; it would not be a body such as say the Advertising Standards Authority that needed a full-time staff to operate it).  As for Richard’s binding or non-binding question – we deliberately went the non-binding route for two reasons.  First, to suggest something that can be established relatively cheaply and quickly and which can also operate on a cheap/expedited basis.  Second and more importantly, to create something that can facilitate deals between owners and users (like CEDR), not something that by its binding nature is adversarial.

Finally, I look forward to hearing more from @shireensmith if Shireen has the time in relation to why she does not think the RCP would benefit start-ups.  I don't know Shireen's exact client base, but I certainly assume Shireen knows the start-up scene far better than I do, so it would be good to know why she believes the RCP may not benefit some of her own clients.  Wouldn't there ever be any benefit in a start-up/SME getting an objective and cheap Panel view on whether a new business model might fly or run into legal issues early on?

I’m grateful for all of the comments – and any more that may follow.  It would be boring if we all agreed, wouldn’t it?   And it’s only right that any new ideas that anyone has put forward to Professor Hargreaves have their tyres kicked by all sides of the digital marketplace to either improve them or to prove that they are non-starters.  I hope the idea of an RCP can be improved with more critical analysis rather than proven to be a non-starter.


  1. I don't think the proposed solution addresses a real problem start ups have. In my experience it’s rare for a business model to turn on a complex question of copyright. Start up budgets for legal help is often low, and their copyright questions are fairly basic. I've never come across a scenario which would merit consulting a Tribunal for definitive copyright advice. For example, we advised someone a few months ago who wanted to establish an aggregator business. It didn’t involve complex questions of copyright law to point out the risks. Litigation that Google has faced in this area across Europe and the USA, was enough indication of the likely issues the business would face. I'm not sure what a Tribunal could have added to the guidance we were able to offer very cost effectively.
    Normally, people do not have a business idea that rides on having an accurate opinion on a single complex copyright question. As long as they find a lawyer who can advise on copyright they will be able to receive accurate advice.
    The issue most start ups raise is whether they can patent their idea, and how they can best protect their business, rather than whether they can do something under copyright laws. So, if there were a tribunal that could issue opinions, the demand from start ups, would be for opinions on patentability. Many have nothing more than a business idea, for which they produce an application. However, as an adviser you need a good understanding of computer science sometimes to be able to tell them whether a patent is potentially available. So, a tribunal that could give answers on technology patents may address a need I've noticed start ups have, but copyright, no. However, there are plenty of patent attorneys around, so not sure why a tribunal would be needed even here.

  2. Given the speculative stage we're at it's hard (and possibly futile) to argue specifics. Better to build common ground and consensus, so I've little to add to the fine responses above (although for my part I'm still not seeing why we need to mandate a single solution, rather than have a fertile ADR ecosystem; and I have some other concerns which don't go addressed by this, but were perhaps wide of the mark, so best to let them lie on my blogpost than drag them back here), save that I wanted to stamp on a further perceived difference of opinion.

    "We are NOT proposing a Panel staffed by rights-owners for the benefit of rights-owners."

    I didn't want to allege this, though perhaps I did. I tend to focus on rightsholder behaviour, but as I pointed out on Twitter to @copyrightgirl, the revolving door can communicate with Youtube HQ as well!