Sam Dumitriu: Brexit means we can give copyright law a much-needed overhaul

14 Jan

Sam Dumitriu is Research Director at The Entrepreneurs Network.

Outside the European Union, we are free to keep the parts of EU law that work for us, while junking the parts that don’t. One area where we are already diverging is copyright.

Last year, ministers confirmed the UK would not implement the EU’s 2019 Copyright Directive. On balance, this was the right call as it contained the unworkable requirement that digital platforms would not only have to take down copyrighted content, but stop it from being uploaded in the first place.

In practice, it would have meant Twitter, Facebook, and YouTube being forced to develop and use upload filters to prevent copyright abuse. Not only would this create a large barrier to entry for startups aiming to compete with Google and Facebook, but it also threatened to have a chilling effect on users.

AI can accomplish incredible feats. For instance, OpenAI recently released Dall·E, an AI capable of drawing convincing images from extremely specific text prompts such as ‘a baby daikon radish in a tutu walking a dog’. But algorithms (mutant or otherwise) struggle to distinguish between infringement and exempt uses such as parody.

That’s a problem because people love to share memes. It might be easy for you or I to tell the difference between a meme and just outright copying, but upload filters will inevitably get it wrong and block legal content from being uploaded. In effect, memes would be banned. It is a great example of the European Commission’s failure to understand tech.

The meme ban wasn’t the only reason to junk the EU’s Copyright Directive. It would have also forced platforms to compensate news publications simply for linking to them. But where such “link taxes” have been implemented, platforms have responded by blocking links to news media altogether. The end result leaves everyone – platforms, users, and publications – worse off. A textbook case of the law of unintended consequences.

But we shouldn’t throw the baby out with the bath water. There are some good ideas in the directive. It places emphasis on needing a work to be original for it to be copyrighted. This would prevent organisations such as the National Portrait Gallery claiming copyright on the digital images of works that have long been in the public domain and then charging filmmakers and authors for the privilege of using them.

Sometimes the EU solves a problem, but the cure is worse than disease. You probably don’t realise but without an explicit licence, if you tried to digitise your vinyl collection to put on your laptop, you would be breaking the law. In 2014, the UK tried to change this by creating an exemption for ‘format shifting’ when a new directive gave them permission. But the high court, in interpreting the directive, blocked the exemption. They ruled that the Government failed to properly investigate how much rights holders should be compensated when granting the exemption.

In other EU nations, compensation came in the form of new taxes on printers, external hard drives and rewritable CDs. Understandably, our Government decided that would be a step too far and we have remained a nation of unwitting lawbreakers ever since. Now that we’ve left the EU, we can legalise format shifting without imposing a tech tax.

A key takeaway of the past year has been the value of pre-emptive action. Copyright is an area where reform needs to happen sooner rather than later. Under the status quo, most of us infringe copyright on a daily basis without realising, yet enforcement is rare.

But as Matt Ridley notes, commenting on ‘Fixing Copyright’, a new report from The Entrepreneurs Network, there is a “growing threat of mass litigation by the powerful”. AI will make it easier to identify unwitting infringers and threaten legal action.

This is a problem because recent court cases have defined copyright to apply more widely than anyone ever intended. In 2015, a court ruled that Robin Thicke and Pharell Williams’ ‘Blurred Lines’ had infringed upon Marvin Gaye’s ‘Got to Give it Up’ – despite the songs “differing in melody, harmony and rhythm”, according to one judge.

Currently, the cost of hiring a forensic musicologist (yes, that’s a real job) and bringing a court case is prohibitive, so only the most successful artists are targeted. Yet, if new tech makes it easier to threaten action, it could chill creativity. The UK’s world-leading creative industries would be forced to operate under constant legal scrutiny.

There’s a potential solution. In 2006, the Government-commissioned Gowers Review into copyright proposed a ‘transformative use exemption’. Sadly, the idea went nowhere as it wasn’t allowed under EU directives. But we are no longer bound by the EU’s directives and have the freedom to chart our own course. There is now a political imperative to identify tangible opportunities for regulatory divergence. So it’s time we took back control of our copyright laws and unleashed creativity.