Open Rights Group submission to the SLSC's review of copyright reforms 2014

The Open Rights Group (ORG) is a leading UK grassroots organisation defending civil liberties and human rights in the digital sphere.

ORG relies on 2,300 paying members, around 50,000 active supporters and a council of high profile advisors — including the MPs Tom Watson and Julian Huppert, writers Graham Linehan and Heather Brooke, and leading legal experts and academics. Promoting online freedom of expression is one of our key priorities, with copyright being a critical aspect of this work. We also engage on issues of privacy, such as online behavioural advertising to government surveillance. In all these areas we deal with issues in their complexity. Our work on copyright tries to promote the public interest by balancing the rights of creators, consumers and society.

Below we present some specific evidence we have collected through our research, and from our extensive network of supporters. The areas we cover reflect where we believe that we can make a useful contribution to the committee's work through our insights and expertise. This does not mean that we are only concerned with these points and specific SIs. ORG would recommend that all the current proposals are adopted in their entirety, as much needed reforms to bring copyright up to date.

Parody

ORG fully supports the new exception for caricature, parody and Pastiche. Parody is one of the most effective ways to tell the world that we care about an issue that affects us. As such it is immensely important for social discourse and freedom of speech. ORG ran a campaign - the righttoparody.org.uk - to show the need for this change; over 1400 parodists signed our petition, and campaign groups wrote to the government asking for the change. Examples supporting the need for reform on parody

In order to demonstrate the need for new legislation, ORG has compiled evidence of limitations on free speech due to the lack of parody provisions in UK copyright law:

Greenpeace UK, Volkswagen and Star Wars

Greenpeace made a parody of Volkswagen's recent 'Star Wars' themed commercial. The original featured the original Star Wars score, with a child dressed like Darth Vader trying to use “The Force” to move various household objects. Greenpeace's response pitched the Darth Vader against a band of young Jedi, and was designed to highlight the apparent lobbying by German car manufacturers against stronger CO2 emission laws in Europe. The video quickly became the most shared 'ad' in the world. But as momentum behind the campaign gathered, the parody was ordered to be taken down from YouTube by Star Wars’ copyright owners LucasFilm. Greenpeace challenged the takedown, which had inadvertently blocked Greenpeace International's account. After more than two weeks of suspension, YouTube put their videos back up. Not every user making parodies will be lucky enough to have Greenpeace's legal team, and the downtime represents unrecoverable lost momentum. There was no question whatsoever of Greenpeace's advert “passing off” as Star Wars original materials.

Newport State of Mind

A now infamous example of UK artists' parody problem is the song and video “Newport State of Mind”. Created by two songwriters and a video maker in the UK, the song replaced references to New York in the original, performed by Alicia Keys and Jay-Z, with references to Newport. The video became an online sensation soon after it was released. However, it was taken down following a complaint by the original's songwriters, represented by the music publisher EMI Music Publishing Limited, disappearing from YouTube. The persistence of the video's fans means the song can still be found on YouTube. Why should a talented video maker or musician be at the mercy of the good will of the copyright owner, the efficiency of video hosts' take-down service or the persistence or defiance of their fans? You're Gullible

Regular parody creator "Eclectech" parodied the James Blunt's song "You're Beautiful". This took the form of a game that involved throwing tomatoes at a caricature of James Blunt, who was singing a song called “You’re Gullible”. The creator of the video received legal threats, which led to the take down of the soundtrack. Visitors are now encouraged to play the tomato throwing game while the (now) mute figure mouths the song and the lyrics appear as subtitles.

Downfall Parodies

The German film Der Untergang (Downfall) was parodied by users around the world. Constantin Films, the German company that made the movie, launched a campaign to have all these parodies removed from YouTube. Downfall probably gained a great deal (commercially speaking) from the immense popularity of users' viral clips. But Constantin Films failed to see the funny side.

A parody has to link to the original in some way - to its author, subject, values, genre and more. Some of the videos using the scene from Downfall are not a parody of the film or the scene or its subject. However, many of the Downfall videos did comment on the original or its subject. Yet no such distinction was made in the blanket takedown campaign. Of course, once again the users' persistence means that most of the videos can still be found online.

Mother's Best Child vs the Olympics: 'The Spirit of the Games'

Comedy sketch writers Mother's Best Child created an animated short called 'The Spirit of the Games'. Dropping the Olympic mascots, Wenlock and Mendeville, into the centre of one of the summer's riot hot spots, Dan from MBC told us that the 'first intention was to make people laugh. But the glaringly obvious hypocrisy in staging a billion pound event at a time of austerity and social unrest was a satirical gift.' Having accumulated over got over 90,000 views, becoming the number 1 comedy video on YouTube and number 3 on Reddit that day, Mother's Best Child told us the video had to be taken down following legal threats from the Olympics legal team, who cited copyright infringement. This is a clear case of copyright being used to inhibit legitimate critique of an event with a significant impact on the public. At the time, ORG contacted the Olympic press office for a response, but have yet to receive a reply.

Parodies under uncertainty

We have heard from many campaigning groups and individuals that they have sometimes ignored legal advice, taken risks and published parodies anyway. These parodies live in a state of legal uncertainty, remaining accessible only because the copyright owners decide not to have them removed. Here are some examples of highly effective parodies that currently live in this state of legal uncertainty. Many others, of course, are never published because campaign groups choose not to take the legal risk.

Tom Scott created a parody site 'Preparing for Emergencies' in response to a Government website of the same name. The aim of the joke was what he saw as the promotion of vague paranoia for political ends. About 12 hours after going live, he received a response from the Government asking him to remove the site. He refused, offering a link to the original Government site. 'Preparing for Emergencies' is still live.

Church Action for Poverty launched a successful campaign against BrightHouse, a high-cost lender. BrightHouse’s slogan is “Your Weekly Payment Store”. Church Action used the BrightHouse logo and colours and changed the slogan slightly to “Your weekly over payment store”. Not only did the parody of the logo and brand not get taken down, but BrightHouse was persuaded to attend the roundtable meetings with customers and Office of Fair Trading towards drafting a code for responsible lending.

ActionAid has created a few campaigns parodying major companies' apparent unethical business practices, despite having sought legal advice that highlighted the risks of infringement and its consequences. They parodied Tesco’s slogan “Every Little Helps”, asking consumers to send 5p to Tesco using a postcard on the ActionAid website with the slogan “Every Action Helps”.

They launched a similar campaign against ASDA, asking them to pay employees a living wage for clothes made in India. The ASDA logo “ASDA Price Guarantee” was transformed into “ASDA Poverty Guarantee”. They also used SABMiller’s famous beer brand Grolsch, using the image of the Grolsch bottle and the brand font to write Schtop. Using the slogan “Tell them to Schtop”, they collected signatures petitioning MPs ahead of the G-20 summit, asking them to help stop multinationals from exploiting tax loopholes in developing countries.

The Other Taxpayers’ Alliance parodies the Tax Payers’ Alliance by using a tongue-in-cheek variation of their name and website, with the tag-line “fairer taxes not lower taxes”.

For the campaign Airbrushed for Change, Clifford Singer created the website MyDavidCameron.com to parody the Conservative party’s re-election campaign posters of 2010 with the slogan “Year of Change”. According to Singer, the website, inviting people to create spoofs on the original poster, took off with more than 90,000 unique visitors in the first two weeks alone. The posters are a powerful piece of political speech and would have been impossible to create without infringing copyright in the original.

Parody and moral rights

ORG has been asked whether a parody will impinge on the moral rights of creators. The concern we hear more often is that creators may now be forced to see their work being used in a parody where they fundamentally object to the arguments being made or on some ethical consideration. For example, a leftwing music band could see their music used by a BNP politician. This is a valid concern but we don't think that it should detract from the implementation of the new SIs.

First it is useful to clarify some misconceptions about parody. A parody (i) is an imitative work created to mock or comment on an original work, its subject, author, style, or some other target, by means of satiric or ironic imitation. Pastiche, is a similar imitation without the satirical element, which celebrates, rather than mocks, the original (ii).

Simply using someone else's work in a way that does not involve some humorous imitation, mockery or comment is not a parody. For example, a politician simply using a modified version of a music track for his campaign without authorisation would probably not be a parody (vi), although in some cases it could be a pastiche. There is room for discretion to deal with any attempts to abuse this new exception. Assuming that we are dealing with an actual parody, caricature or pastiche, there no full agreement on the limitations that moral rights should place on parody.

There is scope in UK law for objections by authors to a treatment of their works. This is dealt with under the moral rights part of the Copyright Act. Some of these provisions aim to protect the integrity of the author's artistic expression. There will also be other requirements around moral rights, such as correct attribution of authorship.

The main concern here would relate to section 80 on “derogatory treatment”. But it is important to understand that this only applies to works that involve "treatment" of an original work, such as adaptation, addition, deletion, etc.

In some cases section 80 may not apply at all because a parody could be a completely new work without any such "treatment". In this instance a parody would borrow from the creative ideas in the original without interfering with the actual artistic expression (the text or image itself).

A parody that was not deemed a new work would amount to derogatory treatment if it's deemed to cause a prejudice to the honour or reputation of the original author. Many creators will naturally object to any negative treatment of their work, but a certain degree of negativity has to be accepted as part and parcel of freedom of expression. We must draw some distinctions: mockery or criticism are not the same as prejudice.

Proving actual prejudice is not very easy for good reasons, as interferences with freedom of expression should have a high bar. But the new parody exception will not have any effect on existing provisions for moral rights under UK law. It will be up to the courts, not the creators, to decide where the line is crossed from fair caricature, parody or pastiche into derogatory treatment.

Data Mining (computational analysis)

ORG fully supports the new exception for data-mining (computational analysis). We would like to transmit to the committee the view from our extensive consultation with independent technology developers and small companies: the data mining exception will remove uncertainty and provide clarity. It will also remove overheads in complex licensing deals and other legal costs. These may not be an issue for large research organisations or commercial companies, but can hamper innovation by those with less resources.

Some industry associations have argued (iii) that the reforms are not needed because there is no market failure, as a majority of requests for data mining are granted. But the percentage of requests for data mining granted does not take into account those requests that never take place due to perceived obstacles.

Private Copy

We join the Prime Minister's Intellectual Property adviser, Mike Weatherley MP, in supporting the new exception for private copy (iv):

“It’s only right that the law is catching up with technology and has made provisions for restrictive private copying. While I feel that it is important generally to maintain the integrity of copyright, the private copying exception was a sensible change that most people would see as a reasonable compromise and has hit the right balance between protecting freedom and respecting rights holders.”

ORG believes this is a sensible reform, and if anything quite limited in scope. The right to copy will be strictly personal and non-commercial. Citizens cannot pass on the copies, nor the original, to another person, including spouse and children. This includes restricting access to personal copies of files stored in the cloud. The proposals do not stop rights-holders from introducing Technical Protection Measures against copying. Only if these measures are excessive would the Secretary of State intervene to provide a remedy.

Despite the above limitations, the proposed Statutory Instruments are a very positive step. Millions of people in Britain will no longer be breaking the law when they copy their CDs into other devices.

Limitations on contractual restrictions

The SIs contain specific provisions that will make unenforceable contract terms that try to prevent or restrict acts specifically enabled by the new provisions. These clauses are very important and should not be removed from any of the SIs.

Contract terms are increasingly used to restrict modifications and reuse of materials. This is prevalent in the area of libraries and archives but not exclusively. For example, ORG obtained and analysed the contract between Google and the British Library for the digitisation of books (v), and found that it contained specific clauses on data mining, besides other restrictions on public domain works not protected by copyright.

References

(i): https://en.wikipedia.org/wiki/Parody

(ii): https://en.wikipedia.org/wiki/Pastiche

(iii): http://www.publishers.org.uk/index.php? option=com_content&view=article&id=1840:the-publishers-association-says- hargreaves-data-mining-proposals-are-an-unwarranted-blunt-instrument- &catid=503:pa-press-releases-and-comments&Ite

(iv): http://www.government-world.com/new-copyright-exceptions-strike-right- balance-says-pms-intellectual-property-adviser/

(v): https://www.openrightsgroup.org/blog/2011/access-to-the-agreement- between-google-books-and-the-british-library

(vi) e.g. as ruled in the case NJA 1975 s. 679