Deep in the heart of the Hargreaves Review, some really powerful gems lurk
It is always dangerous to make early comments on substantial pieces of work like the Ian Hargreaves Review of IP which published this week. But having given it a first reading, there are a couple of things that jump out as being brilliant and completely engaged with the best thinking around at the moment.
Firstly his concept of establishing a UK Digital Copyright Exchange is very clever. It would provide the means to reform the UK’s licensing regime without having to dismantle or seek to alter the existing institutions. But instead build a new layer on top of them which ultimately could become the only layer necessary for licensing content.
Secondly he proposes a series of levers that would act as incentives to existing rights owners to cooperate and put their rights into the Rights Exchange. His suggestions (para 4.34 of the Review) essentially created an ingenious carrot to go with the stick that is the Digital Economy Act. What Hargreaves proposes is that if people want to get the benefits and remedies of the law, in going after significant copyright infringers, then they must also put their work into the Rights Exchange and collaborate with a forward looking, constructive development of the market. He also proposes “giving creators the right to withdraw from future publisher/record companies contracts where the latter are not marketing a creator’s work through the exchange.” This is a brilliant recognition of both the opportunities in creating a new friction-free market and also shows a great understanding of the agendas of the different stakeholders.
These incentives in some respects lie at the very heart of the Review as does the concept of the Exchange. The much needed solutions for how to handle Orphan works both in the commercial and non-commercial sectors are based around the creation of the Rights Exchange too. It will be interesting to consider how this proposal fits with the evolution of the EU’s Global Repertoire Database and the WIPO proposal that are being developed concurrently.
I’m sure that there are more gems, nuances, hints and subtleties buried in this carefully considered report, back to the reading. Now the challenge will be how to ensure that all these good proposals are adopted by Ministers. I welcome your comments.
M E D I A C L A R I T Y 
Not everything in the garden is rosy, Jeremy: http://bit.ly/lCADqL
The Digital Copyright Exchange carrots are fine; the sticks almost certainly breach Berne Article 5; commercial Orphan Works licensing and Extended Collective Licensing breach Berne Article 9.
Oh, and did you get permission from its rights-holder to use that picture of Hargreaves? You’re not using it under the Fair Dealing exception for criticism or review – it’s simply illustrating your article.
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I agree with Jeremy’s analysis. We need to focus on the big picture. There is an overwhelming need to modernise and simplify the licensing process, thus reducing barriers to entry into the creative business marketplace. Yes, of course, the DCE as a concept raises lots of legal, political and administrative issues, and those who wish to do so will find ways of shooting it down. But for those of us who care about the future of creative content and enterprises in a world of industrial scale piracy and pitifully small digital revenues Hargreaves, or some version of it, is the only way forward that I know of. We should give it a fair wind and try to make it work.
MS
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