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Laurence Kaye

Laurence Kaye (www.laurencekaye.com) is an IP & Digital Media Consultant. Drawing on his experience working as a leading digital lawyer since the 1980s, he now acts as a consultant to a wide range of digital businesses. He is also a consultant with Shoosmiths LLP. Email laurie@laurencekaye.com. Twitter @laurencekaye.

liminality

I’ve always liked the word “liminality” – a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK’s current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission’s significant proposals for copyright reform have been greeted in the UK. The Proposal for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming, if adopted, will represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

The problem with a lot of the debate about copyright is that it becomes polarised. It’s “big media” v the “little guy”. It’s “closed copyright, a barrier to innovation” v “open internet, cultural advancement and freedom of expression”. It’s bad guy, good guy.

It’s also not unusual to read that the absence of a “fair use” doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation. No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian species, capable of adapting to the network. However, if we are going to move into a more nuanced debate, I think it’s worth making four basic points.

The first industrial revolution, which began in the 1750s, lasted for between 80 to 100 years. The pace of technological change today encourages us to believe that the second industrial revolution (IR2) will be completed at much greater speed. So if we take the mid-1980s as a starting point, with the emergence of optical disk technologies into consumer markets, you would expect us to be well on the way to completion, 30 years into IR2.

The copyright “paradox”

Copyright works, created by professionals and amateurs alike, are ubiquitous on the network, on social media platforms, websites and online services. In June this year, the Intellectual Property Office (IPO) and Imperial College published new estimates of investment in the UK’s copyright industries, of which the publishing industry is a significant part. When adopted in the National Accounts this adds more than £3 billion to the economy.

Copyright, in various guises, has featured heavily in the media this year, being in the spotlight at both legislative and judicial level, with high profile decisions in UK and EU courts, and numerous papers, reports, consultations and reviews at UK and EU level. In addition, developments in consumer expectations, business models, and technological innovations have fuelled the international debate over whether copyright is fit for purpose in the digital age.

“Law 2.0”, “digital media law”. Great tag lines but is it all “sound and fury”, signifying nothing new? After all, there are plenty of examples of how existing laws are being applied to the online world. Are the law and Web 2.0 an odd couple fated to be forever out of sync? Alternatively, are we moving slowly but inexorably to a position where the law will move seamlessly between the digital and physical worlds?