Can the voice of the average Jane/Joe make a difference to copyright consultations? - by Arunima Raina and Saurabh Tiwari
This blog delves into reporting and breaking down the CREATe Online Public Lecture ‘Reflecting on the Public Voice in Copyright Consultations” which was held on the evening of 25th November 2020.
The Speakers Dr Lee Edwards from LSE and Dr Giles Moss from University of Leeds explained the research (“Research”) they conducted to see the impact public has on Copyright consultations, if they are given more access to information and opportunities to understand copyright law. Their basic premise was that Copyright is a matter of public interest and attracts a basic level of agreement amongst all affected parties. With this understanding in mind, the common person should be allowed to debate and discuss it.
The idea was to challenge the set notion that copyright is too complex or too abstract for the general public to be interested in. It is seen through their thorough research that when given sufficient time and information, the people have strong opinions and insights on Copyright. The Copyright policy draws from the personal experiences, stories, songs and popular cultures of music and gaming. All of these are directed towards the public and therefore listening to their voices on these issues will only have a positive impact.
It was observed from the findings of the first research that the people are a critical audience, indulging in complex conversations. Here, they wanted to converse with the stakeholders and understand their differing point of view. However, the shortcoming of the first research was that corporates and creative voices were not included. The public concluded that Copyright policy is meant to support creative work and is justified by civic interest and priorities. The public urged the law makers to accommodate and protect public interest as their first priority rather than becoming a tool in the hands of the rich corporates to reach to their desired results.
The second research was stakeholder driven and included people from the fields of education, collecting society, creative writers etc. This research was impact oriented. It was built on the conclusions of the first research and was targeted at exploring how Consultation could be improved with the help of including the public opinion effectively. It was divided into Interviews, workshop and framework based on results. The study also included a few public members who were a part of the first research.
The study showed the context and areas in which Copyright consultation can improve.
(i) It was seen that consultations tend to reflect polarized views. There was not enough discussion to reach middle ground between the parties. An obvious observation was the absence of public in such discussions.
(ii) The consultations were vulnerable to power dynamics. Big companies with the capital could navigate, engage with on issues of Copyright. They could push forward the dominant agenda.
(iii) The consultations also tended to be very specialized and exclusive. Creative writers, civic actors and people from the creative industry may not follow the jargon that is used. During the consultations, there are formal and informal discussions, and it was observed that informal discussions were not open to all. It must be kept in mind that both type of discussions is equally important.
(iv) Including public in consultations is extremely important because there has to be a voice from everyone who is affected by it and copyright is one such subject. Ensuring participation of general public doesn’t influence situations where the outcome is already determined, or consultation is a part of process with decision making power resting elsewhere.
Notwithstanding the above, inclusion of the opinions of a broad group of the public in the Consultations is a challenge because there isn’t enough independent research on the way it can be done. The public isn’t well versed with the procedure of consultation or the technicalities and legal jargon used by policy makers. How then and in which areas would the public add value? What would be the process of obtaining their opinions?
This research established a framework for public to be easily able to engage with Consultations. It focused on two purposes and four principles. The purposes were Democratic, enabling stakeholder accountability and contribution, and Epistemic, developing knowledge that underpins policy. The principles are being inclusive, well-informed, equitable and accountable.
Dr Lee Edwards focused on the principle of being inclusive. Inclusion was widely recognized by participants because as established earlier, public is a stakeholder and should therefore be included in the consultation. Inclusivity, as argued by Frost, 2014, is a principle that is difficult to ‘reasonably reject’ without denying someone else a right that one enjoys.
Inclusion has two elements: access and participatory parity
Access is where all who have relevant knowledge or are affected by a policy can access opportunities to contribute to the consultations. This includes stakeholders knowing that consultations are taking place and using the right channels for submission of opinions and participation.
Participatory parity is a concept borrowed from the political theorist Nancy Fraser and is used in the context of Copyright, to understand the stakeholder’s capacity to participate. Participation can vary because of financial status, language used in consultation and time at hand, being used to the environment and feeling like opinion is valued.
The public concluded that inclusion was not achieved, and that the public was underrepresented in copyright consultation. The lack of participation matters as it seen as constantly contested and seen with suspicion and reduced legitimacy. Ultimately, it is the public that loses out. They are at the center of productivity, creating artifacts, uploading videos, mashups etc. but are unaware of the risks and laws that govern it. A step in the right direction would mean to rethink the system of consultation and make it an on-going process and to combine different principles to achieve the best results.
More specifically, in the absence of public representation the methods chosen for consultation should include:
(i) independent research about how copyright policy is perceived by the public and how Consultation is viewed by them. What aspects of the policy are of interest to them and what areas they want to be involved with?
(ii) listen to public through various mediums including but not limited to opinions on social media, technology, Civil societies/NGOs and online influencers to develop debates
(iii) new deliberative techniques such as townhall meetings to participate in a sustained way to be held regularly (suggested yearly meetings) to stay up to date with changing public opinion.
Dr Edwards reminded us that the research was held on a small scale and the challenge lies in such studies happening on a much larger scale while also taking the political and economic factors into consideration. As she rightly said, “public involvement in copyright cannot be a sickly plaster placed over s deeper democratic wound.” Public involvement is at the very heart of any democratic setup and it is the ethical choice to make.
With Professor Hargreaves taking the screen, the focused perspectives gradually shifted from that of researchers and academics to that of policy participants and reviewers. Pertinently, Professor Hargreaves, who otherwise has had a remarkable career in journalism, headed the commission which submitted its report dated May, 2011, on “how the Intellectual Property framework supports growth and innovation”. The focus of the discourse therefore moved over to practical aspects of consultation and policy formulation. He discussed consultation in a more general manner and observed that a proper structure for such consultation is absent, not just in the field of Copyright but other subjects where it may be helpful. He went on to describe his interactions with the public and while admitting that the approach is not as scientific as the studies that are discussed above, he has had many meaningful conversations, informally, with people who have strong and well-informed views on the subject. He believes that even if there is a proper transparent and well-functioning structure in place, it will always be influenced by the political scenario and expresses his concern over the changes that UK will have to incorporate after Brexit. On Prof. Hargreaves conclusion, Prof. Kretschmer added that Hargreeves Review also played a part in the copyright policy consideration in Brazil.
Aline Iramina took over to share her perspectives from her experience in running public consultations on copyright in Brazil. Aline Iramina, while concurring with the issues highlighted in the said Guest lecturers’ Research, affirmed that the task of making such consultation processes inclusive and transparent is challenging. Aline Iramina cited how only less than 10 contributions, out of the total 250 public contributions, were received from individuals in the case of Brazil public consultation processes for Brazilian copyright reform in 2019. Such numbers manifested the issue of uneven access and disparity in public consultation processes.
She underscored how the changed circumstances, since the time of the said Research in 2016 to Brazil’s said consultation process in 2019 and the implementation of Marrakesh treaty in 2020, led to the growing use of digital tools in public consultation processes. The employment of digital tools made such the consultation process inexpensive and feasible. In 2019, the Brazilian Government ordered release of necessary expenses incurred by third parties for participating in public consultation process related works would be sanctioned only when a video conferencing option was not possible. Such sanctioning process was bureaucratic and therefore limited public participation. It resulted in disproportionate representation of certain groups for it made participation dependent on the availability of financial resources. To conclude, Aline Iramina pointed out that the movement and participation from the civil society in such processes during the pandemic was unprecedented and the same manifested that the digital medium can serve as a potent space to make public consultation processes more inclusive.
Martin Sentlefben, an advisor to the Netherlands Government who had participated in severl initiatives, took over the screen and shared his views from the experience at the interface of academia and policy. He mentioned of the traditional figureheads, such as the creative industries and organized lobby groups, significant to copyright policy debates,. The creators not only desire protection but also a broad distribution of their works. Martin Sentlefben stressed on the growing relevance of the users as the emerging figureheads in the online world and more particularly in the platform industry. Therefore the view of the users has now become essential in shaping the contemporary copyright debates. To illustrate the point Martin Sentlefben shared 2 pictorial slides of protests by German citizens against upload filters employed by online platforms. The banner held by the protestors in the first slide read the three things that people don’t want which was filter coffee, filter cigarettes and upload filters and also that the government should take care of filtering diesel motors and not so much the internet (as translated from German). The second slide voiced the concern that upload filters cannot identify satire to highlight that technological measures are incapable of making any distinction between piracy and parody. Such expressions through protests demonstrated that the users are aware of the interests that are at stake. Eventually the German government responded by assuring the citizens that it would make all endeavours to avoid upload filters in the new legislation. Martin Sentlefben also emphasized on the role of academics in fostering inclusivity in public consultation processes. Translating the technicalities of law and technology into more comprehensible and simpler forms becomes vital in communicating the relevant information to the citizens and therefore further public participation in copyright debates. Often such information is more easily communicated through newspapers articles or other journalistic works. Reaching out to the public representatives in the Parliament, who take the ultimate decisions, have also gone a long way in yielding timely results. In the copyright debate the European Parliament incorporated number of important nuances such as protection of certain user freedoms such as freedom to quote, freedom to parady, freedom to pastiche etc. Martin Sentlefben pointed out that such additions may not have been possible if the legal doctrinal technicalities were not sufficiently and effectively translated and communicated to the public. To conclude, MS expressed his considered view that it is by way of such translation and communication of legal technicalities that the academic world can contribute to the online copyright debates.
In response, Dr. Giles expressed that some of the challenges reflected in the copyright debate are common to the ones face in media policy research.
Dr. Edwards, in response to the issues raised by Arlene and MS as regards the political context of ultimate decisions in matters of policy formulation, agreed to the concerns in the way the public opinion is heard or incorporated. She, however, stressed on the need for a formalized process for bringing the public into the process. Dr. Edwards also responded to the problems relating to evidence that can be accounted with everything else and to incorporate into policy making processes the qualitative evidence gathered during the public consultations. While quantitative evidence is easy to understand access and incorporate, a lot of public input tends to be consisting of the qualitative evidence. Therefore, it is really important to include quantitative evidence in public consultation processes. While agreeing to Arlene’s observations about online-offline changes owing to the pandemic, Dr. Edwards expressed the need for some comparative research work being done that reveal the comparative strengths of online and offline processes. Dr Edwards concurred that the online processes are not only cheaper but they also create opportunities for bringing people together in the same space which is difficult to achieve in a face to face environment.
Dr. Giles Moss added that all such different methods, whether online or offline, have their own values and weaknesses. However, the challenge at a systems level is really to conceive how such methods can complement one another and find an optimal balance that may help in informing a consultation for the purposes sought to be achieved. For the purposes, cost effectiveness or affordability could be a crucial consideration. Dr. Giles Moss shared that often the principles were more like regulative ideals which may otherwise be difficult to achieve in practice. Therefore, the aim should be to make improvements in the areas of concerns. Further, making improvements would involve talking about and reflecting upon the principles and how the consultations are designed. Dr. Giles Moss stressed upon the importance of a ‘consultation about consultation’ and shared that one of his more recent research involved talking to people who participate more regularly in such consultation processes about the aspects of the process that they didn’t really understand.
The last part of the seminar was devoted to answering question submitted by the GU-IP Society students. The first question submitted for Dr. Lee Edwards was- During the course of your research into public engagement did you come across any commonly held copyright misconceptions among the participants? In response, Dr. Lee Edwards shared that the respondents were not completely clued up about copyright and there was rather more uncertainty than misunderstanding. Expert help was made available in the first public consultation event in case people were unsure of things and needed more clarity. Further, in the course of consultation the idea was not to discuss the detailed specifics of copyright law but to encourage the public to talk about copyright that was meaningful to them. They were mostly encouraged to talk about how their experience in copyright was translated in and through policy and therefore how the policy was affecting their lives. In the second event there as a mix of public and stake holders who were well versed in copyright. Nevertheless, to start with, the questions that were pitched to the participants were at a much general level such as who should participate in consultation process followed by the how and why of participation. These questions led to more detailed conversation based on their individual experiences and knowledge. Therefore, in such processes the idea of misunderstandings and misconceptions became less important.
The second question submitted for Ian Hargreaves was- “Do you think that today the public is more interested in copyright since the digital environment enables anybody to create something such as a tik- tok video and meme and what kind of sensibilisation does this more inventive public have?”
Dr Hargreaves referred to the review titled Digital opportunity to point out that the perceptions about copyright in the digital age need to be sorted out. The resistance to Intellectual Property law, more particularly, which attacks or impacts freedom of expression has found expression in many countries. The internet has generated sources of concern. Dr Hargreaves also stressed on the need for a depth of commitment for platform regulation. The younger population that is creatively active on the internet is being encouraged to think about copyright. It may also encourage younger people to expect a return from their creative works in ways the commercial creative organizations do. Such questions are of far-reaching importance and cannot really be allowed to be arbitrated in a narrow and segmented manner. Therefore, the discussions as regards public consultation processes would only get increasingly significant.
The third question submitted for was- Did you find that the public perceptions of copyright were influenced by any legal system in particular or was it from more popular culture? Dr. Ula Frugal highlighted that the public discussions during the implementation process largely take place in the respective native languages of the member countries. There are not only the 24 official languages, but also other languages used in the discussions. Dr. Ula Frugal however pointed out that the legal systems in particular member states influence how the consultations took place. The public consultation in each member state is influenced by the specificities of the legal system or legal administration of the particular country and how the public or the creative sector is represented.
To conclude the lecture Prof. Kretschmer invited comments from the speakers on how a meaningful participation of the public in the next copyright reform can be ensured. Martin Senftleben was of the view that the recent copyright reforms at the EU level may remain for quite a while, however in UK there may be fresh debates to find better solutions. Martin Senftleben expressed that as regards getting the public involved, the process is more or less automatic. More particularly for now the internet makes everyone a contributor and it also becomes a question about user emancipation. However, what it would desirable that there is more positive attitude and more invitations for getting involved. It would be necessary to dispel the existing general impression that such policy debates take place behind closed doors. An increased awareness as regards available avenues of voicing opinions and therefore more would be of great help.
Aline Iramina, speaking more from a governmental perspective, was of the view that the digital technology can help the government in trying to engage more users and the general public to participate in public consultation processes. She also highlighted the concerns regarding accessibility of language in public consultation processes needs to be addressed to ensure more participation.
Prof. Ian Hargreaves was of the considered view that the problem sits knee deep in technology and it would be technology which would enable people to express concerns. Prof. Ian Hargreaves closed his remarks on an optimistic note by observing that though there is a lot to worry about when it comes to internet “but there is a lot more still to rejoice in its existence and its potential for the future”.
Dr. Giles Moss stressed on the significance of clear and accessible language and the value of independent research into public coupled with wide promotions of consultations where media has an important role to play. He also stressed on the need for mini public- citizens panel or citizens assembly sort of forum where inputs are collected after the public has had a sufficient opportunity to reflect in in an informed way. He also suggested further step of going into detailed recommendations which would entail a longer process.
Dr Lee Edward reiterated the importance of embedding things in the political process which would go hand in hand with the proposals which have been offered. Political context is important because the political will for change is critical. Thus, embedding any change in the context of a much stronger political will to recognise and listen to the public assumes significance. Further, endeavors such as translating language or through the use of academic inputs that ensure that people are well informed of what’s going on would ensure meaningful participation.