Context for consultations

Political structures and priorities influence consultation practices and potential policy outcomes. Existing structures were generally felt to limit the scope of consultations and the level of inclusion, particularly of the public. Key issues were:

Existing priorities

Consultation outcomes can be ignored or rejected outright if politicians already have a position on an issue. In such cases, consultations might only be symbolic, with questions structured to match existing priorities or objectives. Formal evidence gathered through consultations may be overruled as a result of informal influence on politicians by stakeholders who have access to them outside the consultation process.  

The minister says they want to do something, because they’ve had a conversation. You have to do it, and then you say, “We’ve got to do a consultation process.” “Well, get it out immediately, keep it as short as possible. Write down a shortlist of the questions and then tell people to fill them in.” [SH15]

Some respondents felt that there was an over-emphasis on technological solutions for copyright and that this limited the scope of consultation outcomes.

Staffing and expertise

Some participants noted that civil servants sometimes move between departments, which means they are not accountable for their actions in relation to consultations. When people moved frequently, it was difficult to establish and maintain good relationships, and there was a loss of internal knowledge and expertise in the complex area of copyright.

I think the reality is that when we/lobbyists were working with civil servants who had dealt with the subject on a detailed basis [over a long term in one post within the IPO], there was a greater confidence about guidance of policy within the IPO itself. [SH9]

This was particularly important, because copyright was not very well-understood by MPs generally and so experts in the civil service were essential to ensure an effective and considered policy-making process. 

The number of MPs who are engaged with IP issues and really understand the details is relatively small, which is fair enough. We're not critical of that. So therefore, the role of the committees within the House of Commons and the House of Lords, in analysing these things, and actual experts looking at the detail, and raising questions to provide probing analysis of some of the things coming out of the IPO on behalf of government, is very, very important.’ [SH9]

Participants argued that stakeholders in the copyright debate tended to take opposing positions, and that there was very little compromise between groups. There was a lack of engagement and dialogue, which did not help the situation. The division between groups also characterised the structure of consultation processes.    

Stakeholder divisions

Participants noted that the copyright debate was described in terms of a battle, or war, between different groups. There was a tendency to approach it as a win-lose discussion, which made compromise difficult. 

‘[There] are two very opposing views that people are very entrenched in. There is very little movement, I think, on either side. The people who are on the industry side are very dismissive of the whole open movement. The people on the open movement are very dismissive of the fact that these people want to make money and turn it into an industry. I suppose what we need is for it to be more apparent that it’s a spectrum and that there is a lot of space in the middle […]. It does feel to me that having two extremes isn’t very helpful because all they do is fire shots across the, whatever you call it, trenches at each other or something. They just don’t really listen to each other.’ [SH24]

Some participants suggested that extreme positions meant that the reality that many people rely on copyright to make a living could be lost in the debate.

For people who work in the creative industries, this is their livelihood. It’s not that they’ve made an ideological choice in the same way. [SH24]

Inevitably, within intellectual property, there are going to be tensions between users, between sectors, and between new, complex copyright users coming in at a higher level as we get more and more digitised. […] but doesn't alter the fact that, in the end, an original writer or photographer, or whoever, is in that field and needs to make a living. [SH9]

Lack of understanding and engagement

The divide between stakeholder positions results in a lack of engagement between people with different views about copyright. In turn, this leads to discussions being dominated by a few opposing voices, and a lack of general understanding about the complexity of the debate and the different ways that copyright is prioritised and used. This is made worse by the complexity of copyright law, and the increasingly complicated technological context for copyright. It makes it more difficult to find common ground that all stakeholders might be able to agree on.

Some participants felt that the lack of common ground is echoed in consultation structures. 

So, the current system [is] where a set of questions goes out and, you know, lawyers or policy people within those groups or organisations then feverishly write a sort of long response, giving lots of evidence as to why they’re right and the other side is wrong. [...] [It] doesn’t help, it doesn’t get us beyond that, and I think it does stop you listening. [SH27]

Participants recognised that the ability to have a voice in the copyright debate, and to participate effectively in consultations, was dependent on different kinds of resources. Most important were time, technology, and access to legal or industry expertise. In general, larger organisations had more resources, which meant that they were able to influence and participate in  consultation processes both formally and informally.

[F]rom our point of view, we know what government consultations look like and feel like and there is a way that they do them. [...] So, I think we work around some of the formalities, I suppose, in some ways, because we can understand what they’re trying to get at or what they’re trying to do.’ [SH30]

Small and medium-sized organisations and individuals had less access to these things. This meant they were less able to build relationships with government and policymakers, to provide the kinds of evidence that cosultations required, or to informally influence the agenda for copyright policy. Moreover, deciding to take part in a consultation meant they had to give up time that could be spent earning money.

[Individual artists] struggle to make a living and then they are being asked to defend their rights by producing evidence to respond to a consultation, and whose evidence may be taken into account or not, so I think that’s a cost benefit analysis on their part. [SH13]

I think on some issues I’ve just got to the stage where it’s thinking, “Is it actually worth spending all the time doing this, where we will only end up sending it to [our industry association], maybe we’ll send up sending it separately to government, but we don’t actually achieve anything?” It’s then, “Pick your battles. Where can we achieve something?” As opposed to spending hours where we can’t. [SH15]

Membership associations played an important role here, as organisations who could represent a group of stakeholders who would otherwise find it difficult to participate in consultations.

Participants recognised that consultations were quite a specialised activity, and that not everyone was familiar with how to understand or engage with consultation processes, even if they had a lot of experience of using copyright in practice.

They’re generally very difficult to grasp by practitioners […] The actual people, who have the experiences in this, are, most of the time, the least equipped to respond to these consultations. [SH21]

Language played a key role here, including the ability to understand specialist 'jargon', to deal with large and complex documents, and to feel comfortable engaging with experts in the context of focus groups or informal meetings. 

[The rightsholders] came out with some key points but as it was my first ever consultation roundtable, I wasn't quick enough on my feet to ask follow-up questions. In fact I didn't even know whether I was allowed to so I had no ground rules for the roundtable. [SH28]

Safeguards, backstop, orphan copyright parameters, legislation - for a creative person it’s not really that engaging. For someone… After three lines, it’s just a mechanical string of words really. That’s just the first… that’s the summary. [PU5]

Have you read the [European Copyright] Directive? I mean, you have to be from a different planet to understand what they're saying. [SH22]

Many participants commented on the fact that the copyright debate tended to be dominated by a few global industries and technology companies. This meant that it was debated by stakeholders who were also competitors with each other - and this limited the openness of discussions as well as the potential for change. The importance of copyright was often related to the survival of creative industries, and to the health of the national economy.

[T]he inertia is going to be towards the status quo. If you have all the people from the status quo coming and tell you that the UK as a central place in the world for creative industries, is going to disappear, then you're going to listen to them. [...] The music industry uses that, but also UK policymakers believe that. They believe that, without copyright, UK music would not be where it is and would not have such a global cultural projection and would lessen the country as a whole. So it's complicated, I think [SH23]

The rapid changes in technology and new contexts for applying copyright were also recognised as an important challenge for consultations that were attempting to identify sensible policy options. 

The challenge with the tech sector is that what we’re now looking to regulate is not traditionally regulated space. And the structures around which we’re engaging, they haven’t, they weren’t designed, weren’t built for this. [...] maybe in twenty years’ time, when those new structures are in place, it will be a different conversation. [SH19]

In this context, balancing interests through the consultation process was important. 

The question is, who is actually driving the social change? If companies are driving the social change at the expense of individual creators, then it might be perceived, by a government, that the economic benefits from this social change are good for the economy. But actually, the social change is economic benefit for some companies over other companies.  So the consultation needs to get through that, and be able to analyse, "Well, what is the greatest economic benefit, longer term, against the policy decisions being made?" [SH9]