Copyright for a digital age

A rethinking of intellectual property law is long overdue.

We live in a digital age and therefore we should have a fully functioning knowledge-based economy. Why then do we remain saddled with a copyright framework more suited to the 19th century than the 21st?

At the British Library we estimate that by 2020 75 per cent of all books and journals will be published in digital form.  Add to that the exponential growth of the internet and the explosion of mobile technology, and we see that the world is a dramatically different place to the 1980s (the era of the Betamax and personal cassette recorder) when the last major change to copyright legislation took place. 

If through modernising UK copyright law, barriers preventing lawful digital access to a wide range of information can be lowered, UK researchers will have a new world of resources opened up to them, and the speed of discoveries and innovation will be accelerated. For example Japanese and American researchers – industrial or academic – can "mine" information lawfully from the internet and scientific journals there, but in spite of the explosion in “big data” in the UK we cannot. 

Previous governments over the past decade failed to cover themselves in glory when it came to updating UK copyright law. We had four reviews in six years and very little progress since. It is in this context that the efforts of the current government should be applauded. Last year’s Hargreaves review of intellectual property and growth, commissioned by the prime minister, has provided a roadmap for updating the UK’s outdated copyright laws.  As a package, it aims to make the most of new opportunities provided by technological advancements.

The Library recognises that many groups have a stake in this debate: from authors and publishers to the creative industries, higher education and the general taxpaying public.  Copyright reform is clearly an issue with many dimensions and many competing views. Yet it must reflect the realities of the day and we believe the benefits of reform would serve the widest interests of society and enable growth.

The British Library is looking at ways not only to increase access to our 20th-century collections, but also increase access in a way that meets the demands of 21st-century users.  Digitisation therefore plays a massive part in the Library’s current thinking.

However while the National Library of Norway is making all 20th-century Norwegian publications available online, and in France similar moves are afoot, due to UK copyright law this sort of ambition is impossible for the UK research sector in 2012. The need to get permission item by item (taking on average 4 hours per book) means that it would take a digitisation project of 500,000 items over a thousand years of rights clearance work. Even at the end of this we estimate over 40 per cent of the works would be “orphan”, that is to say the rightsholder would not have been identified or located.

Parliament is currently considering the Enterprise and Regulatory Reform Bill, which goes some way towards implementing Professor Hargreaves’s recommendations. This includes licensing of orphan works and also introduces Extended Collective Licensing – a way of streamlining rights clearance en masse and a decades old feature of Scandinavian copyright regimes. Both these things are also currently being consulted on by the US Copyright Office. 

The Library has been supporting the legislation with one minor proviso: that in the case of orphan works, we can provide payment to rightsholders if and when they appear, rather than handing money over in advance to a governmental fund that will only rarely be used. 

All this adds up to very good news. It proposes a way forward that clears the path for mass digitisation while providing safeguards and guaranteeing remuneration for copyright holders. 

The government has also promised a future announcement on updating copyright limitations and exceptions – which in the UK are far behind those of other developed nations.  For example, copying sound recordings and film for personal research or preservation reasons is currently not permitted.  Additionally, in the age of “Big Data”, allowing text mining of information you have bought or have legal access to would be hugely beneficial to the research and technology sectors, improving Britain’s international competitiveness greatly.

The Library is hopeful for progress but past experience of delays and derailments means our optimism remains cautious.  By keeping this round of copyright reform alive – and with the level of ambition imagined in Hargreaves – the government could truly unleash the potential of discovery, innovation and growth for everyone.

Benjamin White is head of intellectual property at the British Library.

A young woman reading an e-book (Photograph: Getty Images)
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The Jewish lawyers who reinvented justice

Two new books explore the trials of Nazis – and asks how they changed our conception of justice.

In August 1942, Hans Frank, Hitler’s lawyer and governor general of occupied Poland, arrived in Lvov. “We knew that his visit did not bode well,” a Jewish resident later recalled. That month, writes Philippe Sands, Frank gave a lecture in a university building “in which he announced the extermination of the city’s Jews”.

Frank and other leading Nazis were tried at Nuremberg after the war. It was, writes Sands, “the first time in human history that the leaders of a state were put on trial before an international court for crimes against
humanity and genocide, two new crimes”.

For Sands, this is the story of some of the great humanitarian ideas of the 20th century. A T Williams, however, is more sceptical. For him, the search for justice after 1945 was a wasted opportunity. “It began,” he writes, “as a romantic gesture. And like any romance and like any gesture, the gloss of virtue soon fell away to reveal a hard, pragmatic undercoat.” Did the trials of 1945 and beyond provide any justice to the victims? How many more deaths and tortures were ignored and how many perpetrators escaped?

Together these books ask important questions. Were the trials and the new legal ideas – international human rights, war crimes, genocide – among the crowning achievements of our time, the foundations of how we think about justice today? Or were they, as Williams concludes, “an impersonal and imperfect reaction to human cruelty and human suffering”?

Williams won the Orwell Prize for political writing in 2013 for A Very British Killing: the Death of Baha Mousa. His new book reads as if it were several works in one. Each chapter begins with the author visiting the remains of a different Nazi concentration camp – intriguing travelogues that might have made a fascinating book in their own right. He then looks at what happened in these camps (some familiar, such as Buchenwald and Dachau; others barely known, such as Neuengamme and Neustadt). The single reference to Nikolaus Wachsmann’s KL: a History of the Nazi Concentration Camps, published last year, suggests that it came out too late for Williams to use.

A Passing Fury starts with an atrocity at Neuengamme, near Hamburg, where, in the last days of the war, the concentration camp’s inmates were put to sea by Nazis in the knowledge that they would almost certainly be killed by Allied bombers. Williams buys a pamphlet at the visitors’ centre on the site of the camp. It informs him: “Almost 7,000 prisoners were either killed in the flames, drowned or were shot trying to save their lives.” His interest in the subsequent trial leads him to look at other Nazi trials after the war. His central argument is that these were not a victory for rational and civilised behaviour – the widespread assumption that they were, he writes, is simply a myth.

Williams has plenty of insights and is especially good on the Allies’ lack of manpower and resources in 1945. There was also enormous pressure on the prosecutors to gather information and go to trial within a few months. The obstacles they faced were huge. How to find witnesses and make sure that they stayed for the trials, months later, when they were desperate to be reunited with their families or to find safety in Palestine or the US?

The lawyers also felt that they were “operating in a legal void”. These crimes were unprecedented. What should the SS men and women be charged with? “They needed new terms,” writes Williams, “a completely fresh language to express the enormity of all that they were hearing.” This is exactly what the Jewish lawyers Hersch Lauterpacht and Raphael Lemkin, who play major roles in Sands’s book, were providing – but they are almost completely absent here.

Williams is also troubled by what he sees as flaws in the British legal system. Defence lawyers focused ruthlessly on the inconsistencies of witnesses, forcing them to recall the most terrible ordeals. One particularly devastating account of a cross-examination raises questions about the humanity of the process. The disturbing statements of British lawyers make one wonder about their assumptions about Jews and other camp inmates. “The type of internee who came to these concentration camps was a very low type,” said Major Thomas Winwood, defending the accused in the Bergen-Belsen trial. “I would go so far as to say that by the time we got to Auschwitz and Belsen, the vast majority of the inhabitants of the concentration camps were the dregs of the ghettoes of middle Europe.”

Williams has put together an original polemic against our assumptions about these trials, including those at Nuremberg. Sands, a leading lawyer in the field of war crimes and crimes against humanity, presents a completely different view of Nuremberg and the revolution in justice it introduced. His is a story of heroes and loss.

Lvov is at the heart of Sands’s book. Now in Ukraine, the city changed hands (and names) eight times between 1914 and 1945 – it is known today as Lviv. This is where his grandfather Leon Buchholz was born in 1904. Leon had over 70 relatives. He was the only one to survive the Holocaust.

In 1915, Hersch Lauterpacht came to Lvov to study law. He became one of the great figures in international law, “a father of the modern human rights movement”. Six years later, in 1921, Raphael Lemkin also began his law studies in Lvov; in 1944, he coined the term “genocide” in his book Axis Rule in Occupied Europe.

Both Lauterpacht and Lemkin, like Leon, lost members of their family during the Nazi occupation of Poland. Sands interweaves the stories of these three Jews and how their lives and their ideas were affected by what happened in Lvov. This is an important question. We forget how many of the greatest films, works and ideas of the postwar period were profoundly affected by displacement and loss.

East West Street is an outstanding book. It is a moving history of Sands’s family and especially his grandparents but, at times, it reads like a detective story, as the author tries to find out what happened to his relatives, tracking down figures such as “Miss Tilney of Norwich”, “the Man in a Bow Tie” and “the Child Who Stands Alone” – all involved in some way in a mystery surrounding the author’s mother and her escape from pre-war Vienna. But Sands’s greatest achievement is the way he moves between this family story and the lives of Lauterpacht and Lemkin and how he brings their complex work to life.

There is a crucial fourth figure: Hans Frank, the Nazi lawyer who was responsible for the murder of millions. Sands uses his story to focus his account of Nazi war crimes. Frank was brought to justice at Nuremberg, where Lauterpacht and Lemkin were creating a revolution in international law. Lauterpacht’s emphasis was on individual rights, Lemkin’s on crimes against the group.

This is the best kind of intellectual history. Sands puts the ideas of Lemkin and Lauterpacht in context and shows how they still resonate today, influencing Tony Blair, David Cameron and Barack Obama. When we think of the atrocities committed by Slobodan Milosevic or Bashar al-Assad, it is the ideas of these two Jewish refugees we turn to. Sands shows us in a clear, astonishing story where they came from. 

This article first appeared in the 19 May 2016 issue of the New Statesman, The Great Huckster