Current processes for consultation

For most participants, consultations were clearly understood as an ongoing process, rather than one-off events. Formal consultations, where the IPO sends out a request for responses, represent a later stage in the process, and are usually preceded and followed by less formal discussions, including workshops, roundtables, and one-to-one discussions. These formal and informal elements took place in the context of ongoing relationships between different stakeholders and the IPO.

[F]ormal ones would be the regulatory authority publishes a paper that they want to consult on, with clear questions, with a deadline, with a clear way of submitting views, that is either in a written or in a face-to-face form. I think that’s what we call formal. On the informal one, maybe the policy they're consulting on is still a work in progress, it’s not exactly written up, maybe the questions are a little more fluid, so it’s better to consult in a more one-to-one basis or in a round table, as the position is- Maybe, as they're moving forward, going into a formal consultation, but before that process is ready. [SH20]

The less formal discussions were valuable because they allowed some stakeholders to influence the types of questions being asked, and to help consultation leaders frame questions in a way that would make sense to the targeted audience. On the other hand, they also allowed members of the IPO to discuss the types of evidence  required, and to ensure that stakeholders did not waste time producing information that would not ultimately be useful. 

When we are developing policy, ideally, we use as many avenues as possible, to get as many voices into the conversation. For me, the consultation is kind of the formal end of it, and actually, we should have used other things to help us work through what questions we need to ask in the consultation. [SH1]

I think there is something about really understanding the issue by starting the dialogue with a wide range of stakeholders before you assume you know what the consultation is necessarily about, because it might not be the right question. [SH15]

Participants generally felt that stakeholders were treated somewhat differently at different stages of the consultation process. Those stakeholders who had pre-existing relationships, material and discursive resources (see Context for consultations), and/or could provide the type of quantifiable evidence that was often requested, were likely to be included more often in both formal and informal parts of the consultation process. Their voices were seen to be valued more by consultation leaders. In turn, this meant that stakeholders from civil society, or those who had fewer resources available, were seen to be disadvantaged. 

In a policy field like copyright - where it’s about balancing economic interests and economic rights of creators, and certain types of intermediaries and rights holders, with more abstract fundamental rights of creators or, also, rights about access to culture, which are not as easily expressed in economic terms - there tends to be, among policymakers, a tendency to attribute more importance to those people who can make some claim to economic might or economic impact. […] That tends to disfavour the softer sides of the spectrum like civil society, not-for-profit organisations. [SH21]

They may not necessarily pay attention to you specifically if you don’t have the evidence to back it up. If you don’t come out with the specifics, you know, “98% of content is infringed.” If you can’t provide that with the scale of that impact, they don’t necessarily take it as a seriously. You are able to feed back, but you are not always taken as seriously as you would do as a different industry member, who is extremely well resourced and can say, “These are our stats. These are our figures.” [SH16]

There was general agreement that multiple sources of evidence, and different methods of gathering evidence, were important for good consultations. 

[Good] contributions shouldn’t be based on anecdotes or pure opinion and views, but on actual evidence. I guess any independent empirical studies that would be evidence, rather than biased pieces of research that try to demonstrate a predetermined position. [SH25]

Some participants expressed concern about the validity and availability of some evidence sources, particularly when it was 'owned' by commercial companies. 

It is absolutely right policies should be evidence based, but sometimes the evidence you want to base your policy on either doesn’t exist or can't be shared. Not least because we can't ask our companies for it, because it’s information about contracts that we should not know about. [SH30]

There is not enough independent evidence on anything to do with copyright because the data is in the hands of commercial companies that have a commercial interest. [SH23]

If it is a form response with no evidence or anything in it, then they can’t carry any weight, because they have nothing in it to demonstrate… they’ve just copied this thing that has been put out. So, I would agree that quantity isn’t everything. It’s the quality of the responses, it’s the evidence that’s provided, to say… to demonstrate that this particular thing is not working, or if you do X it will have this impact etc. Those are the things that really make the difference. [SH1] 

There was also a desire to better understand how different types of evidence (e.g. quantitative and qualitative) were valued and used in consultation processes. However, questions then arose about how the public could contribute and how evidence relating to aggregate effects could be taken into account.

It is much harder to effectively advocate something if the consequences are distributed equally across a large number of recipients who are minimally impacted and it adds up to a lot. Whereas if the harm or benefit is very concentrated in a small number of entities [it is easier to quantify]. [SH21]

Concerns about how evidence was used were also reflected in general uncertainty about how consultation responses were analysed, and how decisions were finally arrived at. Some participants felt that more transparency was required, and that political processes of policy-making could ultimately undermine the consultation outcomes. 

I have no idea how they balance it. Sometimes I’ve heard ministers say, “ it’s the numbers of submissions that matter”, without really looking at actually who is making the submission, who is supporting that submission, and giving that due weight against others. I don’t know how that works, I just don’t know. [SH8]

You think, “Oh, the IPO have run a stellar consultation process. They have listened to everyone and produced a really balanced proposal.” It will go into committee. The big lobbying interests, whether it be the tech sets or the labels will change it for their interests. They’ll get MPs on side. All those other voices, the general public, the artist’s representatives, won’t be able to be there. Then what you end up with is not this great best practice piece of legislation. [SH15]

Other participants recognised that although complete transparency about the process was important, it was not always possible. 

The process of actually publishing the government findings from a consultation is incredibly good. We do need to see the summaries and why people have asked for different things, and that helps support the policy decision. As long as that is done in an open and transparent way, people, generally, can accept, "Okay, we've lost that battle, but we haven't necessarily lost the war," if you've got very strong feelings about a particular thing. [SH9]

It’s about being open, it’s being honest, it’s about being as transparent as possible. Recognising that there are some things that… we aren’t allowed to share [...] but we can certainly say, “Look, we took advice on X and Y, we also looked at this, and we looked at that” etc. We can talk about those things, but it isn’t always possible for us to actually hand some of that out. [SH1]