Improving consultations

Consultations vary from open and general to tightly defined and more specific. Stakeholders stressed the advantages of open consultation, especially at the beginning of a process, where there is an opportunity to influence how an issue is understood: 

When you’re asked very specific questions, they’re not always quite the right questions, or with the right focus, and you can find yourself hemmed in… you’ve got to respond to the question. I know you can’t just open it all up, but I think maybe there should be more consultation before questions are asked so that the questions themselves are more informed and as relevant as they can be. [SH8]

I think if they will say, “We want to do this, what do you think we need to ask about?” Then I think that will be - maybe this should be in the first process, then the second process is to send questions to people. Because I think you will be fascinated that people will ask you to ask very... Some questions that you never thought about. [PU2] 

Some participants talked about the value of consultations on particular aspects of policy: 

In general, I think one could question the wisdom of having overly broad consultations. [...] I think something to the extent of 60 or 80 questions or something, which may be a little bit daunting to people who are not professionals in replying. I think I would probably formulate a preference for somewhat more targeted, somewhat more compact, consultations. [SH21]

Consultation was recognised as valuable at all stages of the policy process, from the initiation to the implementation and evaluation of policy.

[G]ood practice should be, don’t just consult at the start. Consult at the start. Consult as the policy is being not just proposed, but developed into law. Then once the policy becomes law and rolls out, consult on is that working? [SH15] 

Participants talked about the need to include and engage a wider range of stakeholders in consultations.

I guess it would be good to have a needs consultation or a representative organisation for each relevant sector. That is something that has been lacking, I think, in the context of consultations generally. In most meetings I’ve attended, I would say at least 70%, 80% of the people participating were rights holders’ representatives. [SH25]

Consultations should include the public or consumers as copyright users:

Consumers are directly affected by copyright legislation. They should have a voice. In the Hargreaves reforms, for example, one of most controversial issues was the introduction of a private copying exception, the exception that would allow you, for example, to copy on different devices a piece of music you lawfully acquired. That’s a direct interest of the consumers, so they should have a voice. [SH25] 

We see the importance of assessing the impact on users. I know that’s something really hard, but we do feel that, as a company that is obsessed with being user first and understanding what the user wants, that’s not an approach that necessarily I see across government, to be honest.  So, I think that finding ways to engage people who use these products, will listen to the music, buy it, who engage with content or engage with the product [...] their view is important, because they're an important part of the ecosystem. So, finding ways of engaging them is really important. [SH20]

Consultations also need to include public and cultural institutions affected by copyright, as well as new actors such as new types of content creators. 

Strike a balance, so that instead of ticking boxes and saying, “Well, we did a meeting and sent out invitations. Those are the people that showed up and so we’ll just consider those contributions.” Make an additional effort to say, “Well, if for some reason the majority of the participants were only from specific sectors, we now should organise a follow-up meeting and try to balance that representation.” [SH25]

I think that a second type of audience, from a user perspective, is this new type of content creator, which are the YouTube creators, the Instagram creators, the Twitter creators. The creative industry is changing, right? [...] And yet these are audiences that are systematically excluded, because they are new. And I think that is absolutely fair, they are growing. They don’t have the political or policy nous to know how to engage. So, I think that with these types of audiences, with these types of small and medium-sized businesses – because they are businesses, they are creative businesses – it’s worth having a more kind of intentional systematic way of engaging them. [SH20]

To achieve wider engagement, it is important to have a clear and considered plan at the start of the consultation process.

Good promotion is critical to achieving participation. 

I think, when it is a consultation, you would think that would be really, really… I was really puzzled why it wasn’t on their homepage, for example, to just say, “We’re doing this consultation.” Put it up on the top right or the top left, somewhere really obvious, when it was open. It never was. As I say, trying to navigate to find it was impossible. [SH24] 

For some participants, having adequate time was crucial because their submissions were dependent on getting information from members, or having enough time to conduct research.   

It's actually finding out about the consultation, so how can we improve that? How can we disseminate that more widely? What should I be doing to find out more quickly and earlier on, because to develop a good response you need time because you need to go and talk to the members, you need to then synthesise that. [SH28] 

Timing issues also related to avoiding general holiday periods such as Christmas. 

When you get multiple consultations that the same people have to respond to, then that sometimes means that they sacrifice some things. So, you don’t necessarily get the best response. So, the timing around when the consultation takes place, including avoiding somewhere around Christmas and those sorts of things, that’s hugely important. [SH1]

Lack of public understanding can be a barrier to wider engagement, because non-expert stakeholders can only participate in dialogue about it when they have the knowledge to do so.

Making copyright relevant

A number of participants argued that a better understanding of copyright as it is relevant to daily life, could help encourage participation. 

How many of [the public] have got little blogs going or Instagram or whatever, do the photographs belong to them? Don't they belong to them? Give them little case scenarios and then ask questions about it. I think if you just talk about the very dry Copyright Act, they'd go, "What?" But if you then give it to them in a scenario that relates to them and their lifestyle and what they do, they'll go, "Oh, you mean that? ." [SH28] 

I think if you explain it in the right way, in an accessible way, without simplifying necessarily, but making things accessible, we try to make the complexity accessible, then I think most people find it interesting and are keen to participate in debate, because they realise that it is something that affects their everyday life. [SH25] 

Channels of communication

Some participants argued that using different channels of communication could be useful. Relying on text and documents can be problematic and so visual methods, such as video, need to be considered:

If you’ve got poor reading skills, you can’t read, you’ve got another language as your first language, if you’ve got a learning difficulty, or if… Many, many, reasons. […] [Information given to the public by organisations] it’s still just pure writing, therefore it’s a barrier. It’s like an intellectual barrier. [PU5] 

I think broadening the form of the information, the format, that will help, as well. If you had a summary, a video summary of something, that will be even - for me - easier. [PU2] 

Using public bodies and the media to communicate

Participants argued that institutions with an existing broad audience, and particularly public bodies beause of their responsibility for public welfare, were important potential channels for communication about copyright.

I think there is definitely a role for authorities to inform properly.  For me, that's one of the role of public authorities anyway beforehand and during the process, of what is at stake so that the public is better informed and can then decide to join consultation processes. [SH22]

'It’s as if it’s just a very specialist issue that only the people in the know get consulted about. When it’s something that affects everybody on a day-to-day basis, do we need to look at how public education works in other fields? The only one I can think of, really, is things related to health or safety or something. [SH24]  

The media were also a potentially valuable route for communication. 

Let's get a documentary on copyright, the infringement of copyright and how people are being diddled out of money. Let's have some more information about how copyright is being infringed left, right and centre through social media to get people to be more aware of it as a problem. [PU6] 

I think [online platforms] needs to push itself, saying to people, “You need to understand these things,” because [copyright] will benefit some people because some people don’t know and people take advantage of that. [PU2] 

Participants argued that consultations need to be tailored to the group being consulted.

Tailoring questions

One obvious area where targeting could be done better was in the questions that are asked:

For different groups you need to speak through a different voice. So you need to adapt somehow your tone. It’s like a little bit in the research world. When I’m going to a conference, I need to adopt a certain type of language. When I’m going to an exhibition, I definitely need to change the way I approach my public. [PU1] 

What we’ve done in previous times is, when we’ve translated the question, we’ve encouraged people to go, ‘Have a think about this thing that you might have experienced or you might not have experienced,’ and give them almost like a little ‘Have you thought about...?’ [It] Really helps people to go, ‘I have experienced that. I do understand. I do want to contribute. I do care.’ I think that’s solved very much by making the question something that people can actually understand what you’re asking. [SH33] 

Adapting processes

Beyond the questions asked, participants argued that consultations should be designed in ways that work for selected groups most effectively. 

The consultative process could be a lot broader. It could include more stakeholder meetings, more follow-up description of how the results were weighed, who was spoken to, who was brought in as a stakeholder, and I think it wouldn’t be at all harmful for there to be two versions of a consultation – one which is really aimed at the people who are on the ground in the industry, working with copyright all the time, like the CMOs, and also having a platform where users are invited, people on the street, whether that’s an artist or someone who’s using copyright to also have their say.  [SH13] 

Consult with the public on general principles

Because the public might find it difficult to engage with the technical side of copyright, some participants felt that their engagement should focus more on policy values and gauging opinion rather than gathering evidence for policy implementation. 

[T]o expand this out to a broader conversation about how, what are fundamentally the moral lines [...] the kind of, societal judgements that are then made. And those societal judgements do require, a much broader stakeholder, appropriately so. [SH19] 

To widen engagement, participants suggested different methods of consultation, including user panels, online communication, surveys, and qualitative interviews. These would widen the range of evidence being included and give different types of people the opportunity to participate, as long as the methods were used appropriately. 

Approaching people in their own community and environment is also important. 

If the consultation’s delivered in an environment, so small groups where people feel comfortable in voicing either they don’t understand the question or they don’t understand certain elements of what you’re trying to achieve, etc., and you’re able to address that on a very informal basis, then I think that, sort of, breaks down some of the barriers. [PU3]  

I think, beside a direct approach, through communication, emails, adverts, I think using the community also is important. [...] And, to be able to access that community fully, if you use the community, then you are likely to get to benefit more than when it’s just your approached as an individual. If, say, you approach a Muslim person, asking questions, it will be different if you went to a Muslim Centre and say, “Imam So-and-so, we have this question, can you take this question to your people?” Their answers will be different because they will feel like, “We’re answering this within the community.” [PU2] 

Participants felt strongly that consultations could be improved by ensuring they include follow up processes that communicate outcomes to contributors. This would ensure that people felt their views have been heard, even if they don't explore the outcomes in detail.

Connecting to policy outcomes

Stakeholders should be clear about the consultation's  purpose and the links between their contributions and policy outcomes. 

Like I said, involvement is really a key action. Not just having the event and then leaving people in the dark a bit. Keeping people up to date with what’s going on right up until the end of the process. [PU8]

In terms of the follow-up to the consultation, there needs to be a sense that the respondees have been listened to, that a report has been written up which clearly takes account of what’s been said, because that’s an impact on how people are going to respond to these things in the future.  If there’s always a sense that these are just a tick-box exercise then that damages people’s faith in the consultation process as a whole. So I think having a response afterwards which actually takes account of what people have said is really important. [SH14]

Connecting with the broader political process

Part of the follow-up process should also include explaining the broader political context for decisions. 

I think what needs to be clearer are not the very basic levels of policy decision making, but like a little bit more the levels that are somehow higher up where the important decisions are taken. So to let people know how certain aspects are decided upon of policies, and who has a voice in it and how it came to that policy; who was the contributor and so on. [PU1] 

Improving government understanding

Better connections between consultations and policy outcomes could also be achieved by educating ministers and politicians about copyright. 

It would be advisable to involve ministers in the detail early on. When I worked at a successful multinational I found that with projects – and legislation is essentially a project – it was essential to get stakeholders round the table at the start, so you can identify everybody's expectations and needs and a possible timeframe. This approach could usefully be set out in a good regulation guide. [SH6] 

It would be helpful, probably, as those proposals come out for politicians not only to understand more about copyright, but the different views that exist within the copyright industries. [SH15] 

Because opportunities for dialogue are important to good consultations, participants suggested that face-to-face discussion with stakeholders should be introduced, at points where this does not happen currently. Online tools could also be useful if they were designed to encourage debate and deliberation.

So for me good governance involves a written consultation followed by oral discussions, all as part of a plan that those concerned are aware of. [SH6]

Benefits of dialogue

The aim is to ensure the benefits of dialogue are realised, not just to bring people together for the sake of it. 

Although I think I'm uncomfortable having the two different parties in the room, actually getting them in a room and discussing it is a good way. Just via writing is not good enough. It allows people to read things into it, get argumentative. If you're face to face with somebody, you can challenge, you can query, you can clarify. I think that's far more important. It also reminds you that they're all human beings and that most of them really are starting off in a good place so empathy and walking in their shoes. Of course rights holders want to protect but there is such a thing as overprotection. But also there are things like under protection. How do you get that balance right? That is through dialogue. [SH28] 

[T]here’s no one solution to everything. I do think openness, transparency, and really trying to get to the bottom of what people think, and why they think that [is important], and giving people the feeling that what they’re saying is being listened to, is being well balanced, against others.’ [SH8] 

As well as allowing people to challenge other perspectives, dialogue can also help to moderate extreme viewpoints, change perspectives, and (most ambitiously) forge consensus (although consensus was not always possible or even necessary).

When organising a project like legislation the interests often want to come to see you separately, but I have found that it can be better to have them together so they all appreciate the views of the others and gain a more realistic appreciation of what might be possible. They need to see that what they want is not possible in full and hear the other side’s arguments. This is quite a challenge for the chair. Change can hurt people but this sort of informed debate helps to identify and limit damage. [SH6]  

People can be confronted with things that they haven’t thought of before maybe. 'Oh, that’s an interesting point, I hadn’t thought of that'. So, it maybe can temper other people’s views that might be a bit more extreme, perhaps? So, to modify the discussions that bring it more to a consensus, to use that word again. [PU4] 

Participants felt that quantitative data, which tends to be emphasised in consultations, cannot capture the whole picture and that there is a need to broaden the knowledge and evidence considered in consultations. Independent research was essential for people to trust the consultation process. 

Relatedly, some participants felt there was a case for levelling the playing field between those who had lots of resources to provide evidence, and those who didn't. 

Actually, provide more support and infrastructure to those that are less resourced and funded, so that they have an equal footing. [SH15]

I also think that the authorities should think of supporting non-commercial organisations, public organisations, social society in some way, to involve them in the process because they are long processes, they are quite intensive sometimes. They can be quite costly. [...] So, I think that the public authorities could at least say, "Look, we are going to fund you at least to do research, to do some advocacy, etc. on behalf of the public authority," because it is in the end, the users are part of the public more than the industry. That balance should be a bit more… the public should think of counterbalancing the resources a little bit. [SH22] 

Many participants recognised the importance of transparency and the need to extend it, given that it is not always achieved. 

Those kinds of reports, like the government do, responses to consultations, that’s a very healthy step, if we’re going straight into policy-making. Regulators don’t always do that. And it could be something that they do more systematically. [SH20] 

Areas to improve transparency

Participants' comments showed that more transparency was needed throughout the process, including about: who is influencing the consultation process; 

So, I do think that it should be very transparent, who’s meeting who, when they’re going in, how many times somebody goes in to try and get involved. I think it needs to be transparent. [SH31] 

how evidence is being used;

Are all these responses sitting in an email box somewhere being discounted or are they being read one by one? Are each of these people being contacted again? I just have no idea, and that’s something I want to know more about. [SH13] 

the nature of decision-making; 

I think what needs to be clearer are not the very basic levels of policy decision making, but like a little bit more the levels that are somehow higher up where the important decisions are taken. So to let people know how certain aspects are decided upon of policies, and who has a voice in it and how it came to that policy; who was the contributor and so on. [PU1] 

and links to outcomes: 

I think what we just talked about in terms of having a report and final response at the end which demonstrated very clearly that submissions had been read and taken into account or opposing views have been considered. I think that goes some way towards giving people faith in the consultation process. [SH14] 

Strategies for improving transparency

Participants proposed a range of strategies for improving transparency. They included: regular contact through the process; 

I would just say, as far as possible, just try and contact them at relevant points in the development process and say, “This is what we’ve done so far, in relation to your answers, this is how we’ve used your answers, so far, and this maybe is the next stage that we’re going to.” [PU7] 

using different types of communication to communicate about the process;

I could get a white paper from the government and just read it and say, “Blah, blah, blah.” But don’t assume that everybody can absorb that or actually understand it. You can’t make assumptions. Even do it in a way that maybe you could do like memory maps, or bubbles, where you can click on something and that will tell you some of the changes, how you’ve contributed and what your views were and you can take a data sample. I’m not being patronising, I’m not saying there’s stupid people, because I do law, I’m not an avid reader, I hate reading. I like reading small, tiny books [….] Develop a PowerPoint slide and then you could click on one bubble and it can talk about some of the input of different people and how your group, you could show the groups, how those groups relate to policy making. What are those things and how it is going to affect wider society? Stuff like that, make people start thinking, “Okay, I played a part in this.” They want to feel empowered, inclusion [...] Absolutely, they’ve got to feel included. [PU10] 

transparency among stakeholders about funding; 

If they’re being funded by someone to do something, that should be transparent. [...]  I think funding has become relevant, because of what happened with the recent European Copyright Directive. It was very clear that the platforms had immense wealth and might… whereas the creative industries don’t have anything like the same funding and backing. [...] There just needs to be transparency all round, so that policy makers can see, and accord weight appropriately.’ [SH8] 

If you're going to have people lobbying and saying, "We want this," it should be transparent as to why they're arguing it and from the background that they're arguing it. [SH9]