If you're a 'legal eagle', you may remember from law school 'the man on the clapham omnibus'. He's the quintessential reasonable person who pops up in the law of tort. In cases about negligence, the Court uses his (or her) imagined opinion to decide whether a duty of care is owed in a particular situation.
In digital copyright, we've moved from the person on the bus to the 'lawful user'. With digital transmission of copyright works, this person is becoming really important in copyright but there's an element of mystery about their identity. Like everything about the 'digital shift', it's taking time for the clouds to lift but they will.
Let me give you a couple of examples. The proposed new exception to UK copyright for data analysis for non-commercial research applies where a person has "lawful access" to a work. The proposed private copying exception allows an individual who has "lawfully acquired" a copyright work to make a further copy for private use.
In the Supreme Court's decision earlier this year in the so-called Meltwater case, the Court decided that making temporary copies of a work in a user's browser to view a work on screen (but not to download or print) fell within the exception to copyright law which was introduced under the Copyright Directive (2001/29/EC) to exempt temporary electronic copies of works made to enable "efficient transmission in an network" (e.g. cached copies) or a "lawful use" of work.
So what is "lawful" in the access or use of a copyright work? The Copyright Directive said that a use should be considered "lawful" where (1) it is authorised by the right holder or (2) the use is not restricted by law. (1) is easy. If the right holder has granted a licence to allow the use, then it's clearly "lawful". The difficulty arises in circumstances where there's no authorisation by the right holder but the use falls within the scope of copyright. Here the issue turns on whether the use is "restricted by law".
In Football Association Premier League cases in 2011, the European Court of Justice analysed the position regarding the unauthorised viewing of football games in UK pubs using a satellite decoder purchased from Greece. The ECJ said that as the reception of a broadcast and their visual display on a screen in a pub - a "private circle" -was not restricted by copyright, the use was lawful. So the fact that the use fell outside the ambit of copyright meant that it was not a use was not restricted by copyright. As such, the issue of authorisation did not arise.
But what about the situation where (1) the work is not authorised but (2) its use falls within the scope of copyright e.g. making an on-screen copy? Here, the issue of whether the use is lawful will depend on whether the use is covered by an exception. But as we've seen from the forthcoming UK copyright exceptions, they only apply where the use is lawful or the copy has been lawfully acquired.
Clear as mud? In a situation where a work has been licensed for use A, and the user then seeks to use it for use B which is not expressly licensed but is covered by a copyright exception, it's clear that use B is "not restricted". But where the work has not been licensed at all, it's not so clear.
The conclusion I draw is that authorisation through licences is the right route. Well drawn licences will be "exception+". In other words, the scope of the licences will cover acts which require authorisation and those which are not restricted because they fall within an exception. In the digital world, attaching and communicating permissions is essential.
Have a good week and, if your vacation is soon, enjoy!