Copyright exceptions - beware the law of unintended consequences

Dear reader

You'll recall that Professor Hargreaves' Review recommended two areas for change - copyright licensing and copyright exceptions. On licensing, there are the proposed schemes for orphan works licensing  and  extended collective licensing (ECL), the framework for which is in the Enterprise & Regulatory Reform Act 2013.  This isn't likely to be before 2014. The Govermnent  has published a FactSheet here.

But the process of overhauling copyright exceptions in the UK's Copyright, Designs & Patents Act, which started with implementation of the EC Copyright Directive of 2000, temporarily gathered - then lost - momentum with the 2006 Gowers Review, re-started with the 2011 Hargreaves Review is now once again on the move. On June 7, the IPO published the first pieces of draft secondary legislation for technical review until July 17 - not long!. They deal with exceptions for private copying, parody, quotation and public administration. The draft legislation can be found here. Draft legislation for  the remaining exceptions will follow shortly.

In 'Modernising Copyright', its response to the Hargreaves Review, the Government accepted Hargreaves' proposals to update copyright exceptions in nine areas - private copying, education, quotation, text and data mining, parody, research and private study, disabilities, preservation and public administration and reporting.

Whilst updating certain copyright exceptions may make sense, the devil is in the detail. What makes the stakes so high is that the 'digital shift' means a move from the sale of physical product, including creative content on fixed digital media like DVSs, to the grant of a licence. There is no exchange of physical goods in a streamed or rental service. So great care has to to be taken to avoid the law of unintended consequences with copyright exceptions because they remove the need for a licence to do the things they cover. 

I've got the following immediate reactions to the drafts.

My first comment arises from the piecemeal publication of the draft legislation. It's clear that the Government wants to avoid a 'domino' effect i.e. if the Government published all the changes in a single statutory instrument, all of them could fall if the consultation shows that they got the drafting wrong on just one. So they're dealing with each exception on a case by case basis, each with their own statutory instrument. That approach is understandable. But that makes the consultation really difficult if they're not all published at the same time. For instance, to get the full picture, I want to have the proposed changes for research and private study, quotation text and data mining and parody 'side by side' so that I can see their combined effect.

My second comment relates to the issue of 'contract override'. The proposed exceptions for parody, private copying and quotations all contain a provision which would make unenforceable any provision in a contract which purported to prevent or restrict the doing of something which is permitted under the exception. On the face of it, it is a reasonable proposition to say that if a particular use of a copyright work is permitted under an exception, a term in a contract (e.g. between a content provider and a user), should not be able to take away from the consumer what the law has said that he or she may lawfully do.

But beware the law of unintended consequences. Take the proposed new exception which will allow use of a quotation from a work providing (amongst other conditions) it is 'fair dealing'. This exception is not a binary "yes it's ok" "no it isn't" choice. Fair dealing imports tests about the extent of use that's been made, whether it's for a rival or competitive purpose and about proportionality. So a contract term won't be written to say "you - the user - can't use quotations" but it is likely to set out what the provider regards as reasonable and what is not. So this 'contract override' does not create contractual certainty. If anything, it muddies the water. And does it really give the user/consumer added protection? I'm not sure that it does. I think the practical solution, which is one that I think industry shares, is to develop the right licensing solutions which accomodate exceptions i.e. are 'exceptions +'. So I'm not convinced on this change.

My third point relates to 'lawful copies'. The notion that the exercise of copyright exceptions applies only to copies etc. of works which are lawful copies is sometimes expressly referred to in existing UK copyright law and otherwise may be implied. So  the proposed exceptions for private copying and quotation, although not parody for some reason, both introduce the notion of 'lawful'. So the private copying exception allows the consumer for non-commercial purposes to make a further copy for their private use provided it was "lawfully acquired". The proposed exception for quotation only applies to works already "lawfully" made available to the public.

However, as the recent referal to the European Court of Justice by the UK Supreme Court in the Meltwater case showed - see my blog post here - there is still legal uncertainty about what constitutes a legal copy in the online world. That is deeply troubling if we're about to introduce further exceptions and needs urgent clarification.

Copyright exceptions may need to reflect the realities of digital life. But the devil is in the detail. In a world in which our creative industries are one of the few in which we are world leaders, and where increasingly the transaction between provider and consumer is a licence not a sale of goods, the stakes are high here. We cannot afford to rush the process of amending the law. If we do, and make mistakes along the way, in the long run the losers will be consumers and users as well as creators and distributors. The only ones laughing will be those in whose interests it is to have a weakened UK copyright framework.

Have a good week.

Laurie Kaye

 

 

 

 

 

 

 

 

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