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Thursday, 15 December 2011

Copyright reform - the UK proposals

The time is almost upon us when upstanding members of the IP community in the UK will be able to admit publicly that they've transferred their audio CD collections onto their music players - or at least that's what the government said yesterday, as they unveiled their plans to create an exception for private copying. (This Kat, located in a neighbouring jurisdiction where private copying of one's own CDs remains prohibited, has of course never countenanced such subversive, penny-pinching behaviour, and happily shells out to repurchase his entire music collection in multiple different formats at every possible opportunity.)

The private copying exception, as readers will recall, was just one of the recommendations for copyright reform in the Hargreaves Report. In August 2011 (as the IPKat reported here), the UK government committed to implement the main conclusions of that report, and the IPO has now published a consultation document setting out the details of what is proposed in the field of copyright. The consultation will be open for comments for 14 weeks, concluding on 21 March 2012, and you can access the documents here.
The consultation document runs to 171 pages, and the press release tells us that the proposals include:

To vote for a private copying exception, press down on
the "play" and "record" buttons simultaneously.
  • Creating an exception to allow limited acts of private copying - for example making it legal to copy a CD to an MP3 player.

  • Widening the exception for non-commercial research to allow data mining, enabling researchers to achieve new medical and scientific advances from existing research. Currently researchers cannot use some new computer techniques to read data from journal articles which they have already paid to access without specific permission from the copyright owners of each article.
  • Introducing an exception for parody and pastiche, to give comedians and other people the creative freedom to parody someone else’s work without seeking permission from the copyright holder.

  • Establishing licensing and clearance procedures for ‘orphan works’ (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes.

  • Introducing provision for voluntary extended collective licensing schemes, which would make it simpler to get permission to use copyrighted works and help ensure rights owners are paid. These schemes would allow authorised collecting societies to license on behalf of all rights holders in a sector (except for those who choose to opt out).

  • Modernising other exceptions to copyright including those for education, quotation, and people with disabilities.
The IPKat's conscience, not satisfied with a simple rehash of a press release, required that he hastily do some skim reading of the document itself to see if anything had been overlooked by the PR people, and indeed there are a few other nuggets, such as:

  • Requiring collecting societies to put in place self-regulating codes of conduct meeting minimum standards, accompanied by the threat of statutory regulation for those collecting societies who do not implement adequate self-regulation. [Well, says Merpel, since self-regulation has proved to be such a reliable model for the Press, why not?]

Librarians everywhere are just waiting for the
word to start making multiple archive copies
  • Broadening the exceptions which allow libraries and archivists to copy works for archival or replacement purposes, so that these will apply in future to audiovisual works and sound recordings as well as literary, dramatic or musical works, and so that multiple copies can be made. It is also proposed that museums and galleries should benefit from this exception.

  • Widening the "research and private study" exception to cover all types of media and in particular audiovisual materials.

  • Amending the current exceptions for public administration and reporting to permit the publication of relevant documents online (not just by issuing single copies on request).

  • A prohibition on allowing contractual provisions to override any of the statutory copyright exceptions.

  • Introducing a statutory obligation on the IPO to issue general Notices (i.e. public guidelines) on areas where there is manifest confusion or misunderstanding on the scope and application of copyright law. Such Notices would be provided in response to issues raised with the IPO or on the IPO’s own initiative. Courts would be required to take them into account but they would not override statute or case law.

Some of the areas where the Government believes that change might be desirable but is undecided on the means for implementing the change include:

"I don't care what the Copyright Act says, young
Jason. I'm not recording 'Barney' whenever you're
asleep and that's that."
  • Providing a general exception for social institutions (hospitals, care homes, prisons) to record broadcasts, possibly extending the time-shifting exception.

  • Providing a new exception for use of copyright works during religious or official celebrations.

  • Expanding the exception, which allows issuing copies of an artistic work to advertise the work for sale, to cover use for public exhibition or sale of artistic works on the internet.

  • Extending the exception which allows broadcasts to be used for demonstration and repair purposes (i.e. dozens of TV sets showing a broadcast in a shop) beyond broadcasts to include material such as DVDs, CDs, or e-book reader content.

  • Providing a general exception for photocopying, i.e. outside of the existing or proposed exceptions such as for research or private study or permitted educational purposes. Such an exception would allow an individual to photocopy pages from a book they own. (It is not proposed to provide this general exception as there was no apparent demand from those who commented on Hargreaves.)

Finally, there are a few exceptions already provided in law where there is a demand to expand the exception but the government feels its hands are tied as it perceives that UK law currently exploits the maximum allowed scope of these exceptions under the various copyright directives, including:

  • The exception for temporary or ephemeral copies of works made by a broadcaster for the purposes of making a broadcast. 

  • The exception allowing the copying of works located in public places.

  • The exception allowing incidental inclusion of a work in other material - though this exception could be clarified.

All in all, it looks like a good deal of thought and work has gone into considering what can and cannot be done. If you want to have your say on the shape of these changes, now's your chance.

3 comments:

Anonymous said...

Religious or official celebrations, eh? Applied to those who follow the Cult of Celebrity, this exclusion might be rather too widely drawn...

Anonymous said...

No mention of further extending the the copyright term?

"Death plus 70" is really very limiting and we are missing out on a lot of great art, music and literature by under-rewarding our creative geniuses.

In fact, it is very clear that a primary driver of the break up of the Beatles was the fact that John and Paul didn't feel it was worth writing further music together when it was clear that their great-great-grandchildren wouldn't get any real economic benefit.

Anonymous said...

This is all well and good but if there is a fully fledged exception -how will the UK comply with the requirement to provide fair compensation for private copying under Article 5(2)(b) of Directive 200/29. Is it going to introduce the private copying levy on blank media, printers, PCs, I-Pods, and anything that is capable of storing or printing copyright mateiral (and not simply old faionhed home taping)? This is the system of so called "blank tape levy" that was rejected by the UK in the 1980s and which prevails in most other EU MS. Basically, the levy system (See Padawan and Stichting Thuiskopie judgments) adds to the price of purchase of consumer equipment and is collected and distributed by collecting socities. It is the subject of at least further 2 preliminary references to the Court of Justice C-457/11 and C-521/11 and reform is underway by the Commission.Or will there be some other form of fair compensation whic is it open to MS to set under the Directive?

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