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Wednesday, 9 September 2015

Caught in the Act: the shameful state of UK copyright legislation

Earlier today, fellow Kat Nicola posted an item the title of which opened with the cunningly rhymed words "The Authority's Priorities".  This piece reviews the UK Intellectual Property Office (IPO)'s research and evaluation priorities for the coming year.  Sadly these priorities do not include tidying up the country's appallingly muddled copyright legislation.

This Kat has often complained about the Copyright, Designs and Patents Act 1988 (CDPA) -- a statute that is vast in its length (he believes that it is the copyright-related bits of it represent the world's longest piece of primary copyright legislation), encrusted with amendments across its length and breadth like barnacles on a ship's hull, possessed of a multiplicity of definition sections which do not, however, contain all the Act's definitions, and generally in need of repair.  But this Kat is not the only one to complain. He has recently received the following from a reader who is a respected senior member of the copyright community and who writes:
How does one find an accurate text of the CDPA? The version posted on the IPO website is not accurate. A glaring example is that it wrongly does not include section 44B, 76A, Schedule 2 para 6I [inattentive readers: that's 6 plus the letter 'I', not the numeral '61'] or Schedule ZA1 (in force since 29 October 2014). But it correctly does not include section 28B and Schedule 2 para 1B, since the Regulations which inserted them were quashed by Green J in the BASCA case.

The same is true of the version on legislation.gov.uk [which is headed with the rubric "Changes to legislation: there are outstanding changes not yet made by the legislation.gov.uk editorial team to Copyright, Designs and Patents Act 1988. Any changes that have already been made by the team appear in the content and are referenced with annotations"].

By contrast, the version on Westlaw correctly includes section 44B., 76A, Schedule 2 para 6I and Schedule ZA1, but wrongly shows section 28B and Schedule 2 para 1B as being in force.

How is anyone supposed to know what the law is if the text of the statute is inaccurate in every online source (let alone out-of-date print sources)? How are even specialist practitioners supposed to give accurate advice to clients?
Incidentally, the version of the Act on the IPO website is uncomfortably headed by the following disclaimer:
This document is an unofficial consolidated text of the main UK legislation on copyright. It has been produced by the United Kingdom Intellectual Property Office but we cannot guarantee its accuracy and it has no legal authority. Only the Copyright, Designs and Patents Act 1988 as enacted and the other Acts of Parliament and Statutory Instruments amending it, or making provision on copyright and related rights separately from the Act, are authoritative. These can be found on the Legislation.gov.uk website at http://www.legislation.gov.uk/.
This Kat is puzzled as to why this shameful state of affairs should be allowed to persist.  Here is a system failure that should never have been allowed to exist in the first place and which -- unlike many of the country's commercial and industrial issues -- can with relatively little time and effort be put right. Will the IPO please rise to the challenge, make this a priority and grab this opportunity to secure some easy brownie points with its users?

Merpel adds: can we not do some crowd-funding to pay for the time and effort it would take to redraft the CDPA, renumbering all the sections so that they can be more easily understood and located by users of the legislation?

10 comments:

Howard Knopf said...

Dear Jeremy:

I would suggest that the problem is not with the consolidation and editing of the myriad amendments but with the copyright statute itself, which suffers under the weight of countless lobbyists and the politicians and officials who have allowed them to come on board with unlimited baggage. The UK should have kept the great tradition of its very elegant and compact 1911 legislation. The best statement on this is from our late friend, the incomparable Sir Hugh Laddie – may his memory be a blessing:

"The [UK] Act of 1911 was a timid little creature. It contained a mere 37 sections. Some believe it was the best Copyright Act we ever had. The 1956 Act was a formidable affair. It contained 57 Sections. It held sway during a period in which copyright legislation burgeoned. But the 1988 Act puts all of this to shame. It contains over 300 sections, about 280 of which relate to copyright and its new offspring, design right. The increase in size cannot be attributed merely to a trend toward verbosity in modern legislation, although there certainly is some of that present in the 1988 Act. To a large extent, it reflects the spread and creation of new copyright-type rights...

You can libel a dead author to your heart's content, but if you want to honour him by publishing a commemorative edition of his letters, 50, 60 or 69 years after his death, you will infringe copyright, you shall have to pay exemplary damages and... you may be prosecuted."

(address on the death sf Steven Stewart, Q.C., Copyright: Over Strength, Over-Regulated, Over-Rated?, [1996] EIPR 253

The UK needs to get serious about substantive copyright revision and simplification of its copyright statute. This will be no easy task, given that the UK has surrendered its copyright sovereignty to the EU. Canada’s statute has become bloated too in many ways, but it is still at least somewhat recognizable as the offspring of its great 1911 ancestor. Yours, not so much.

Best regards,

Howard Knopf
Canada

Jeremy said...

Thanks, Howard. Funnily enough, I've just been preparing some words of praise for the Copyright Act 1956, which worked really well in the days of innocence that preceded the invention of the internet.

As the late, great Hugh Laddie said: "You can libel a dead author to your heart's content". I hope that, as he reads this blog from his bench in the Celestial High Court, he will permit me the observation that the Copyright Act 1956 had only 51 sections, not 57.

Ron said...

IMHO, one bit of nonsense in the current act is the provision that vests copyright in a photograph to the person taking it rather than the owner of the film (or equivalent medium). This means that if you give your camera to someone to take a photo of you, then they own the copyright and you are potentially committing a criminal act by making prints of it or sending copies to friends and family, unless you had got them to execute a written assignment of copyright to you. The recent issue of ownership of the photo taken by the monkey would not have arisen under the 1956 Act.

Howard Knopf said...

Dear Jeremy:

Your 1988 CDPA was, of course, barely after the dawn on personal computers. It was well before the Internet as we know it. It was about 6 years prior to widespread access to the WWW via Netscape and IE - and at least about 10 years before Google, Napster and other major developments, such as high speed connectivity.

So, with respect to those who were responsible for the 1988 CDPA, the Internet cannot be blamed.

One of the elegant aspects of the 1911 legislation was that it was amazingly good at "technological neutrality", which is a paragon that should always be pursued.

Best regards,

Howard

Anonymous said...

Good comments by Howard Knopf - let's not just tidy up the CDPA, but make our copyright legislation suitable for the 21st Century/digital age.

Robin Stout (IPO) said...

Jeremy

Thanks for flagging these omissions from our unofficial consolidation of the CDPA. It appears that we haven’t updated our consolidation with the changes made by the recent orphan works legislation, and we are working to rectify this. If anyone spots any other errors or omissions they are welcome to contact us at copyrightenquiries@ipo.gov.uk, and we will make any necessary changes.

Robin

Ron said...

Re inaccuracies in the Legislation.gov.uk web site versions, last August I noticed that, while their on-line version of the Patents Act 1977 mentioned amendments that had been made to S.50A, it did not actually include S50A itself. S.50A had been added in 2002! I did report its ommision at the time, and the error has now (presumably) been fixed, but I would been unaware of its omission but for the reference to its subsequent amendment.

Max said...

With regard to the availability of up-to-date legislation I have to agree - it is particularly unfortunate as to how difficult it is to obtain correct and up-to-date copies of legislation without searching through all the various acts and statutory instruments that may or may not have made relevant changes.

I'm sure that this is only a temporary state of affairs until all the necessary amendments are made to the legislation on legislation.gov.uk, and hopefully we can see this day sooner rather than later.

I quite like the idea of crowdsourcing updates to legislation. Whilst this already takes place to some extent through the "Expert Participation Programme" run by the National Archives, I do feel that opening up the process to the general public would help somewhat in speeding up the process. Of course, there would need to be some sort of 'review' but I'll let someone else work out the details!

Ron said...

The trouble is, how can you become aware of something that isn't there? In the case of the missing S.50A, it had been missing for 12 years, and the legislation that had added it was the Enterprise Act 2002 and not an act or statutory instrument directly concerned with Patents. I seem to recall that in the pre-internet days, you could set up an account with HMSO in respect of a piece of legislation, and they would then send you copies of any legislation that affected your chosen legislation. When I was a TA studying for the CIPA exams in the 1990's, my hard copies of the 1977 Patents Act and its Rules were full of inserted sheets containing new clauses.

Incidentally, I wasn't actually interested in S.50A, but was checking what I thought was the definitive version of the Patents Act 1977 against my elderly hard copy to update it with the latest amendments, noticed a warning that the latest amendments to S.50A had not yet been incorporated, and thus became aware of the total absence of S.50A per se.

Francis Davey said...

The plan (so the person in charge of it at the National Archives tells me) is to have all of the online statute law database completely up to date by 2016. The team have been working on a lot of system improvements that means that when they have it all in place, keeping it up to date should be possible.

The state of *case law* is, on the other hand, rather more woeful. As yet, there is almost no open data (and, no, Bailii is not open data), publishing of UK case law (with a few exceptions) and the situation for the central courts in England and Wales is woeful.

This is an appalling situation and needs remedying fast. The extreme unconcern about the situation from many senior members of the judiciary and the legal profession as a whole does not credit to either of those bodies. Judgments are created using public funds, the public should have open access to them.

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