Copyright law for a ‘digital age’? New exceptions laid before UK Parliament

Update (8 May 2014): it seems that the Joint Committee on Statutory Instruments is still to consider some of the draft regulations. This may make the planned coming into force date of 1 June less certain. See the parliament.uk website here: http://www.publications.parliament.uk/pa/ld/ldordpap.htm

 

Following an extensive public consultation period, the UK Government has issued its final versions of draft legislation amending the Copyright, Designs and Patents Act 1988 to update the existing law on copyright exceptions. If approved by both Houses of Parliament, the new and revised exceptions will come into force from 1 June 2014.

The reforms (which are set out in detail on the UK IPO website, together with guidance materials) follow the recommendations made in the 2011 Hargreaves Review of intellectual property (see our previous post here) and represent the Government’s attempt to remodel copyright exceptions for “the digital age“.

In Australia, the Federal Government is also attempting to remodel copyright exceptions for “the digital age”.  The Australian Law Reform Commission, in its Copyright and the Digital Economy inquiry, recommended the introduction of a “fair use” exception for copyright infringement (see our previous post here).  In contrast, the possibility of a “fair use” exception was expressly rejected in the UK by the Hargreaves Review and has not been included in the draft UK copyright amendments.  It remains to be seen in Australia whether the fair use exception will be adopted by the Federal Government.  Will the UK draft legislation have any influence on the Australian reform process?  

Well, what are the new exceptions that have been proposed in the UK?

1             Fair dealing

Several of the exceptions involve a ‘fair dealing’ requirement as previously. However, the Government has resisted calls to define fair dealing in statute, concluding that this would be over-prescriptive and would undermine its aim of ensuring copyright exceptions can adapt to future technological change.

Accordingly, ‘fair dealing’ will continue to be assessed by reference to the particular circumstances, degree and impression in each individual case which means that it remains difficult to set out clear rules on when the relevant exceptions will apply. Court of Appeal case law has established that the question to ask is whether, objectively, a fair-minded and honest person would have dealt with the copyright work in the manner in which the defendant did. Relevant factors to this assessment include whether or not the use of the work affects the market for the original work, and whether the amount of the original work taken is reasonable and appropriate.

2             Personal copies for private use

One of the headline amendments in the new legislation gives individuals the right to make a personal copy of copyright material they have lawfully acquired for private use, e.g. for the purposes of format-shifting or making back-up copies. This would allow individuals to, for example, copy music from a CD they have purchased onto an MP3 player or to make a back-up copy of a film for storage on a cloud server. This new exception will not, however, extend to creating private copies of works for family or friends or allowing others access to personal copies stored on personal cloud storage. Further, where an individual gives away or sells the physical copy of the copyright work, they must then destroy any personal copy they have made.

These proposals have received much attention, as they legitimise acts which many consumers have assumed were legal in any event. Of course, copyright infringements of this kind by consumers have always been very difficult to enforce and it appears likely that, going forward, the limitations on the new exception will also be difficult to police. It is also noteworthy that no provision is made for fair compensation for rights holders through a levy on devices and media, despite this being a requirement of the Information Society Directive. It appears that this is because the Government takes the view Member States have discretion over such compensation systems and that the new exception has been drawn narrowly to ensure that no harm is caused to rights holders (compared to those countries which do provide levies systems where private copying exceptions are drawn more broadly).

The new exception does not cover computer programs, which are subject to their own existing provisions in the CDPA relating to the making of back-up copies, acts of decompilation and acts of observing, study and testing.

Copyright works such as DVDs and other media can still be protected by technological protection measures (TPMs), giving comfort to companies who rely on this technology to combat copyright piracy. However, the legislation includes a procedure which will allow a complaint to be made to the Secretary of State on the grounds that a TPM unreasonably prevents or restricts the making of personal copies for private use. This provision, which is similar to the existing provision in the CDPA concerning permitted acts and TPMs, provides that the Secretary of State can then issue directions in respect of that TPM. It recognises however that the Secretary of State can take into account the copyright owner’s right to adopt measures limiting the number of personal copies which can be made and whether the copyright owner has made other copies of the work commercially available on reasonable terms in a form which does not prevent or unreasonably restrict the making of personal copies.

3             Quotation

The current CDPA contains a fair dealing exception for copyright works where use is made of the copyright work for criticism, review or news reporting. The new exception widens the existing law to provide for fair dealing by quotation generally (whilst retaining the reference to criticism, review and news reporting). Provided the use can be considered fair dealing and the source of the quotation is acknowledged, such use will not infringe copyright. Given the flexibility of the definition of fair dealing, there are no hard and fast rules here, but the Government indicates that short quotations justified by their context are likely to be considered fair, while copying of long extracts without justification will be likely to remain unlawful. This change will no doubt benefit authors, journalists, academics and casual bloggers.

4             Caricature, parody and pastiche

Limited uses of copyright material for the purposes of caricature, parody or pastiche will now be permitted, subject again to the requirement of fair dealing. This represents the Government’s recognition of the relevance of such genres with the development of digital technology, particularly parody video remixes on social networking websites, making it far easier to create these works without permission from the copyright owner.

The Government has indicated that the differences between the three terms are broadly as follows:

  • A parody imitates a work for humorous or satirical effect, commenting on the original work, its subject author, style or some other target
  • A pastiche is a musical or other composition which is made up of selections from various sources or one that imitates the style of another artist or period
  • A caricature portrays its subject in a simplified or exaggerated way, which could be insulting or complimentary, and could be for serious purposes (e.g. political) or for entertainment purposes

It accepts however that there are nuances between the three terms and in many cases a given use of copyright material may incorporate all of them.

Entertainers and comedians (including satirical TV news programmes) will benefit from the expanded exception, alongside amateur parodists. However, the guidance notes suggest that it would not be fair dealing to use an entire musical track on a spoof video. Indeed, this would tend to suggest that many parodies will not fall within the intended exception as, for a parody to be effective, it has to be recognised as a parody of the copyright work, which could therefore involve more than ‘fair dealing’ with the copyright work.

Further, moral rights protection against “derogatory treatment” of a work remains in place, which may lead to a rise in such claims (derogatory treatment cases have tended to be rare; and those that are successful have not led to substantial damages awards).

5             Contractual override provisions

The Government has stressed that it has sought to ensure that the proposed legislation protects rights holders’ ability to control how their works are used and accessed to an appropriate degree. Notwithstanding this, the legislation contains provisions which prohibit rights holders and licensors from overriding the exceptions by using contractual terms which purport to restrict or prevent the act that is permitted by the exception. Rights holders will have to consider carefully whether acts prohibited under existing contracts can no longer be prevented once the new legislation takes effect.

6             Comment

Other copyright exceptions added or expanded by the new legislation concern education, research for non-commercial purposes and private study, copying by libraries, non-commercial research through text and data analysis, accessible formats for disabled people and public administration and reporting.

Overall, whilst the intention of the new copyright exceptions may be to update copyright law for a modern age, the rules remains complex and, given the requirement of ‘fair dealing’, of potentially uncertain operation. The likely effect of the new and revised exceptions may not be fully known until appropriate cases start to come before the courts for judicial interpretation (which in any given case will depend on the anticipated level of damages and ease of enforcement).

 

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