Happy New Year? UK Copyright Proposals

As readers of this blog well know, copyright reform has been desperately needed in this country for many years. The earlier Gowers Review was almost totally ignored by the government that commissioned it, and there was always the fear that the more recent Hargreaves Review might suffer the same fate. Miraculously, that seems not to be the case. Just before Christmas, the UK government published its response to the consultation on copyright exceptions and clarifying copyright law with details of how it intends to proceed (.pdf), and they are really pretty good.

The executive summary contains a number of important statements:

This document details the Government's response to consultation on a number of areas where copyright legislation appeared to get in the way of reasonable use of copyright works. The response (set out below) has been developed with three principles in mind, these are:

1. The copyright framework must continue to incentivise creators of content and support them in protecting their rights from unlawful use;

2. Where possible barriers to competition and growth should be reduced;

3. There are areas of life where copyright should not interfere.

That last point is noteworthy. One of the big problems with copyright today is that it is affecting a vast range of activities that were never intended to be part of the copyright system, but which have been brought in thanks to the shift from analogue to digital.

The Government aims to find a balance between the interests of rights holders, creators, consumers and users by introducing through Parliament a revised framework of boundaries for copyright and related rights in the digital age.

That's a refreshing change: too often copyright has been seen purely through the optic of those holding the copyright, as if the public had no say in the matter. Balance is sorely lacking, and introducing it is vitally important.

Consumers and users who purchase access to content should not have to pay again to store or make use of that content, if it is for their private, non-commercial use.

Again, that's an important statement of a principle that has wide ramifications, and stands in contrast to today's attempts by the copyright industries to make people pay every time they use content in slightly different forms or in slightly different ways.

As has generally been the case, the present document is extremely well written, and worth reading for the insights it provides into the current state of copyright in the UK. The proposals are explored in some depth, with interesting background information about how the government reached its decisions.

The main proposals that are likely to be of interest for Open Enterprise readers are as follows.

1. Private copying

€¢ People will be permitted to copy content they have bought onto any medium or device that they own, strictly for their own personal use (such as transferring their music collection from CD to iPod).

€¢ This will not allow sharing copies with others but it will allow consumers to copy material to and from private online cloud storage.

Of course, this is simply recognising what everyone does, but it's regrettable that the UK government didn't go further, and allow copies to be shared more widely. There's increasing evidence that this actually drives further sales, acting as a kind of free marketing for the works concerned; it's a pity that this evidence was not taken into account here.

3. Quotation and news reporting

€¢ The Government will create a more general permission for quotation of copyright works for any purpose, as long as the use of a particular quotation is "fair dealing" and its source is acknowledged.

€¢ Minor uses of copyright materials, such as references and citations in academic papers, quotation as part of educational activities and short quotations on internet blogs or in tweets, will therefore be permitted as long as they are fair.

€¢ Photographs will continue to be excluded from news reporting provisions, as they are at present.

That's all welcome, but it seems perverse to exclude photographs. There is no logic to doing so, and merely reflects the noisy lobbying that photographers have conducted here as elsewhere (for example, during the passage of the Digital Economay Act.)

6. Data analytics for non-commercial research

€¢ Non-commercial researchers will be allowed to use computers to study published research results and other data without copyright law interfering.

€¢ Where researchers have lawful access to copyright works, for example through a subscription to a scientific journal or having copies of papers published under a Creative Commons licence, they will be allowed to make copies of those works to the extent necessary for their computer analysis.

€¢ Researchers will in many cases have to negotiate access to those works with copyright holders, for example through licensing. This approach is compatible with the approach to Open Access publishing set out by the Finch Review, allowing publishers to control access to their computer systems and get paid for the services they provide.

€¢ This is an emerging field and the Government is prepared to facilitate discussions between publishers and researchers, both commercial and non-commercial.

This is a missed opportunity. There is no reason why commercial use of data should not be allowed. After all, one of the reasons data is published is to allow others to build upon it; the current proposal seems to imply that publishers should own all the potential results that might be found in data, even if they don't find it. That's hardly sensible, since it means that the incentive for other companies to make discoveries is considerably reduced. Meanwhile, the original publishers are unlikely to have the resources to analyse that data. This implies discoveries are only likely to be made by researchers carrying out non-commercial work, which is well and good, but may overlook important commercial uses.

10. Copyright Notices

€¢ The Government also intends to introduce a new, non-statutory system for clarifying areas where there is manifest confusion or misunderstanding on the scope and application of copyright law via Copyright Notices issued by the Intellectual Property Office (IPO). These notices are intended to clarify, but not make new law.

As we have seen time and again, copyright law is confusing and difficult even for lawyers to navigate. Copyright notices that clarify areas are therefore to be welcomed if they bring more light and less heat to this area.

Other aspects of copyright covered by the proposals include in education (making it easier for schools to use small extracts without needing to take a licence); parody, caricature and pastiche; research and private study; access for people with disabilities; archiving and preservation; and public administration.

However, one topic where the government's proposals fall short concerns "TPM" (technical protection measures), aka DRM. The problem is that the new private copying right does not override DRM: so if you want to make a copy of a DRM'd file, you can't. Instead, here's what is supposed to happen:

If TPM prevent consumers benefiting from this permitted act, consumers will be able to appeal to the Secretary of State to obtain an accessible copy. The Government considers this is necessary to gain the full benefit of private copying, but does not want this provision to undermine the reasonable application of TPM by rights holders, particularly in new business models. The Government will therefore introduce a modified appeal provision, which will enable the Secretary of State to consider the availability of suitable commercial offerings and impacts on business before taking action on TPM.

Yes, that's right, if you want to make a backup of stuff with DRM, all you need to do is to write to the Secretary of State and ask for an accessible copy. Something tells me that people will probably locate alternatives to this...

To be fair, the UK government is limited by really stupid EU legislation here, and so finds its hands tied. And I should also note that more generally, the proposals do not allow contracts to override private copying rights:

the general principle that contracts should not be allowed to erode the benefits of permitted acts is accepted. Therefore, to the extent that is legally allowed, the government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

That's crucially important, otherwise copyright companies could simply impose a contract that completely undermines the new private copying right.

Here's what happens next:

The Government intends to legislate for a new system of permitted acts for copyright works, incorporating the changes discussed in this document. These changes need to be carried through consistently. In the light of stakeholder comments about the degree to which the existing Copyright Act has been amended since 1988, the Government will therefore introduce the system for Parliamentary approval en bloc rather than piecemeal, through the smallest possible number of Statutory Instruments. This will help the system be clear and consistent. For this reason, the Government proposes that all the measures take effect at the same time, the intention being that they come into force in October 2013.

Given that these measures result from a public call for evidence of the Hargreaves Review and have subsequently been consulted on by the Government, no further formal consultation is contemplated.

The Government will make available draft regulations for public scrutiny, and will seek comments on how well the text gives effect to the policies set out in this document. This is envisaged as comprising technical comments on the drafting of the regulations in question, not discussion of the merits of the policy. It will also publish criteria for appeal against refusals to provide copies of works protected by Technological Protection Measures.

That suggests the UK government will not listen to any more whining from the copyright industries that have had it so good until now, and managed to fend off any kind of substantive reform for so long. For that, it deserves praise, as it does for the general tenor of the proposals, which are probably as good as we could have hoped for in the circumstances.

However, it's rather sad that we must be so grateful for what really amounts to tinkering around the edges of copyright law, either bringing it into sync with what most people are doing anyway, or simply taking advantage of new possibilities that the shift from analogue to digital brings. While we should give thanks for what the UK government is proposing, we must also continue to push hard for real and deep reform of copyright that goes way beyond these welcome but frankly rather minor changes.

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