UK launches consultations on copyright exceptions

December 13th, 2009 by Barry Sookman Leave a reply »

The UK continues to move forward to modernize its copyright legislation. Fresh from tabling its Digital Economy Bill to address online file sharing, the government now plans to tackle the need for expanded copyright exceptions. It has done so with specific proposals for reform in its consultation document, Taking forward the Gowers Review of IP: Second stage consultation on Copyright Exceptions.

The UK consultation proposal is very relevant for Canadians given the consultation and reform process we are engaged in. We could learn much from the UK process. Here are some thoughts.

Process considerations

The UK government has eschewed an approach which tries to cover all amendments in one Bill. Rather it has decided to move forward on multiple fronts to make as much progress as possible to deal with needed copyright reforms. The government recognized as part of its Digital Britain initiative the need to reduce online file sharing in order to give the copyright industries a stable predictable environment to grow digital business models. So, after consultations on that front, it tabled the Digital Economy Bill proposing a notice and notice system backed up by a process to implement a nuanced graduated response process if the government’s specific objectives of reducing online file sharing were not met. The government also recognized the need to modernise copyright exceptions to adapt them for the digital environment. Hence, the new consultation process.

The UK government also shows leadership by identifying specifically what it proposes to do and sets clear timetables for next steps. In regards to the copyright exceptions, its consultations will end on 31 March 2010 and draft legislation will be laid in Parliament with a view to its coming into force in October 2010.

The UK government expressly recognizes that all exceptions must be subject to the Berne/TRIPs Three Step Test. Accordingly, it has assessed each proposed exception against the requirements of the ‘three step test’. An analysis is provided at the end of each relevant proposal.  The need for compliance with the Three Step Test is described in the consultation document as follows:

“The law of copyright in the UK is governed by the Copyright Designs and Patents Act 1988, (CDPA). It must comply with various international treaties and European Directives13 and must satisfy the “three step test” found within them.

The test has been the subject of a large amount of academic comment but there is very little decided case law. The first step requires an exemption to apply in clearly defined circumstances. The second step requires the normal exploitation of the right to be judged for each exclusive right individually. The underlying aim of the test is to ensure that an excepted use should not enter into competition with the original work. In making this assessment, the potential as well as actual effect of the exception on the market would need to be considered.

The third step involves a balancing exercise between the general interests in protecting the rights holder’s exclusive rights in a copyright work and the public interest in the exploitation of the work. The rights holder’s interests may be but are not necessarily limited to its economic interests. It has been suggested that this step essentially takes on the focal point of the three step test.”

The UK government also expressly acknowledges the balancing  considerations involved in the reform process.

“In seeking to update the copyright framework to try and deliver benefits, we are mindful of the need to retain appropriate rewards for creators as an incentive for further investment in creativity and to ensure the continued growth and success of the creative industries. We have also taken into account a variety of other factors, such as the public interest, the overall benefits to society, economic impact, potentially unintended consequences, and the constraints imposed by International and European legislation by which the UK is bound.”

The proposed exceptions

Educations exceptions

The government proposes to extend sections 35 and 36 of the UK copyright legislation to enable distance learning and the use of interactive whiteboards and to permit access to a broader range of works. In particular, it plans to extend the educational exceptions to permit certain broadcasts and study material (for example handouts of excerpts from copyright works) to be transmitted outside the institutional campus for the purposes of distance learning but only via secure networks. It also plans to extend the exception relating to small excerpts so that it covers film and sound recordings , but this will not cover artistic works. The exceptions will apply only to the extent that licensing schemes are not in place.

Format shifting

The government does not plan to introduce any new format exceptions at this time. It believes, rather than acting unilaterally, that an EU wide harmonized approach to address enforcing rights over personal, non-commercial use of works is the better approach. Accordingly, it plans to raise this at the EU level. According to the government:

“The fundamental issue, as the strategy notes, is that enforcing rights over personal, non-commercial use of works appears disproportionately difficult in the digital age. A case can therefore be made for an exception much broader than simply format-shifting, potentially covering not just the reproduction of legitimately-purchased works but also some degree of sharing of those reproductions in derivative works and/or with family and friends. Such an exception could impact on revenues for rights holders; an element of fair compensation for any loss would be required. Any such exception would have to be developed at the European level. “

Research and private study

 

The government proposes extending the current research and private study exception under section 29 (fair dealing) to allow the copying of sound recordings, films and broadcasts, but only if the individual is a member of an educational establishment and copying is for the purposes of a course of private study or for research at that establishment. It also proposes to enable librarians to copy sound recordings and films on behalf of individuals providing certain criteria are met.

Libraries and archives

The government proposes to extend the current exception to allow libraries, archives, museums and galleries to copy for preservation purposes films, sound recordings and certain artistic works not already provided for, to enable the transfer of works to different formats and to enable more than one preservation copy to be made; to ensure that legal deposit libraries are put in the same position as other libraries when it comes to copying for preservation purposes.

Parody

 

The government does not believe that there is sufficient justification to introduce a new exception for parody in the UK now. Overall, the information supplied in response to the first stage of the consultation was not sufficient to persuade it that the advantages of a new parody exception were sufficient to override the disadvantages to the creators and owners of the underlying work.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

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