Back in May I attended a seminar jointly run by BIALL and NetIKX, on “The Future of Copyright”. It was fairly timely for me as I’d just taken over as copyright officer within my team at work, so a refresher seemed like a good idea!
Changes to copyright law
Charles Oppenheim was up first, with an incredibly informative talk on the state of copyright in the UK, and current attempts to review/update the law. There was a huge amount of detail in his talk, far more than I could have written down, so what follows is my highlights:
The current trend in copyright law is to strengthen rights for copyright holders, at the expense of content users. This is largely a reaction against changes in the electronic environment, and the ease of producing lots of copies of digital content. There are a few proposals around to redress the balance, but at the moment the debate is very heavily weighted in favour of rights holders.
Exceptions to copyright in the UK are under the doctrine of “fair dealing”, which allows a specific and restrictive set of circumstances in which copyright can be avoided. This is contrasted with the US position of “fair use”, which is more flexible than fair dealing. There tends to be more litigation around fair use in the US than there is in the UK on fair dealing, as fair use is more ambiguous and subjective.
The main initiative at the moment is the Hargreaves Review of Intellectual Property and Growth. The report was published in 2011, and a consultation was then carried out. The government are due to publish a white paper setting out their proposals for implementing the review “by the end of Summer 2012”: to date, this has not yet appeared. Current progress on implementing the Hargreaves Review is available on the IPO website.
The main thrust of the Hargreaves Review was to increase flexibility in copyright and other IP protections, in order to encourage innovation. Some see the proposals as an attempt to move the UK towards a system more like the US fair use – although legislative changes would need to be made at the European level to allow this to happen.
Some of Hargreaves’ proposals:
- Exception for orphan works for non-commercial use
- Reduce lifetime of copyright for unpublished or anonymous works
- Creation of a Digital Copyright Exchange – public information about licences available for specific works [the results of a feasibility study into this were published in July 2012]
- Move to evidence-based rather than lobbying-based policy [although Charles noted that he thought this was unlikely!]
- Exceptions for private copying (e.g. ripping a copy of a CD you own into iTunes or other software)
- Proposed exception for test and data mining, e.g. for auto-summarising and analysis software [this is very controversial in the scholarly publishing sphere]
- No contract can override an exception to copyright [currently, some licences may include giving away some of your user rights]
- Code of Conduct for collecting societies (e.g. the Copyright Licensing Agency (CLA))
- Intellectual Property Office (IPO) to develop plans for a “copyright opinions service” (although this would probably only be available to educational institutions
Charles had his own set of predictions in response to these:
- Most proposals will be watered down due to lobbying from rights holders
- Any implementation will be delayed
- Little hope for a move to evidence-based policy! Charles pointed to a couple of recent examples of the power of lobbying: e.g. in the Leveson enquiry it was revealed that News International had requested an advance copy of the Hargreaves Review. Also noted the recent “Cliff’s Law” – extending the copyright period on music recordings due to industry lobbying, notably from Cliff Richard, despite all objective evidence pointing to the economic benefits of shorter copyright terms.
Digital Economy Act
The other major area of change in the UK’s copyright law is the Digital Economy Act. This was rushed through Parliament in the dying days of the last Labour government, and came into force in June 2010 – although it is not yet fully implemented, as it is awaiting a code of practice to be published by Ofcom (a draft was published for consultation in June 2012, and a final version is expected to be implemented by the end of 2012).
Of interest to information professionals are sections 3-18 of the Act, which relate to using technical measures to prevent copyright infringement. This includes a “three strikes” rule, where an IP address found to have infringed copyright three times will be disconnected from the internet. The first warning letters under this rule are expected to be sent out in 2014.
This rule has obvious implications for any institution offering public wifi, such as a library. It has also been controversial as it is not clear how it would be confirmed who had actually committed the acts; nor is it clear what kind of appeals process would be in place. A judicial review by TalkTalk and BT over this rule failed. LACA, JISC and other information professional bodies have written to Ofcom requesting an exception to this rule for institutions offering public wifi, but Ofcom is reluctant.
Key cases and international context
Next up was Emily Goodhand, with a whistlestop tour of the key UK and international regulations and cases to be aware of. Again, much more was said than I could actually jot down, so these are my highlights.
European legislation and progress:
- IPR Enforcement Directive: currently under review
- Digital Agenda for Europe (2010-2020): one of seven flagship initiatives under the Europe 2020 Agenda for growth. The Agenda outlines seven areas for action: creating a digital Single Market, greater interoperability, boosting internet trust and security, faster internet access, investment in research and development, enhancing digital literacy skills, and applying ICT to address challenges facing society like climate change and the ageing population.
- Infopaq International A/S v Danske Dagblades Forening, Case C-5/08, 16 July 2009: Held that as few as 11 words could count as “substantive part” and therefore copyright
- NLA v Meltwater  EWCA Civ 890: Held that a newspaper headline could be considered a literary work, and therefore copyright – so both senders and recipients of a commercial media monitoring alert would need to hold an NLA licence
- FT.com vs Blackstone: The FT sued Blackstone for allowing employees to share a login for FT.com, rather than purchasing individual or company subscriptions. The case was settled privately.
- Move towards more balance in the copyright framework
- Increase in litigation, thanks to the proposed introduction of small claims track in the Patents County Court (expected next year)
- Introduction of a Digital Licensing Portal
At the end of the session, we all separated into groups to discuss our own problems and frustrations with copyright, and what we felt might change given the topics discussed throughout the seminar. The most common problems listed were:
- Policing copyright – everyone hated doing this, largely because it makes the users see us as just being obstructive for the sake of it!
- Understanding/clarity – it’s often hard to give (or get!) a definitive answer on copyright queries
- Licensing – there are lots of different licences with different rules, so it’s difficult to keep straight what you can do with some publications but not others. The Hargreaves proposal that contracts should not be allowed to override copyright exceptions was welcomed for this reason
- Copyright as a barrier to access – as librarians we all want to make sure people can access the information they need, so acting as copyright gatekeepers can go against the grain!