Copyright under review: more style than substance?

First published in the January/February 2012 issue of PLC Magazine

The UK government has greeted the new year with a flurry of copyright and design reviews. All arise from the government's review of whether intellectual property (IP) laws hamper digital innovation launched in November 2010. This resulted in Professor Hargreaves' "Review of Intellectual Property and Growth", published in May 2011 (Hargreaves review), followed by the government's response in August 2011 (see News brief 'Hargreaves review: the government responds', www.practicallaw.com/4-507-8708).

Despite the initial fanfare suggesting that the Hargreaves review would lead to sweeping changes and transform the UK into more of a competitor to Silicon Valley, the measures discussed in the copyright consultation (and focused on here) are, in the main, quite narrow and of sectoral, rather than general, application. The whole exercise now runs the risk of being seen as mere tinkering, while the main copyright issues of the day are being fought over at an EU level or globally.

Copyright consultation

One of the most fertile areas for debate ever since the worldwide web was launched has been exceptions to copyright; in other words, things users should be permitted to do with copyright works without having to seek the owner"s permission.

Many of the government"s latest proposals are to broaden exceptions, and it appears intent on introducing as many exceptions as are permitted by EU law, which ultimately governs this. These include looking at extending or implementing exceptions for archiving and preservation, use by disabled people, use for public administration and reporting, use of quotations or extracts, copying for research and private study, copying for the purpose of text and data analytics, educational use, private copying and parody.

Some of the proposals update existing exceptions to make them function better for digital works. Although the changes seem dry, their commercial implications may be significant. For example, there is an important debate going on between some parts of the publishing industry and medical researchers about whether an exception should be introduced for the use of data mining and analytics. Is this an unfair attempt to obtain access to valuable IP without payment, or a necessity if research is to continue to discover improved treatments?

Lying behind a number of the difficulties which the consultation is seeking to address is a simple practical matter: if someone wants to use a copyright work and is prepared to pay for a licence to do so, how do they find the right person from whom to ask permission? Sometimes this is nigh-on impossible; for example, "orphan works" where the rights owner has died and the new owner cannot be traced. But often, users are put off from having to deal with a multiplicity of rights owners.

Part of the current debate is on whether the law should insist that users clear rights properly (as, for example, is common in the film and TV production sectors), or face the consequences, or whether the law should provide a safety net. Many of the consultation"s proposals are for simplifying this area, ranging from introducing laws on orphan works to a new form of collective licensing ("extended collective licensing") to allow more of a blanket approach.

Apart from the practicalities, the consultation contemplates a few real changes to the UK"s approach to copyright; in particular, the proposed introduction of a private copying exception. This has been debated extensively since the "home taping is killing music" campaign of the 1980s. In an era in which anyone who listens to music through a digital format has almost certainly created a copy which, strictly speaking, is infringing, there is a clear rationale for change. Thinking through the ramifications and how best to implement a personal use exception is complex, however.

Also new, although of lesser significance, is the intention to introduce a parody exception. This, too, is not a new debate: it is only three years since the last government carefully examined and consulted on the issue, then came out firmly against introducing such an exception.

The EU factor

One reason why the list of changes seems small beer compared to the government"s grand plan or indeed some of the things said in the Hargreaves review, is that UK copyright law is nowadays substantially governed by EU law. The Information Society Directive (2001/29/EC), for example, sets out a list of which exceptions to copyright may be permitted, and EU member states cannot go beyond that. The idea that there should be a fundamentally more liberal approach to exceptions (which the government appeared in favour of) cannot be permitted under EU law.
EU law also leads the way in its case law, and, since 2011, the European Court of Justice's (ECJ) copyright jurisprudence has been gathering pace. This is having a profound effect on the copyright landscape.

Possibly most important has been the growing realisation that a 2009 ECJ decision may have introduced a way of defining copyright protection which applies universally (the key concept being the expression of the intellectual creation of the author of the work), and which is at odds with the way the UK copyright legislation approaches the issue (Infopaq International A/S v Danske Dagblades Forening, Case C-5/08; www.practicallaw.com/2-422-4217).

It is curious that there is no recognition of this in the government's recent announcements, or of any need to make much more extensive changes to a law which is now quite old and whose complexity helps no-one but copyright lawyers.

Digital Copyright Exchange

Outside the scope of potential legislation, an exercise is also being carried out to look more closely at one of Professor Hargreaves' headline proposals: the Digital Copyright Exchange. This would be an Amazon-style marketplace for content, where services wishing to use content could buy the rights automatically, without having to go through a lengthy clearance process.

The proposal has been met with some scepticism, partly because a number of efforts along similar lines are already underway in the various content industries, and partly because a top-down cross-industry approach simply may not work. If the exchange is not comprehensive in the content it covers, then it will be unattractive to users; but it is difficult to see how rights owners could be encouraged to use it without it being made mandatory, which the government is not planning to do.

The government has appointed a veteran of previous quangos, Richard Hooper, to carry out a feasibility study into the idea and how it may be brought about, and he has recently issued a call for evidence on this topic.

Review of design law

Although not part of the digital growth agenda by any means, design law was identified by the Hargreaves review as an area of confusion and inconsistent laws, which needed tidying up. This is unarguable, as there are six different protection regimes, all potentially applying to designs one way or another and all subject to different tests and principles.

The Intellectual Property Office (IPO) is conducting a separate design law review. Although the assessment document which the IPO has just published raises a number of issues for debate, it is clear that the IPO is still in the early stages of its thinking about what should be done. A full consultation will be launched later this year.

Mark Owen is a partner at Harbottle & Lewis LLP.

Current reviews

Intellectual Property Office: Consultation on proposals to change the UK"s copyright system (responses are required by 21 March 2012) www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

Digital Copyright Exchange feasibility study (responses to the Call for Evidence are required by 10 February 2012)
www.ipo.gov.uk/hargreaves-copyright-dce

Assessment of the relationship between design rights and innovation
www.ipo.gov.uk/types/hargreaves/hargreaves-designs/hargreaves-designsassessment.htm