Written by David Marchese
Copyright exists to incentivise the producers of creative works, by providing them with the right to control how their works are used and by whom, and to be remunerated for this use. Any copyright exceptions therefore need to be justifiable and ensure that a fair equilibrium is achieved between the costs to users and the incentive for the supply of those works.
In recent years there have been a number of initiatives to update copyright law in the UK, to try to attain a fairer balance between the interests of creators and users. The latest of these, the Hargreaves Review of Intellectual Property and Growth in 2011, made a number of recommendations that were taken up by government, following which the UK Intellectual Property Office has been working on various proposed changes.
In April 2014 the government unveiled five new sets of draft regulations relating to copyright exceptions. Three of these came into force in June 2014, relating to research, education, libraries and archives; public administration; and the use by people with disabilities. However, the remaining two, relating to quotation, pastiche, caricature and parody; and the making of personal copies for private use, which clearly raised the most contentious issues, are still subject to discussions, although it is hoped that they will be in force by October 2014.
The new copyright exceptions that are now in place are as follows:
1. Research, Education, Libraries & Archives
The copying of sound recordings, films and broadcasts is now legal for non-commercial research and private study purposes, without permission being required from the copyright holder. Libraries, universities and other such institutions are also able to offer access to copyright works at electronic terminals on their premises for research and private study. However, any copying of the works must be fair and reasonable.
The changes also make it easier for schools, colleges and universities to use copyright materials with modern teaching practices such as distance learning, through the use of educational licensing schemes. They permit minor acts of copying, such as displaying a webpage or using quotes, for teaching purposes – again, as long as the use is considered fair and reasonable.
Computer-based analysis (text and data-mining) of copyright material for non-commercial research is now possible without permission from the rights holder being necessary. Archiving is also easier under the new law, with libraries, archives, museums and galleries able to make copies of all types of creative works in their collections in order to preserve them for future generations where purchasing a replacement is not reasonably practicable.
2. Public Administration
The copyright laws relating to public administration have been extended to enable more public bodies to share certain copyright material belonging to third parties online, such as material submitted by an individual or business for the purpose of maintaining a public register.
Public bodies are currently only able to provide copyright material by issuing paper copies or making the material available for inspection at their premises. Making this material available for wider viewing online enables the public to access information quickly and easily, offering greater transparency and saving time and expense for both the public bodies and individuals involved.
3. Accessible Formats For Disabled People
If a piece of copyright work is not available in a format that can be used by a disabled person, it is now possible to make either a single copy (in the case of individuals) or multiple copies (in the case of charities) in an “accessible format”, which is defined as a version of the work which enables the fuller enjoyment of the work by disabled persons.
The above exceptions will be a welcome extensions of the rights of users, along with the further exceptions which, as mentioned above, are hoped to come into force in October 2014. These are as follows:
4. Quotation, Pastiche, Caricature & Parody
Works of caricature, pastiche or parody often involve some level of copying from another work. The proposed change in law will allow people to make limited, reasonable use of creative content protected by copyright for this purpose, without having to obtain the permission of the copyright holder. However, the use must be fair and proportionate.
The change will also give individuals greater freedom to quote the work of others without having to obtain permission from the owner- again, provided that the use is fair and proportionate.
5. Personal Copies For Private Use
Perhaps the most controversial of the proposed changes, but one which has been urged on (even by the courts) for many years, is to allow individuals to make personal copies of works they have bought, for their own private use – for example to shift formats, back up or store media on another device. At present the only similar exception allows an individual to copy a TV broadcast in order to watch it at a more convenient time. However, the fact that it is technically still an infringement to transfer a track that has been lawfully purchased online to a mobile or similar device has undoubtedly brought the law into disrepute. The proposed change will also clarify that firms can legally make and provide technology that enables individuals to make private copies.
Making copies to give to other people, or giving others access to stored copies, will still be prohibited, and if a legally purchased copy is sold, back-up copies must be destroyed. Narrowing the exception in this way is supposed to allow for appropriate compensation to be paid at the point of sale, and to ensure the exception will cause minimal harm to copyright owners. However, the difficulties of monitoring compliance with the law in this area are obvious. Furthermore, the introduction of this exception without a mechanism for ensuring copyright holders receive “fair compensation”, as required by overarching EU copyright legislation, was recently raised as a concern. The Court of Justice of the EU (CJEU) may be asked to determine the legitimacy of the UK’s plans here.
Gordon Dadds can provide advice and assistance with regard to all aspects of Copyright.
Contact the Author
I graduated from Oxford University before qualifying as a solicitor at Herbert Smith. I went on to work at Richards Butler and then Davenport Lyons, before joining Gordon Dadds in 2014. I have extensive experience advising on the law of intellectual property, information technology and commercial contracts. I am the author of Business Licensing Agreements (Longman, 1995), the section on Supply of Goods and Services in Practical Commercial Precedents (Sweet & Maxwell) and several published articles including Joint Ownership of Intellectual Property (EIPR, 1999) and Warranties and Covenants in IP Licences (OUP, 2009).