Modernising the exceptions to copyright: the government consults on the draft amendments

by Reed Smith
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Last December in the document Modernising Copyright the government set out its decisions to amend some of the current exceptions to copyright protection and to add some new ones. The Intellectual Property Office has now published – for technical consideration only – the draft amendments to the relevant sections of the Copyright, Designs and Patents Act 1988. Anyone wishing to make comments to the IPO on the draft provisions should note the deadlines for doing so: 17 July for those dealing with private copying, parody, quotation and public administration; 2 August for those dealing with education, research, libraries and archives, and data analysis for non-commercial research.

The amendments will cover:

Private copying

  • A new exception will allow an individual to copy content that they own, and which they acquired lawfully, onto another medium or device for their own personal use.
  • That copy will become an infringing copy if it is transferred to another person, or if the copy from which it is made is so transferred.
  • Unlike in most other European countries, this will not be accompanied by a levy on recording equipment to provide a revenue stream to copyright owners. Instead, copyright owners must derive their compensation from the point of sale.
  • If the content which a person has acquired includes a technological protection measure to prevent the making of a copy, a person may not circumvent that in order to make a copy. They may, however, complain to the Secretary of State, who may order that the protective measure be removed.
  • A person may store their copy in any private place, including a private cloud or other remote electronic storage. 
  • Any contract term purporting to restrict or prevent copying as permitted by the new exception will be unenforceable.

Parody

  • A new exception will allow creators to make minor uses of other people’s copyright material for purposes of parody, caricature or pastiche.
  • The exception requires that the use should be fair dealing, a concept whose parameters have been delineated by the courts rather than by statute and are consequently not self-evident.
  • As in the case of private copying, any contract term purporting to restrict or prevent the creation of a parody, caricature or pastiche as permitted by the exception would be unenforceable.
  • It should also be remembered that the moral rights of the creator of the original work may be infringed by parody, and care must also be taken not to falsely attribute a work to an author (see the parody Alan Clark diaries’ case: Clark v Associated Newspapers Ltd [1998] I All E.R.959). The new exception will not override those protections.

Quotation

  • The present exception allowing fair dealing with a work for purposes of criticism or review of that work, of another work, or of a performance of a work, is to be expanded into a general fair dealing right of quotation for purposes such as, but not limited to, those two specific ones.
  • Interestingly, although the draft of the new parody exception requires the use to be fair dealing but does not prescribe any specific elements of that concept, the draft of the new quotation right expressly states that a use will not be fair dealing unless “the use of the quotation is in accordance with fair practice, and the extent of the quotation is required by the specific purpose for which it is required.” It seems possible that over time two differing fair dealing standards will develop: one for quotations and another for parodies.

Public administration

  • Amendments are proposed to the existing exceptions that allow public bodies to provide members of the public with copies of third parties’ copyright material that is open to inspection on an official register. Public bodies will in future be able to make such material available online, but not if that material is commercially available to the public with the authority of the copyright owner.

Education

The principal current exceptions for education do not apply to all types of copyright works, nor to all types of modern technology. The new exceptions will change that.

  • First, a new section 32 will permit all types of copyright work to be used for the purposes of instruction. The usage must, however, be fair dealing if it is to come within the exception. Here too, the concept of fair dealing is not defined further. The instruction must be for non-commercial purposes. Both a person giving instruction and a person receiving instruction will have the protection of the exception, and “instruction” will also cover use in examinations.
  • Second, the existing exception in section 35 that allows the recording and use in an educational establishment of a broadcast and of its copyright content (unless licences are available authorising such use) is expanded so as to allow the recording to be communicated to the public within the premises of that establishment, or off those premises on a secure electronic network only accessible to staff or pupils of the establishment. The new section also removes the requirement for licensing schemes to be certified by the Secretary of State.
  • Third, the existing exception in section 36 that allows a limited amount of copying of extracts and their supply within educational establishments (unless licences are available covering those activities) is expanded so as to apply to all types of copyright work, and so as to allow copies to be used in the form of electronic copies accessible through a secure electronic network accessible only to members of staff and pupils of the establishment. Note that this provision does not apply to broadcasts, as they are covered by section 35, or to artistic works that are not incorporated in another work (so the copying of photographs from a textbook would be within the exception). Finally, the amount which may be copied is raised from 1% per quarter of a year to 5% in any 12-month period.

Research, libraries and archives

  • As to research, the present exception allowing fair dealing usage for purposes of non-commercial research and private study is to be expanded so as to apply to any type of copyright work.
  • As to provision of copies by libraries and archivists, the current exception permitting this will also be expanded to cover all types of copyright work, irrespective of the medium on which they are recorded.
  • Limitations on the amount of copies made and supplied will continue to apply: a single copy of an article from a periodical; a reasonable proportion of any other published work.
  • Written declarations will still be required from persons requesting copies, but will no longer need to be in prescribed form.
  • Cultural institutions (defined as publicly accessible libraries, educational establishments, museums and archives) will be able to make works available for research or private study via dedicated terminals on their premises.
  • Cultural institutions will also be able to take advantage of a widened exception for archiving and preservation, which allows copying for those purposes.

Data analysis for non-commercial research

  • A new exception will specify that it is not an infringement of copyright for a person who already has a right to access a copyright work, whether under a licence or otherwise, to copy the work as part of a technological process of analysis and synthesis of the content of the work for the sole purpose of non-commercial research. This is the “data mining” exception which Professor Hargreaves in his report urged the government to introduce.
  • While a licence granted to provide access to a work will not be enforceable to prevent or restrict such use of the work, the licence will be permitted to impose conditions of access to the licensor’s computer system or to third party systems on which the work is accessed. This will allow a publisher to apply technological means required in order to maintain security or stability, or to license higher volumes of access at additional cost.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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