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A B C D E F G H I J K L M N O P R S T V W Y

Stop Press: Changes to copyright law – Exceptions to copyright

Stop Press: Changes to copyright law – Exceptions to copyright
Monday 29th September 2014

New Exceptions to Copyright Law

The government are making a series of changes to copyright law to modernise the current legislation.  The changes are intended to introduce greater freedoms to allow third parties to use copyright works for a range of “economically or socially valuable purposes” without the need to seek the original owner’s permission.  The changes will therefore have an impact on how the contents in books, music, films and photographs can be used.

These changes have derived from a long consultation process (following both the Gowers (2005/6) and the Hargreaves (2010/11) IP reviews) and the government has laid out five draft statutory instruments.  Three of these – Research and Private Study, Public Administration and Accessible Formats for Disabled People - have now been approved by parliament and came into force on 1 June 2014.

The government has placed a lot of emphasis on their belief that the exceptions will enhance economic growth including the benefitting both consumers and rights holders in creative industries.  However, arguably the new provisions ultimately unduly favour users at the expense of rights owners.

The Exceptions

  1. Personal Copies for Private Use

The draft regulations permit people to make private copies of media they have bought (such as CDs and eBooks), for the purposes of formant shifting or back up.  This will allow someone to transfer their own CDs onto their mp3 players but will not allow people to make copies and distribute them to other people.

The draft regulations also give rights holders freedom to deploy restrictive measures to prevent copying of their works for private use.  Consumers could then raise a complaint about the restrictive measures with the UK’s Business Secretary who would have the power to a order rights holder to exercise their right to a private copy of the works.  The Business Secretary would need to consider “whether other copies of the work are commercially available on reasonable terms…,in a form which does not prevent or unreasonably restrict the making of personal copies.”  The effectiveness of the complaints procedure will depend on whether consumers will be aware of its existence.

In general, despite its implementation being delayed, this is a widely welcomed amendment which reflects modern practices.

  1. (a) Caricature, Parody or Pastiche

Works of caricature, parody or pastiche will often involve some level of copying from another work.  The new exception allows use of someone else’s copyright work for these purposes so long as the use is fair and proportionate.

The government refers to the need for a fair dealing with the original work, so as to minimise the potential harm to relevant copyright owners.  Fair dealing suggests that it is only permitted to make use of a limited moderate amount of someone’s work.  This may not go as far as some users would like but generally the exception is welcomed by those who produce such creations.  However, the exception may understandably not be welcomed by rights owners.

In addition, whether something qualifies as a permitted caricature, parody or pastiche, and/or constitutes fair dealing, is likely to be a heavily argued issue.  There are therefore concerns that this exception will cause more disputes and litigation until the case law on the issues become settled.  It is unlikely to stop rights holders alleging infringement where they feel their work has been unfairly copied but is likely to give rise to defences (both genuine and spurious) based on this exception.

It is perhaps less surprising that the implementation of this exception also has been delayed.

(b) Quotation

Greater freedom is being given to quote the works of others.  It will be possible to take quotations from copyright works without the permission of the owner as long as it is fair and proportionate.  Quoting the title or a short extract of an academic article may be considered fair, however, to copy a long extract from a book without justifying the context would not be permitted.  Although this exception does not seem of itself to be problematic its implementation has been delayed as it is part of the same statutory instrument as the Caricature, Parody and Pastiche exceptions.

  1. (a) Research and Private Study

The regulations will permit reasonable copying of sound recordings, films and broadcasts for non-commercial research and private study without permission from the copyright holder.  Institutions like libraries and universities will be able to offer access to copyright works on the premises for research and private study.   Students will therefore have greater access to content in various fields.

(b) Text and Data-mining

The changes will allow computer-based analysis of copyright material for non-commercial research without having to obtain specific permission from the rights holders.  This allows researchers the ability to copy materials for the technical process of data mining, as long as they have the right to access the works in question.  This exception would only apply if the research was carried out for non-commercial purposes only.

(c) Education and Teaching

The exceptions are widened for educational bodies allowing greater use of copyright materials in conjunction with educational licensing schemes.  Restrictions on the use of copyright for more modern teaching methods such as distance learning materials will be removed.    The changes will allow for minor acts of copying for teaching purposes.  For example, teachers will be allowed to display webpages and quotes on interactive whiteboards without seeking permission.

(d) Archiving and Preservation

The new regulations will make it easier for libraries, archives and museums and galleries to preserve their respective collections.   They will be able to make copies of all types of creative works in order to preserve them for future generations when it is not reasonable practicable to purchase a replacement.

  1. Public Administration

The copyright laws relating to public administration will be extended to allow more public bodies to proactively share third party copyright material online such as material submitted for the purpose of maintaining a public register.  The existing rules only allow public bodies to issue paper copies or make the material available for inspection at their premises.    Widening the scope to the internet will enable greater public access to information and provide greater transparency and will save time and expenses for both the public bodies and individuals.

  1. Accessible Formats for Disabled People

Individuals will be allowed to make a single copy of copyright works in accessible formats for the personal use of a disabled person.  Furthermore, charities will be able to make multiple copies of copyright work for disabled people.   Therefore, if any type of copyright work is not available commercially in a format that can be accessed by a disabled person, the individual or charity may make an accessible copy for them.

Implementation

The Research and Private Study, Public Administration and Accessible Formats for Disabled People statutory instruments were implemented on 1st June 2014.

The Joint Committee on Statutory Instruments had further questions about the Private Copying and Parody exceptions and wanted to spend more time considering them.  This has meant that the implementation of these two statutory instruments has been delayed and at the time of writing the exact date of their implementation is unknown.

 

STOP PRESS: New Exceptions to Copyright Law

 Three instruments for the exceptions for research and private study, public administration and accessible formats for disabled people came into force on 01 June. However the Joint Committee on Statutory Instruments had additional questions on further exemptions.  These were later approved by Parliament on 29 July and came into force on 01 October 2014. They are as follows:

  1. Personal Copying for Private Use

Personal copies strictly for own private use is now allowed as long as the user owns the original themselves.

  1. Caricature, Parody or Pastiche

Use of someone else’s copyright work for these purposes so long as the use is proportionate and fair will now be permitted.As mentioned in our previous article it is likely that there will still be significant dispute as to what constitutes caricature, parody or pastiche and what is fair and proportionate use and each case will have to be judged on its merits.

  1. Quotation

This extends the existing exception for ‘criticism or review’ and is permitted as long as there is sufficient acknowledgment of the quotation and the use is fair.


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