Copyright stakeholders will be waking up in January to some developments in late December that may appear to mark the beginning of a new phase in copyright.
In the last year or so there has been a real heightening of tension in the battle over copyright, with right holders seeking stronger enforcement measures to protect their revenues from leaking away over the internet, and users of protected material lobbying extensively for broader exceptions to copyright to fuel the growth of digital and internet business models. There have been heated exchanges in the US about SOPA, in the European Parliament about ACTA, and in Ireland about the enforcement S.I. (dubbed “Ireland’s SOPA”). There has also been an intense process of Government consultation in the UK and on a more modest scale in Ireland about whether copyright reform is needed in order to boost innovation, “reform” in this context largely focusing on the expansion of exceptions to copyright.
On the enforcement side of the equation, it appears that the European Commission has given up on its quest to have ACTA ratified in Europe. The multi-national Anti-Counterfeiting Trade Agreement – which contains enhanced IP enforcement measures – was overwhelmingly voted down by the European Parliament on July 4. The Parliament refused to ratify it on the grounds that it could potentially diminish online privacy rights and freedom of expression of European citizens. The European Commission had been one of the main players in negotiating the Agreement. Recognising the level of disquiet, in May the Commission had made a formal request to the Court of Justice for a ruling on whether the Agreement was compatible with the EU Treaties. After the vote in the Parliament, Trade Commissioner de Gucht confirmed that “The European Commission will continue to seek the legal opinion of the European Court of Justice…”. It was expected that – depending on the outcome – the matter might be put before the Parliament a second time. However on December 19, the Commission withdrew its request for a ruling. The Commission website dealing with ACTA – under the auspices of DG Trade – has not yet reported this, but the speculation is that the Commission feared a negative assessment by the Court. Whatever the reason, ACTA now seems to be dead in the water, at least in Europe.
On the other side of the equation – the question of copyright exceptions – the latest development in the UK copyright reform process was announced on December 20. New exceptions were certainly on the cards. The surprise is that the proposed changes look more modest than many expected. They are as follows:
Private copying: there will be a limited private copying exception which will allow consumers who have bought or own a copy of a work to copy it for personal use. This is intended to facilitate format shifting between devices and cloud storage. The exception will not apply to rented borrowed or streamed content.
Quotations: there will be an expanded exception for the fair use of quotations when accompanied by an acknowledgement. This exception already exists in Irish law.
Parody caricature and pastiche: there will be a new “fair dealing” exception for these acts of exploitation.
Research and private study: the existing “fair dealing” exception for non-commercial research and private study will be extended to all types of work. This is already the case in Ireland but with the important distinction that the Irish exception is broader in another respect too, in that it is not confined to non-commercial research.
Data and text mining: there will be a new, carefully drawn exception to permit these aids to research in a non-commercial context. It will allow a person who already has the right to access a work – whether under licence or otherwise – to copy it as part of a technological process of analysis and synthesis of the content.
Education: the educational exceptions will be extended. There will be a new non-commercial “fair dealing” exception for “teaching” which will permit the use of works by way of illustration to the extent necessary in order to teach about a subject. This will not permit general classroom copying, for which a licence will still be required. It will be made clear that the educational exceptions will apply to facilities for distance learning.
Disability: the Government will develop existing proposals to broaden and simplify disability exceptions, to apply to all disabilities and all types of copyright work.
Archiving and preservation: it will be made clear that cultural institutions may copy all types of work in their collections for archiving and preservation purposes.
Public administration: existing exceptions for use of works for public administration will be broadened to include making available on the internet.
The proposals are clearly crafted to stay within the limits prescribed by the Copyright Directive. There is nothing ground-breaking in them, although it is probably true to say that just a year ago the idea of moving the exceptions at all might have appeared radical. Against the background of more sweeping developments in Canada last summer, the changes seem conservative. Right holders will probably feel they have lost less than expected, and users that they have not gained as much as they would have liked.
The proposals will represent an interesting reference point for the Irish Copyright Review Committee. With the Canadian legislation leading a charge and the UK review process open, anything has looked possible over the last year. However the UK is now committed to a position that does not appear to stretch the boundaries of its European commitments. This may constrain the imagination of the Irish Review Committee!
Blowing in the wind? Well there was certainly a sense in 2012 that no one was steering the ship and that it might easily end up on the rocks in the virtual world. In bringing wide-ranging consultations to a swift and decisive conclusion, the UK is contributing to the idea that a stable outcome is possible. In Europe, the Digital Agenda is driving progress. The Orphan Works Directive has been adopted. The Proposal for a Directive on collecting societies is on the table during the Irish Presidency. Also on the Commission agenda are a review of the enforcement directive and examination of “notice and action procedures” for ISPs. Position papers have been pouring out of the Commission in the last two years. But real progress is very slow, with deadlines for action routinely missed, and the whole process weighed-down by intense lobbying. Witness the ACTA debacle.
