Idiots assemble? or the beginning of the break down before copyright law is corrected?

A suite of new and revised exceptions to copyright law will be coming into law in the UK in June and October 2014, but will they make copyright law “fit for purpose” in the digital age?

In our digital age copyright works such as quotations, images, and data are constantly re-appropriated by people far removed from the original owners. Use of other people’s copyright work conflicts with a principle at the heart of copyright law: it is an infringement of copyright to copy the whole or a substantial part of another’s copyright work without their permission.

Several new exceptions to copyright infringement are coming in to force this year. While most are focused on non-commercial use of copyright works, the exceptions have been heralded as a commercial boon for everyone from universities to the creative sectors. In an Intellectual Property Office press release the benefits of three exceptions were valued at, at least, £250 million over the next ten years.

The parts of the private sector most likely to be impacted are the creative, technology, and allied sectors (such as music, marketing and advertising). For these industries, the shake up of use of copyright work for the purposes of quotations and parody will liberalise their use of third party material.

There have long been limited exceptions to copyright infringement to enable use of other people’s copyright work. However, in the UK the exceptions were primarily limited to number of “permitted uses” into which your use would need to fit in order to take advantage of the exceptions, for example, if you were writing a review of a book you were permitted to copy sections of that book for the purpose of your criticism and review. In the last 10 – 15 years these exceptions have become increasingly ill-fitting.

The exceptions are scheduled to come into force in two waves. The first wave hit the legislative shores on 1 June 2014. The second is due on 1 October 2014.
Research, Public Administration, and Disability Exceptions – 1 June 2014

These exceptions are characterised by their focus on widening existing purpose/situational exceptions. They are focused on non-commercial use but may still boost the UK economy.

• Research, Education, Libraries and Archives: this includes an exception that enables researchers to copy copyright work for the purpose of undertaking data analysis, subject to the following requirements:

1. The research is non-commercial;
2. The researcher has “lawful access” to the original work (for example, if licensed, they have a license to access the work);
3. The copying is done for the purpose of “electronic analysis”; and
4. Sufficient acknowledgment is made of the original work.

• Public Administration: broadens the existing exception to permit public bodies to share third-party information online as well as providing paper copies.

• Disability: permits people with disabilities (or educational establishments and non-profit organisations for use by people with such disabilities) to make accessible copies of copyright works for personal use. This is a qualified exception because it is not available if accessible copies are already available on reasonable terms. It is an expansion of an existing exception for people with visual impairment.

Private Use, Parody and Quotation Exceptions – 1 October 2014

These exceptions, currently scheduled for 1 October 2014, are expected to make a bigger impact. They are exceptions for:

• Making personal copies for private use: this is the exception which enables you to back-up your iTunes music collection. It will not be an infringement of copyright to make a copy of a work for the purpose of your own private use. To fall within this exception it will be necessary (a) to have initially obtained a copy of the original work lawfully and (b) for the copy to be made for a non-commercial purpose. This does not necessarily stop (for example) iTunes or others limiting the number of copies that a user can hold, however, their limits must be reasonable. If you transfer your copy of a performance to another person that will still constitute infringe of copyright.

• Parody: this is a new exception for the UK and it provides that use of a copyright work for the creation of a work of parody, caricature or pastiche will not infringe the copyright in the original work (including works of literature such as books, and performances). The use of the original work must be “fair dealing” (for more on what “fair dealing” means see page 10 of the Intellectual Property Office guide).

• Quotation exception: this is also a new exception for the UK and it enables the use of quoted copyright works without the author’s permission not to be treated as infringements of copyright, subject to certain requirements: (i) the original work must be publicly available, (ii) the use of the quotation is “fair dealing”, (iii) the amount of the original work taken is no more than required, and (iv) sufficient acknowledgment is given (unless it is not possible to acknowledge the source for reasons of practicality or otherwise).

Until 8 May 2014 these exceptions were expected to come into force on 1 June 2014. However, they were held back to enable the legislative committee to have more time to consider the issues raised by them. The exceptions have now been re-published with a new date of 1 October 2014 with no other amendments.

The IPO have published a range of guides on the changes to the Copyright Laws, which are available to view and download here: https://www.gov.uk/government/publications/changes-to-copyright-law 

We will keep you updated on the progress of these remaining exceptions and feed back on how they are being implemented in due course.

And, if you were wondering about the title for this blog, it is taken from two quotes about copyright law:

“Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble.” Mark Twain (retrieved from here).

and

“Copyright law is totally out of date. It is a Gutenberg artifact. Since it is a reactive process, it will probably have to break down completely before it is corrected.” Nicholas Negroponte, Being Digital, 1995 (also from here).