CHANGES WE CAN EXPECT TO COPYRIGHT LAW NHSS Event, 24/10/11

HARGREAVES REVIEW Started by David Cameron Allegedly influenced by a personal friend, a senior figure in Google UK, who told him that Google would never have got off the ground in the UK because of the UK’s restrictive fair dealing provisions compared to the USA’s fair use provisions Fair dealing versus fair use; the former is precise/restrictive in terms of purposes – fair use is not; and in any case, EU law would have to be changed, not UK law, if we wanted to move to fair use But that’s not the reason why Google did not start up in the UK! Nonetheless, David Cameron asked Hargreaves to undertake a review of fair dealing versus fair use, but also of other ways the law can be updated to improve competitiveness Hargreaves reported in May 2011: “Digital Opportunity: A Review of Intellectual Property and Growth”

HARGREAVES’ RECOMMENDATIONS Be evidence based, not lobbying based Rejected (rightly) the idea of fair use Set up a so-called Digital Copyright Exchange for easy licences Extended collective licensing for all orphan works Introduce a raft of new or extended exceptions, including format shifting, parody, fair dealing in all media, library preservation and archiving, extend educational exceptions to cover networked materials Contracts must never over-ride exceptions IPO should be able to give legal advice Noted complaints about RROs Change the name of the Patents County Court to Intellectual Property County Court, able to hear small claims cases involving copyright infringement

THE GOVERNMENT ACCEPTED PRETTY MUCH EVERYTHING It is not pursuing fair use It agrees that policy must be evidence-based; UKIPO will set out guidance on what constitutes evidence Hargreaves was vague about DCE, and so is the response. Gov’t is committed to putting Crown Copyright materials onto the exchange, and will encourage other public bodies to do so. Persons will be commissioned to facilitate the creation of a viable financial model for the DCE and to develop a functioning system in This may be kicking the idea into the long grass.

MORE…. Gov’t is aware of concerns that licensing bodies are “heavy-handed, misleading or unfair” in their practices, and so is proposing to publish minimum standards for voluntary codes of conduct for RROs, and will get backup powers to impose codes on recalcitrant RROs. This will be controversial with RROs, who will no doubt not wish Gov’t to interfere with their practices. It could be extremely useful for licensees such as NHSS, even if it doesn’t go as far as it could in making it a criminal offence to use unjustified threats of infringement action to get people to stop copying, or to sign up to a licensing scheme they in fact don’t need.

MORE….. Gov’t agrees that the widest possible exceptions to copyright should be adopted. Gov’t is opposed to any levies associated with such exceptions Gov’t says that contracts must not be allowed to over-ride this by reimposing restrictions – cf. Irish, Belgian, Portuguese Copyright Acts Gov’t supports an exception, proposed by Hargreaves after lobbying by especially BL, for text and data mining, probably through EU legislation – this is controversial, especially with publishers Format shifting is included here – but this too is controversial, especially with music publishers. Transfer from (say) a CD to (say) an iPod is SO common, and the fact that it is currently illegal simply makes people ignore/have contempt for copyright law.

INTELLECTUAL PROPERTY COUNTY COURT This has already been implemented Can hear copyright infringement cases up to a maximum of £500,000 No cases so far though!

FINALLY MIGHT drop “three strikes and you are out” provisions of DEA (if DCE goes through), though still retaining other bad aspects of DEA regarding liability of those who provide wifi services Libraries and Universities are lobbying Ofcom to ensure that are excluded from the provisions of the DEA – watch this space! IPO to develop plans for a “copyright opinions service” in early 2012, especially for schools and educational institutions worried that they might be infringing White Paper with proposed legislation in Spring 2012

TIME FOR QUESTIONS/DISCUSSION!