The UK Intellectual Property Office has published its proposed changes to the copyright exceptions in a document entitled Taking Forward the Gowers Review of Intellectual Property. Responses are sought by
While the focus for many with an interest in technology has generally been on format shifting, all of the proposed changes have IT elements which can affect the working life of SCL members. Those involved in advising producers of copyright protected work are advised to read the entire document but the Executive Summary, the Background and the advice on responses is reproduced below. It may be wise to consider too the recent call from the EU Commission for responses on its latest public consultation (see here for more), which at least in part covers similar ground.
EXECUTIVE SUMMARY
1. The Gowers Review of Intellectual Property (“the Gowers Review”) reported in December 2006. The Government announced, as part of the December Pre Budget Report, its intention to take forward the recommendations made to it.
2. A number of the recommendations from the Gowers Review suggest changes to copyright exceptions or the introduction of new exceptions. These changes concerning educational use, libraries and archives, format shifting and parody, are intended to provide more balance and flexibility in the intellectual property (“IP”) system by enabling consumers to use copyright material in ways that do not damage the interests of rights holders. They are also designed to provide clarity concerning the extent of the exceptions in the face of changing technologies.
3. This consultation considers how the Gowers recommendations on exceptions to copyright might be implemented in the
Educational Exceptions
4. Two changes to the educational exceptions are proposed. The first is to amend section 35 of the Copyright, Designs and Patents Act 1988 (“CDPA”) which currently allows the recording and showing of broadcasts to students physically present at an educational establishment. The expanded section would allow distance learning students to receive and view these recordings remotely. The consultation paper considers the following issues:
• Should the exception just apply to traditional broadcasts or be expanded to on-demand communications?
• Who should have access to the recordings that are provided remotely?
• How to ensure that material that is communicated to distance learning students is not communicated to others, including through secure environments?
5. The second proposed change is to section 36 of the CDPA which allows educational establishments to copy (usually by photocopier) passages from published works and provide hand outs to students. It is proposed that educational establishments be able to communicate such passages using interactive whiteboards and electronically to distance learners. This proposed change raises the following issues:
• What limits should be placed on communication of material using interactive whiteboards and to distance learners? Should it be limited to secure virtual learning environments? Should regular email be allowed?
• How would we prevent onward communication of material to persons not authorised to receive it?
• Should the exception continue to be limited to literary, dramatic and musical works, or should teachers be able to take advantage of technologies that use a range of different works, including extracts from films, sound recordings and broadcasts?
Format Shifting
6. It is proposed to create a new exception that would allow consumers to make a copy of a work they legally own, so that they can make the work accessible in another format for playback on a device in their lawful possession. The exception would only apply to personal or private use. The owner would not be permitted to sell, loan or give away the copy or share it more widely (for example in a file sharing system or on the internet). Multiple copying would not be allowed. The development of this exception raises the following questions:
• What classes of works would it apply to? Sound recordings and films or works of all kinds?
• Exactly what acts would be non-infringing? What is meant by personal and private use?
• How many format shifts would be allowed? Should consumers be allowed to format shift to a range of play back devices and to format shift again when certain technologies become obsolete?
• Would the exception apply to works created or purchased after the exception was introduced or would it be acceptable to format shift back catalogues?
Research and Private Study
7. A number of policy issues are identified in response to the recommendation that the exception for research should be expanded to cover all forms of content, not just literary, artistic, dramatic and musical works:
• What benefits can the expanded exception be expected to deliver?
• Should the expanded exception cover both research and private study?
• Should all forms of content be covered?
• Should the exception cover all fields of study or just specific areas?
• What might be the impact of the expanded exception on rights holders and other affected parties?
• What action, if any, should be taken to address possible concerns about misuse of the expanded exception?
Libraries and Archives
8. Section 42 of the CDPA currently allows prescribed libraries or archives to make a copy of a literary, dramatic or musical work held in their permanent collection for the purpose of preservation and replacement. It is proposed that the exception be expanded to also allow copies of sound recordings, films and broadcasts to be made. It is further proposed that these prescribed bodies be able to format shift to address the problem that occurs where works are held on unstable media, and that more than a single copy be permitted where successive copying may be required to preserve permanent collections in an accessible format. This proposal raises a number of issues:
• What would be the impact on right holders, and beneficiaries, if section 42 was expanded to cover all classes of works?
• Is it necessary to place restrictions on the number of copies that can be made by prescribed bodies?
• Should the exception be available to museums and galleries as well as prescribed libraries and archives?
Parody
9. The paper considers whether a new exception for parody should be introduced. A fair dealing style exception is proposed. The following issues arise:
• What impact would the exception have? What problem would it address? What costs or benefits would accrue to right holders and users of copyright works?
• Could an unlimited exception undermine the interests of owners of copyright in the underlying work by allowing the advertising or the endorsement of products which are contrary to the commercial interests of the copyright owners?
• Should there be a requirement to acknowledge the underlying work and its author?
• It is necessary to have a definition of parody, caricature or pastiche?
• Is there any reason to exclude particular classes of work from the exception or should it apply to all?
• Should it be an exception to all exclusive rights (e.g. reproduction, communication to the public, distribution and rental) of the copyright owner or only some?
• Should the exception only apply where the underlying work has been made available to the public, and should the parody be limited to the underlying work or allow broader social commentary?
General
10. In relation to each of the proposed or expanded exceptions:
• Should the corresponding provisions of the CDPA relating to performers’ rights be amended?
• Should the beneficiaries of the exceptions be able to make use of the remedy in the CDPA where technological protection measures prevent the exercise of permitted acts?
• Do you agree with our assessments of the three step test?
• What impact would the expansion of the existing exception or introduction of a new exception have? What costs or benefits would accrue to right holders and users of copyright? Please comment on the partial impact assessments contained in Annex C and provide relevant evidence of the potential impacts of the proposed changes to copyright exceptions, including information on the financial or economic impacts.
BACKGROUND
THE GOWERS REVIEW OF INTELLECTUAL PROPERTY
11. The Gowers Review was commissioned by the Chancellor and the Secretaries of State for Trade and Industry, and Culture, Media and Sport in 2005. The Review was led by Andrew Gowers (former editor of the Financial Times) with assistance from a team of civil servants. The terms of reference for the Review were to consider:
• the way in which government administers the awarding of IP and its support to consumers and business;
• how well businesses are able to negotiate the complexity and expense of the IP system, including licensing and enforcement issues; and
• whether the current IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable.
12. Andrew Gowers presented his report to the Government in December 2006. The Government welcomed the report and announced, as part of the December Pre Budget Report, its intention to take forward the recommendations made to it. The report and supporting documents can be viewed on the Treasury website: http://www.hm-reasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm
13. The Gowers Review found the IP system to be performing “broadly satisfactorily”. While not in need of a radical overhaul, the Review did find that aspects of the IP system should be reformed to serve better the interests of all users (business and consumers included). A number of recommendations were made to:
• make aspects of the IP system clearer and fairer for consumers and other users of IP, by amending a number of exceptions to IP rights;
• improve the enforcement regime, with more focus on IP crime and looking at the way disputes are handled;
• reduce costs for business, by introducing streamlined processes for obtaining IP rights, greater IP awareness and innovation support services and putting more emphasis on alternative dispute resolution; and
• ensure that IP policy is strategically formulated (including the establishment of a new Strategic Advisory Board for IP Policy).
14. The recommendations affecting exceptions to copyright are part of the first category and are part of an overall package of recommendations designed to encourage greater creativity and innovation, essential to the UK economy, by ensuring that the instruments, operation and governance of the IP system is balanced, flexible and coherent. These concepts are considered further in the section “Copyright Framework”.
15. The recommendations considered in this consultation paper include changes to copyright law that will:
• enable schools and universities to make the most of digital technologies and facilitate distance learning;
• allow libraries and archives to use technology to preserve valuable material before it deteriorates or the format it is stored on becomes obsolete;
• introduce a format shifting exception to allow consumers to copy legitimately purchased content to another format, for example CD to MP3, in a manner that does not damage the interests of copyright owners; and
• provide a new exception for parody.
16. These recommendations are set out in the next section and considered in detail in the following chapters.
RESPONDING TO THIS CONSULTATION
The focus of this consultation
17. This consultation paper is solely concerned with those recommendations of the Gowers Review which were aimed at changing exceptions in UK copyright law (with the exclusion of those recommendations impacting on the European Commission, which are being pursued separately). The focus of this consultation is, therefore, specific and not directed to the
18. The Gowers recommendations under consideration are:
Recommendation 2: Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the CDPA.
Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.
Recommendation 9: Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution, of media.
Recommendation 10a: Amend s.42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.
Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.
Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.
How and when to respond
19. We welcome comments from interested parties on the issues, suggested options and specific questions identified in each chapter and on the attached impact assessments. We are particularly interested to receive evidence (including financial information where relevant) in support of your views as this will assist us in assessing the impact of the proposed changes. It is essential that we ensure that the benefits outweigh the costs of each proposal.
20. It would be appreciated if you could structure your comments by reference to the relevant Gowers recommendation. Where you refer to a specific aspect of the consultation document please provide a page number.
21. Please send responses by
Gowers Copyright Consultation
Copyright and Intellectual Property Enforcement Directorate
Concept House
NP10 8QQ
Email: copyrightconsultation@ipo.gov.uk
Fax: 0044 (0) 1633 814 922
Tel: 0044 (0) 1633 814 912
22. Please note that this is stage one of a two part consultation process. There will be a further opportunity to make your views known when we consult on a draft statutory instrument in due course.
23. This consultation document has been prepared by officials at the UK Intellectual Property Office (“UK-IPO”) in consultation with other government departments. It contains a number of proposals for implementing the Gowers recommendations concerning copyright exceptions. No decisions have yet been taken by the Government on these proposals and as such the document does not constitute official government policy. The preparation of this document has also been informed by an extensive series of stakeholder meetings. We would like to thank those who contributed
Who is being consulted?
24. Copies of this consultation document have been sent to the organisations listed in Annex A. Further copies, including large print and Braille versions, may be requested from the UK-IPO by contacting Joanne Holley, tel: 0044 (0) 1633 814 912; e-mail: copyrightconsultation@ipo.gov.uk
25. This consultation document has been prepared in accordance with the Government Code of Practice on Written Consultations. If you have any comments or complaints about how this consultation process is being handled, please contact the UK-IPO Consultation Co-ordinator. Information on the Code of Practice and contact details for the Consultation Co-ordinator are set out in Annex B.
