This consultation is intended to bring greater flexibility to the UK copyright regime by strengthening existing and introducing some entirely new exceptions.
The point of copyright law is to engineer a market in creative expressions and in doing so the law tries to balance the competing interests of creators, publishers and the general public. In this mechanism, exceptions to monopoly rights protect a range of socially-important activities, such as education or reportage. They operate as a kind of safety valve.
We have not reproduced the entire consultation document because its 106 pages long. Instead, extracted below is the more-manageable Executive Summary, which outlines the consultation’s concerns. The Open Rights Group submission will concentrate on the ‘format shifting’ and ‘parody’ exceptions but you’re invited to leave comments on any aspect of the consultation. Scroll down to read and comment on the questions, or click here to get the full document.
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 UK. A number of options are set out in this paper and your views are sought on the specific questions contained in each chapter and on the issues generally.
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.
