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Response to the Gowers2 Consultation

Taking forward the Gowers Review of Intellectual Property: Second stage of commentary on copyright exceptions

Response to the Intellectual Property Office Consultation

The Open Rights Group (ORG) has consistently responded1 to the Government's consultations on copyright exceptions and welcomes the opportunity to contribute to the second stage of the Gowers Review.

This response focuses on the proposal regarding fair dealing provisions.

ORG welcomes the expansion of fair dealing to cover film and sound but strongly objects to the limitations included in the proposal. This is another example of the Government failing to provide sufficient flexibility or balance to maintain copyright's legitimacy.

In particular ORG opposes the proposed amendment to the Copyright, Designs and Patent Act 1988 as quoted below.

“(1A) Fair dealing with a sound recording, film or broadcast by a member of an educational establishment for the purposes of research for a non-commercial purpose authorised by that establishment does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.”

This amendment would prevent private copying for the purpose of non-commercial research and private study of sound recording, film and broadcast by consumers. This contradicts the Gowers recommendations.

Excluding consumers

ORG also objects to the justification to limit fair dealing with sound recordings, film or broadcast to members of an educational establishment (paragraphs 9 to 12, Executive Summary). It seems that the “potential for misuse” was the reason for the Government not to follow the Gowers1 recommendation. We do not see this as a valid reason and also criticise that this misuse has neither been defined nor assessed.

ORG is concerned that the Government, in limiting the fair dealing, denies the general public the right to fair dealing sound recording, film and broadcast for the purpose of non-commercial research and private study.

If the Government decided to limit the fair dealing provision as suggested it would ignore the importance of non-authorial works for study and research.

Educational Purposes

Furthermore, ORG is concerned that fair dealing with regard to sound and film will only refer to those who are “authorised by” an educational establishment. Many citizens who conduct non- commercial research and private study are not members of an educational establishment as they may only be interested in local history or environment.
In fact, the consultation makes reference to this fact (paragraph 182, page 28):

182. Many respondents believed that researchers, the general public (e.g. local historians) and society as a whole would benefit from a wider exception (e.g. museums, galleries and heritage sites would be permitted to research their collections). This would improve the UK’s research base, encourage creativity and support Government’s ‘lifelong learning’ campaign.

Entertainment Purposes
It remains unclear why the Government assumes that copying for purely entertainment purposes poses a high risk to the normal exploitation of the works covered by the the fair dealing provision.


The public have the right under the Copyright Act 1911 to fair dealing with a literary, dramatic, musical or artistic work for the purpose of non-commercial and private research. It is incomprehensible that sound recording, film and broadcast would be more at risk of copying for “purely entertainment purposes” than literary, dramatic, musical or artistic works as suggested by the Government.

The IPO itself acknowledges in The Way Forward2 that “it is important that these exceptions do not conflict with the normal exploitation of the work but that they continue to provide access to knowledge for society as a whole.”

The Government should adhere to these principles when amending current exceptions to copyright for the benefit of the public.

“Potential for misuse” by consumers
The Government has failed to both define the “potential for misuse”3 and to assess the risk of this happening. It seeks to minimise the “potential risk of unauthorised use” which can be seen as an attempt to assure rights holders that action is taken.4

A great number of the works people should be able to use under a more flexible fair dealings provision would not be commercially available and therefore, by definition, cannot deprive rights holders of any economic value.

The small 'risk' that a user copies material obtained in a library for entertainment rather than exclusively for knowledge purposes should not be used as an excuse to deny all users the right to fair dealing with copyrighted works.

Furthermore, this 'risk' seems to be minimised by the time-shifting exceptions (Copyright etc. Act 1988, Section 70). The exception has had no considerable impact on the normal exploitation of music and film that is broadcast. Similarly, it is unlikely that a potential misuse of the fair dealings provision on non-commercial research and private study would have an impact on the normal exploitation of work.

ORG believes that the risk of consumers potentially abusing the fair dealing provision does not justify the Government denying the whole society the right to fair dealing with sound recording, film or broadcast for the purpose of non-commercial research and private study.
ORG urges the Government to conduct a full economic impact assessment of the matter.

About the Open Rights Group
The digital age is transforming society: bringing us greater democracy, transparency and new creative possibilities. When these freedoms are under attack, the Open Rights Group is there to defend them. Founded in 2005 by 1,000 digital activists, ORG has become the UK’s leading voice defending freedom of expression, privacy, innovation, consumer rights and creativity on the net. Getting into the political trenches in the UK and EU, we mobilise our supporters to stop bad laws. Working closely with other campaign groups, we lobby government and talk to the media whenever our rights are threatened.
ORG is a non-profit company funded by donors.

We have a core staff backed by an Advisory Council and Board of Directors, stocked with technology experts and campaigners, as well as a wider network of campaigning volunteers.

 

1 See our response to the first stage of this consultations at http://bit.ly/org-exceptions1 – and to the original Gowers Review at http://bit.ly/org-gowers

2 The way ahead – A Strategy for Copyright in the Digital Age, Intellectual Property Office, October 2009, pg.28

3 Taking forward the Gowers Review of Intellectual Property: 2nd Stage Consultation on Copyright Exceptions, Intellectual Property Office, December 2009, pg.3

4  Ibid. pg. 28 Page 2 of 3    Taking Forward the Gowers Review: Second stage copyright exceptions