More freedoms to use copyrighted works: it’s not the end of the world

Yesterday the Government announced its plans to implement the recommendations of the Hargreaves Review – namely, how it will put in place various exceptions to copyright that permit more uses of copyrighted work. Here is the detail (pdf).

These were reforms recommended in the report by Professor Hargreaves in May 2011. (See our write up from the time in Comment is Free). After that, the Government announced its intention to implement his proposals and ran a three month consultation on the plans. You can read our response to the consultation here, and a full list of responses is available at the IPO website. 

Following these two consultations, the government have refined how the ideas will be put into practice. The result is a pretty reasonable set of proposals that will permit all sorts of uses of works that currently sit on the wrong side of the law.

There has been some of the usual alarmist bluster in response already – for example, ITN have suggested the proposals will ‘irrevocably dismantle the UK’s intellectual property framework’. 

In reality, it will do no such thing. These are some pretty modest proposals in truth. Some of them will simply bring us line with what plenty of other countries already permit. Some simply help the law match public expectations and existing practices. The IPO seem to have done a good job of listening to some of the concerns about the scope of the exceptions and have narrowed some of them accordingly.

We think that the proposals will help encourage greater use of copyrighted work, encouraging people to be creative, and to engage with the cultural works around them. This won’t, we don’t think, come at the economic expense of the creators of the original work.

Here are some initial notes on some of the proposed exceptions. 

Private copying

Here are the proposals:

“People will be permitted to copy content they have bought onto any medium or device that they own, strictly for their own personal use (such as transferring their music collection from CD to iPod). This will not allow sharing copies with others but it will allow consumers to copy material to and from private online cloud storage.”

‘Value added’ cloud services will still require licenses, and the copying can only be for private and personal use (meaning it doesn’t allow sharing between friends or family, and there is a very cautious approach to access to copies that do not have TPM that needs more explanation.

People will be able to request copies that allow them to take advantage of the exception where TPM (Technical Prevention Measures) prevent them doing so. The Government says that they do not want “this provision to undermine the reasonable application of TPM by rights holders, particularly in new business models”.

This leaves some services in a bit of a grey area. For example, when ‘buying’ a film or tv show over on Blinkbox (as I have done to watch ‘Veep’), a a purchase actually means access to a stream. This is permanent access – one presumes so long as Blinkbox exists. If I have ‘bought’ the Veep series, could I write to the Secretary of State to ask for a copy for personal back up purposes? It could be that the exception leads to services such as Blinkbox modifying their terminology, from ‘buy’ to something like “long term rental” or something similar.

There will also be no ‘iTax’ – meaning there will be no levy involved that would see costs added to blank media or cloud services to offset any harms caused by private copying. The reason is that the narrowness of the provision means there will be minimal or no impact on the revenues of rights holders. 


We called in our responses to the consultations for a new exception to permit parody, and set up the site to support that. We are delighted to see the government’s intention to “allow limited copying on a fair dealing basis for parody, caricature and pastiche.’ They confirm that “existing protection for moral rights, including the right to object to derogatory treatment, will be maintained.”

This will be a fair dealing exception. This basically means the legal test, as stated in the Government’s response, is “whether a fair minded and honest person would have dealt with the copyright work in the manner in which the defendant did, for the relevant purpose”. One aspect of this is the ‘degree to which a use competes with exploitation of the copyright of the copyright work…If a use…acts as a substitute for it, and thus affects its value, then it is less likely to be fair”.

One interesting side effect of this is that it should incentivise licensing. This is because the availability of a license to use the work will be a factor in whether use of the work without a license for parody is ‘fair’ under the fair dealing proposals. So this should not undermine existing licensing arrangements, for example. It makes it harder, though, to refuse to license because you simply don’t like the intended use.

There are also proposals for lots of other exceptions too – for quotation to enable academic reports, tweets and blogs can reference copyright works (with acknowledgement); to enable non-commercial researchers to use computers to read and analyse data; and to facilitate wider educational use of copyright works (so that teachers, for example, can use material on white boards).

It’s a detailed set of plans. I’d recommend taking some time out of your christmas holiday to read it in full.

The proposed reforms, implemented carefully, shouldn’t result in a weakening of creators’ positions or their levels of remuneration. But they will encourage more socially and economically useful activity. And the Government will review the effects of the plans after they have been implemented, taking into account developments such as the planned copyright licensing hub.

So this is not the end of the world for creative industries. In fact, it should be good news, reflecting public expectations and facilitating greater engagement with copyright works. These look, to us, like some pretty common sense reforms for the digital age.

The Government aims to introduce these “through the smallest possible number of Statutory Instruments” and hope to have them in place by October 2013.