Hargreaves: Changes to Protection of Copyright Protected Works

In its response, the Government state that the current copyright legislation appears to hinder the reasonable use of copyright protected works and is outdated in the digital age. The Government therefore intends to change the current system to allow certain ‘permitted acts’ in respect of copyright protected works.

Key proposals

1. Private Copying

Few people are aware that under the current system it is illegal to download a legally-purchased CD onto a laptop, smartphone or MP3 player. These acts of format shifting will now be allowed under the UK’s first private copying defence. Consumers will be permitted to copy content they have purchased onto any medium or device that they own, as long as it is strictly for their own personal use (such as transferring their music collection from CD to iPod). The defence will not extend to sharing copies with others but will allow consumers to copy material to and from private online cloud storage. Cloud services which provide functionality other than storage (such as music streaming) will not be able to benefit from the private copying defence and will continue to require relevant licences from rights holders.

Interestingly, the Government has decided that it will not impose a levy or duty on consumers in order to compensate rights holders for extending the permitted use of their works. Their reasoning is that there is likely to be a minimal impact on sales and the right to make personal copies can be factored in to the price at the point of sale.

2. Quotation

The current system allows quotations (or perhaps more accurately “extracts”) of copyright protected works to be quoted for the purposes of criticism, review or reporting current events, as long as the use of that work is regarded as fair dealing and there is sufficient acknowledgment of the author. The proposed changes will create a more general permission for the quotation of copyright protected works, as long as the use is fair and its source is acknowledged. Accordingly, minor uses of copyright protected works, such as references and citations in academic papers, quotation as part of educational activities and short quotations on internet blogs or in tweets, will be permitted as long as they are fair. The copying of photographs for the purposes of news reporting will continue to fall outside the scope of fair dealing.

3. Restricting Contracting-out

Due to long standing concerns that the remit of the copyright regime might be fettered by licensing terms, the Government has determined that to the extent it is legally allowed, permitted acts cannot be undermined or waived by contract. The aim is to ensure that the permitted acts have the full effect for which they were intended and are not watered down by copyright owners through contract.

4. Parody, caricature and pastiche

The Government will introduce a fair dealing exception to allow limited copying for parody, caricature and pastiche. The requirement that any parody use of a work be ‘fair dealing’ is an additional restriction which ensures that the exception is not misused, and will preclude the copying of entire works where such taking would not be considered fair (for example if such works are already licensable for a fee). The existing moral rights regime will remain unchanged, so that creators will be protected from damage to their reputation or image through the use of works for parody.

 What has been the reaction to the proposals?

The introduction of a format shifting exception is no surprise; it has long been said that the law is playing catch-up with practice. However, rights holders will need to consider whether the use of Technological Protection Measures on CDs and DVDs which restrict or limit the copying of material will be compatible with the new exception. Geoff Taylor, the chief executive of the BPI, has said that the record companies support a “sensible updating” of copyright law as they want consumers to be able to enjoy their music legally across the spectrum of their devices.

Not all reaction has been positive though. A consortium of the world’s largest news agencies including Associated Press, Reuters, British Pathé and the Press Association have delivered a Letter Before Claim to the business secretary Vince Cable, raising serious concerns about the proposals, which they claim will weaken copyright law and the way in which these laws are to be introduced. They are particularly concerned about the introduction of the general quotation right as they feel that this will remove many instances where rights holders can currently be paid for their work. The consortium is also concerned that the changes are to be introduced into UK law through statutory instrument and not via a full Act of Parliament and will therefore, avoid the full scrutiny of Parliament. The consortium has said that unless the matter can be resolved to their satisfaction, they will seek a judicial review from the High Court. We must now wait and see whether the Letter Before Claim provokes any amendments to the current proposals.

What happens now?

The intention is that draft legislation will be published early 2013 with the changes to come into effect in October 2013. However, despite the concerns that have been raised following the publication of the Government’s report, no further formal consultation is contemplated.

This article was written by Paul Herbert, Partner, Media, with assistance from Lara Johnson.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606 and ask for your usual Goodman Derrick contact.