As part of a consultation process, the United Kingdom (UK) Intellectual Property Office has published Taking forward the Gowers Review of Intellectual Property: Second stage consultation on copyright exceptions. The document is notable more for what it does not take forward than for what it does.

FORMAT SHIFTING

The recommendation in the Gowers Review was to introduce a limited private copying exception for format shifting works with no accompanying levy for consumers. In its first stage consultation, the IPO was not concerned that Article 5(2) of the Copyright Directive (2001/29/EC), which allows Member States on a voluntary basis to introduce a private copying exception provided “fair compensation” is available, posed any problem for the introduction of a format shifting exception. The reasoning given was the exception was so narrow that there would be no significant harm to the rights holder which would need to be compensated and therefore no obligation for payment under the Directive would arise. Currently, the UK Government is not prepared to consider a UK specific exception of broader and more practical scope until the European Commission has brought some harmony to the way in which Member States implement fair compensation levies across the European Union.

PARODY

Gowers’ recommendation was to create an exception for the purpose of caricature, parody or pastiche. The UK Government, however, appears to have adopted an “if it ain’t broke don’t fix it” approach which ignores some of its own concerns about lack of clarity in this area. The subtext to the latest consultation, therefore, appears to be that the “vibrancy of the current parody scene in the UK”, to which rights holders referred in order to support the contention that a parody exception is not warranted, can be sustained not by clarifying the law but by rights holders’ continued acceptance of this aspect of British culture.

RESEARCH AND PRIVATE STUDY

Gowers’ recommendation in relation to research and private study was to extend the existing exception to cover all forms of content. This would enable the use of sound recordings, films and broadcasts, which are not covered by the existing exception, but would not permit further distribution. While acknowledging concerns of rights holders, the Government has decided to extend this exception to cover these additional forms of content for both research and private study under Section 29 of the Copyright, Designs and Patents Act 1988 (CPDA). Mindful of the potential for misuse, however, the intention is to allow such copying only if the individual is a member of an educational establishment and copying is for the purposes of a course of private study or for research at that establishment.

Librarians and archivers will also be allowed to copy sound recordings and films on behalf of individuals for the purposes of non-commercial research or private study, subject to certain conditions.

THE DRAFT REGULATIONS

With format shifting and parody exceptions falling by the wayside, the draft Regulations are confined to the introduction of legislation implementing the Gowers Report recommendations relating to the educational exceptions, research and private study, and libraries. As such, the draft Regulations take forward the recommendation to extend the educational exceptions under Sections 35 and 36 CDPA to enable distance learning and the use of interactive whiteboards and to permit access to a broader range of works. The recording of on-demand works is not included in the proposed amendments.

The Regulations also take forward the Report’s recommendation to amend Section 42 CDPA to permit libraries to copy the master copy of all classes of work in permanent collections for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear.

DIGITAL RIGHTS MANAGEMENT SYSTEMS

In relation to the recommendations that are being taken forward, it is interesting to note that the UK Government did not feel it appropriate to consider the more general issue of whether the current provisions under Section 296ZE allow Digital Rights Management Systems (DRMS) to impede the exercise of certain copyright exceptions, for example in relation to research and private study, notwithstanding considerable comment about and interest in DRMS following the first stage consultation. The one exception is in making the necessary amendments to those provisions of the CDPA that are designed to ensure that digital rights management technologies do not interfere with the rights of those entitled to exercise copyright exceptions. The Government has not therefore been lured into any consideration of whether it should legislate for a “DRM work around” other than to say that views on the issue are “polarised”, not unlike the opinions of stakeholders on most aspects of copyright “in the digital age”.

The consultation is open until 31 March 2010 for those wishing to comment or respond.