Summary and business impacts

Following the Gowers Review which culminated at the end of December 2006, the UK Intellectual Property Office is consulting on proposals to implement some of its recommendations by creating new, and expanding existing, exceptions to copyright infringement. The consultation is open until 8 April 2008. It proposes:

  • A format shifting exception which will allow private copying of media from one format into another to allow it to be played-back on another device. This would permit the copying of a CD into MP3 format for play on an MP3 player, a widespread practice among consumers.
  • A new exception for parody. This proposal appears to be at an early stage with the IPO seeking views on many aspects of its scope. If it comes into force, it would seem to envisage allowing the substantial copying of an original work into a new work for the purposes of parody, the meaning of which is as yet undefined. This could have far reaching consequences for rights holders if it is not drafted with a clear and confined scope.
  • Extensions to existing exceptions related to education, research, private study and library archives, largely to assist in the use of new technologies and distance learning, as learning moves away from the traditional method of teaching students in a single location using hard copy materials.

The consultation and details of how to respond can be found here:  http://www.ipo.gov.uk/about/about-consult/about-formal/about-formal-current/consult-copyrightexceptions.htm

Consultation on copyright exceptions launched

Following the publication of the findings of the Gowers Review in December 2006, the IPO has launched a consultation this week seeking industry views on proposed changes to, and extensions of, the permitted acts in respect of copyright works set out in the Copyright, Designs and Patents Act 1988 (the "CDPA").

These exceptions allow an act to be carried out in respect of a copyright work which would otherwise infringe that work.

New exceptions for format shifting/private copying and parody proposed

Format shifting

Ever since the invention of the cassette tape and the technology to record it, consumers have copied music from other tapes, records, the radio and CDs onto a format more suited for portable use. Modern technology ensures that the copying process is quick, can be carried out in bulk and at a quality close, if not the same, to the original, which has not always been the case. The popularity of mp3 players, the content of which are likely either ripped from CDs or copied from a computer having been downloaded from an online music store, mean that a vast proportion of the music and video consuming public may be committing regular acts of copyright infringement largely without being aware that they are doing so.

The UKIPO therefore proposes to introduce an exception permitting such activity if it involves the shifting of a work from one format to another to allow for the playback of media on another device. The exception is intended to be purely for personal or private use, permitting the creation of single copies and without any right to distribute them to anyone else (such as by peer-to-peer file sharing).

Views are being sought by the UKIPO on the classes of work to which the exception should apply and the number of formats to which material can be shifted.

As stated above consumers have been format shifting for years and the entertainment industry has largely tolerated private copying so this new exception may not have a huge impact on either rights holders or consumers. However, it will need to be appropriately limited so that it does not provide a loophole for pirates or encourage consumers to share their collections with others.

Parody

A new exception is proposed in respect of the caricature, parody and pastiche of copyright works. Parodies usually involve the imitation of a well-known work for satirical or comedic effect, borrowing sufficiently from the plot, style, dialogue or characters to ensure the audience of the parody knows that the original work is being japed.

The exception would allow the author of the parody to substantially reproduce a copyright work without committing an infringement. Such an exception could seriously prejudice the original right holder, allowing for example the use of a close parody of a piece of music or film to endorse products in advertising (although the law of passing off might provide an alternative cause of action in this case). Wary of this the UKIPO proposes a 'fair dealing' type exception, which might be so framed as to disallow uses of copyright material in parodies where it would involve a commercially competing use.

Parody in copyright is a notoriously tricky area of law and this exception is evidently at an early stage, with the IPO seeking views on a large number of aspects, including whether a definition of parody is required, the classes of work to which it should be applied, whether there is a need to acknowledge the original author in the parody and the affect on authors' moral rights.

Extensions to education, research, private study and library archive exceptions

Educational use

Extensions of sections 35 and 36 CDPA are proposed. These deal with the existing exceptions for educational establishments when recording broadcasts and cable programmes and the reprographic copying of passages from published works. As to section 35, this exception currently only applies to the use of copyright works before students physically present in a place of education. The proposal is to extend the exception to cover distance learning, eg, in the transmission of a lecture by internet streaming video to a student in his bedroom.

It is also proposed to extend the right of educational establishments under section 36 to include passages from published works in handouts so that the same passages can be presented electronically to both distance learners and traditional students (eg, by use of an interactive whiteboard).

Views are sought on which methods of communication should be permitted to present copyright works to a remote student; on whether safeguards are required to ensure no one other than the student can access the work; and on the types of work the 'handout' exception should cover.

Research and private study

The proposal here is to extend this exception (currently at section 29 CDPA) to cover all forms of content, whereas it is currently limited to just literary, artistic, dramatic and musical works. Views are sought on the scope of any such exception, its impact on rights holders and expected benefits.

Libraries and archives

Views are sought on the proposal to extend the ability of prescribed libraries and archives to make copies of works held in their collections for the purposes of preservation and replacement. The proposal suggests extending this exception to permit copying of sounds recordings, films and broadcasts and allowing format shifting.

Changes likely to limit holders' ability to enforce rights, but extent as yet undecided

A stated aim of the proposals is to provide clarity to consumers and rights holders as to the application of exceptions to new and emerging technologies. If properly executed, with appropriate safeguards, some reform of UK copyright law is be welcomed; current legislation was put together when the draftsmen could have had no idea of the effect the internet would have on the creation, sale and ease of distribution (legitimate and illicit) of a large amount of the material which attracts copyright protection today.

Another stated aim of these changes, if they are made, is to enable consumers to use copyright material in ways that do not damage the interests of rights holders. From a rights holder's perspective, however, any expansion of the existing exceptions will necessarily weaken their rights, acts that would previously have been an actionable infringement of copyright becoming something against which the rights holder can no longer object.

The introduction of a private copying exception has already been cautiously welcomed by the music industry but rights holders will be keen to ensure that losing a long unused right to prevent format shifting does not open a "Pandora's box" of problems once the permitted act is written into law.

The potential new parody exception is both academically interesting and commercially important, its scope as yet entirely unclear. Unless carefully drafted, it may damage rights holders while seeking to resolve a problem that the UKIPO is not (according to the consultation document) convinced is really there.

Educational establishments are often run as businesses nowadays and while rights holders may accept the importance of facilitating education, they may not be content to permit their works to be used to increase the commercial success and profitability of an educational establishment.

Responses required by 8 April 2008

It is early days yet. This is only the first stage of the consultation. The second stage will take the form of a consultation on a draft statutory instrument. We will keep you updated on the progress of these consultations in the coming months.

If you wish to respond to the consultation your response must be sent to the UKIPO by 8 April 2008. Contact details are available at the link above.