This year is an historic year for copyright law in the UK.
Following a decade of IP consultations borne out of government
policy desiring to capitalise on the benefits to the economy,
the government produced five statutory instruments, amending or
introducing copyright exceptions for research, education,
cultural heritage, personal copying, parody, disabilities,
quotation and public administration.
Three passed into law in June, with the final two becoming
law in October. As the dust begins to settle, the question must
be asked: have these statutory instruments done enough for
copyright reform?
Reasons for copyright reform
Ian Hargreaves, who led the review of IP in 2010,
stated in his report that if his recommendations for
changes to the IP regime were acted upon, there would be
"stronger rates of innovation and increased economic growth".
His recommendations included an efficient digital copyright
licensing system and copyright exceptions to encourage digital
technology businesses.
The impact of the changes to copyright (both through
licensing and legislation) on economic growth and innovation is
likely to be a slow burner and will have to be evaluated and
analysed over a period of years. But what of the less concrete
changes such as are found in the education and cultural
heritage sectors? How have the new copyright exceptions
impacted these?
Copyright law in practice
Laying aside the issue of licensing, prior to the new
statutory instruments the education section of the CDPA (Copyright,
Designs and Patents Act) was largely redundant and not fit
for purpose. For example, section 32(1) (Things done for
purposes of instruction or examination) permitted only the use
of a literary, dramatic, musical or artistic work in teaching
provided that it was not done by means of a reprographic
process.
"Drawing by hand was therefore acceptable,
but direct copying and pasting from an online source was
not."
Drawing by hand was therefore acceptable, but direct copying
and pasting from an online source was not. Use of these
copyright works in presentations could only really be used
under the fair dealing defence of criticism or review, although
illustration with images fell outside the scope of the
defence.
One of the most significant changes to copyright law has
been the reform of this section, now entitled "Illustration for
instruction", which permits fair dealing with any type of
copyright work for non-commercial teaching purposes. There are,
however, questions over scope; particularly how exceptions such
as illustration for instruction (s.32), quotation (s.30), and
copying and use of extracts of works by educational
establishments (s.36) function alongside each other.
Lack of case law
Ian Hargreaves recently upset rightsholders by
warning them off bringing legal challenges to the new
copyright exceptions. He suggested that this may develop a body
of case law that "gives a wider meaning to exceptions than
… is contained in the wording".
However, from a user’s perspective, case law is
extremely useful as it helps to apply the law in a practical
rather than an abstract way. Without case law to aid
interpretation, the more risk-averse user is prone to interpret
the law extremely narrowly and potentially avoid even
implementing some of the changes.
Solutions?
"The new copyright exceptions were
intended to make copyright law more seamless and better
respected in the digital age, but there remain some issues
which arise as a result of limitations in interpretation."
The new copyright exceptions were intended to make copyright
law more seamless and better respected in the digital age, but
there remain some issues which arise as a result of limitations
in interpretation. These, unfortunately, can only be decided by
case law. However, the EU recently issued a consultation on all
things copyright and received more than 11,000 responses: a
White Paper is expected imminently. The recent restructure of
the European Commission may mean that copyright policy becomes
an instrument to enable the digital single market, breaking
down barriers and enabling digital content to be accessed
easily across the EU.
The new statutory instruments have eased the pressure in
certain areas (such as teaching and provision of works for the
disabled) where copyright was significantly at odds with common
sense and standard practice, but in other areas (such as parody
and elements of education/research) they are so open to
interpretation as to restrict – paradoxically
– the very activities they wish to enable. A happy
medium had to be found, and it will ultimately fall to the
courts to have the final say on the matter.
Emily Stannard is a librarian who has worked in a number
of educational institutions. She tweets at @copyrightgirl.