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Final countdown in copyright exception battle

James Nurton

Rights owners are furious over proposed new exceptions to copyright in the UK. But have they left it too late to fight them?

Pencils are being sharpened, ink wells filled and keyboards hammered this week as the finest minds of the UK’s creative industries (don’t call them content producers) finalise their responses to two government consultations on “modernising” copyright exceptions.

The changes cover both new and existing exceptions. Comments on exceptions for private copying, parody, quotation and public administration are due by next Wednesday July 17, and those on exceptions for data analysis and non-commercial research, education and research, libraries and archives by August 2. The draft legislation is set to be enacted in the autumn.

The government said it would adopt and update the copyright exceptions on December 20 last year (just as most office workers were setting off for their Christmas holidays), in a document titled “Modernising Copyright: A modern, robust and flexible framework” and these instruments put flesh on the bones of that policy. The changes arise from “Digital Opportunity”, a May 2011 report by Professor Ian Hargreaves, which recommended delivering copyright exceptions – though his argument that the private copying exception alone would lead to £2 billion in growth was strongly challenged by MPs earlier this year.

To say the changes are opposed by many copyright owners would be an understatement. The Copyright Licensing Agency argued in its response to Hargreaves that the reforms are unjustified, unfair and possibly illegal (as there is no mechanism for “fair compensation” as required under the EU Copyright Directive). But the reforms were welcomed by the British Library and some in the university sector.

At a conference today, UK IPO Deputy Chief Executive Sean Dennehey encouraged responses to the “technical consultation” but added that it was not designed to be an opportunity to reopen the debate over exceptions: “The policy view has been decided. The consultation asks: do the instruments embody that policy?” He also encouraged respondents to put their views “fully and clearly”.

I hope Newport, where the IPO is based, is well barricaded as I predict they will be deluged with detailed comments from copyright owners, associations and lawyers. As it appears to be too late to change the policy, comments will focus on the specific shortcomings of each exception, the legal basis for them, the question of compensation, lack of detail that could lead to years of litigation and the treatment of moral rights, among other things. It could take months of work just to digest all of that.

The creative industries in the UK are large (thanks partly to the English language), powerful and increasingly vocal but arguably they were too slow to react to the original Hargreaves proposals and are now trying to make up lost ground. As one industry figure told me this week, it is now about “damage limitation”. Copyright owners may win a few battles on the detail of the changes, but they have probably already lost the war.


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