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.
"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.