08 May, 2013

The Enterprise and Regulatory Reform Act 2013

A piece of legislation having incited a lot of conversation among the copyright law community in recent times is the Enterprise and Regulatory Reform Act 2013 in the United Kingdom, having been given assent last month, and finally having its final draft released early this month. The discussions around the Act have been largely focused on its approach to orphaned works, especially relating to photographs, but what could the impact of the legislation potentially be?

The Act mainly deals with amendments relating to corporations, mergers and markets, but the inclusion of copyright provisions seems to have fallen into the spotlight more than the rest. Section 77 adds a licensing scheme to works, which after a diligent search, have become orphaned as the owner of the copyright has not been found or cannot be contacted to attain a license to their work. Once this has been established, regulations passed by the Secretary of State could allow for that work to be  licensed to the party or parties seeking to use it for their own purposes for a fee.

Photographers should never resort to drastic measures
What causes the most concern to owners of copyright works, especially photographers, is the lack of definition for what a 'diligent search' would entail, as it isn't defined in the Act, and the nature of the environment where their works currently reside for the most part; the Internet. Looking at the former, what potentially could amount to a diligent search remains quite open, and will without a doubt be looked at by the judiciary in coming years once the Act has come into force. On the face of it one could imagine it encompassing would be proper investigation, through the means of Internet searches for similar imagery and trying to attain who the real author is, or by the use of other means of identification, such as watermarks or digital signatures in copyright works. What makes this issue difficult is the nature of the Internet, where information (including copyright works) is passed on and on, used and copied, diluting or even eradicating the underlying metadata from works, possibly rendering the identification of the copyright owner near impossible. Also the lack of clarity as to what amounts to a diligent search further adds to the ambiguity, since if a lower threshold is introduced amounting to a diligent search, the Act could potentially create a loophole through which works could be abused by those wishing to use them for their own benefit.

One thing I also have to note is a lack of a way of redress for those whose works have been licensed under the Act. There is no provision enabling the original copyright owners from enforcing their copyright once the license has been granted, even after they have identified the work or works as their own, clearly opening the provision up for possible abuse without repercussions. Surely such an omission is one which could harm the creative industry, however as I've stated this is purely speculative and whether this will cause any abuse or harm remains to be seen. The Act has already ruffled some feathers within the creative community, so its potential impact seems to be real and threatens those within the industry.

The Government has posted a list of Facts and Myths about the Act, and also provided some clarifications as to its effects and implementations.

Independent third party;  Sherlock Holmes
The IPO never addresses the matter of what a diligent search is, even in its notes mentioned above, but it does give some indication as to the process, where a diligent search will be "...verified by the independent authorising body which the Government will appoint before a work can be used". What this means is that the process will be an evidentiary process, so there will be no automatic scheme implemented, and all licenses should go through a more rigorous process before being granted. Not only will this provide a minimum threshold, but also an independent body whose sole job it will be to wade through the sea of applications.

The Act does not remove any automatic rights in works, nor does it allow for them to be 'stripped' from them, contrary to the belief of some parties. What it does is introduce a potentially harmful scheme, but as said, it will remain to be seen how or whether this will impact authors of copyright works. The IPO also indicates that authors will have a say in the final draft of the Rules, giving them more say in the process coming down to its finalization and establishment.

Also the licensing fees paid will be held for the copyright owner to claim, allowing for some amount of compensation should the works' owner or owners come to light, but it still does not address the possible financial loss incurred from a very successful use of a copyright work.

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