The United Kingdom (Finally) Updates its Copyright Exceptions

After what seems like a long year after first touching on the new recommended changes to the United Kingdom's ageing Copyright, Designs and Patents Act's exceptions, the UK government has taken its first steps to modernize its copyright scheme. Although only certain provisions will have come into force on June 1st, more specifically ones relating to research and private study, text and data-mining, education and teaching, archiving and preservation, public administration and accessible formats for disabled people, some will remain for further Parliamentary consideration. These are provisions dealing with personal copies for private use, caricature, parody and pastiche and quotation. Below I shall endeavor to expand more on the changes, and to elaborate more on the up-and-coming changes as well.

Research and Personal Study, Education, Libraries, and Archives

Although the provision for personal research and study has existed for a while, it severely limited the provision nonetheless, and merited expanding. What the now in-force Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 does is extend the scope of the provision, allowing for the use of broadcasts, films and sound recordings to be included which were omitted prior to the Regulations' introduction. This is a sensible change as leaving out these other mediums would hinder research endeavors, especially when the copying of digital versions of such works is easier than ever.

Aaron was excited for these changes - a bit too excited

The Regulations also extend the copying capabilities of libraries and archives, while adding educational institutions and museums to copy for the sake of their educational purposes. This is important as before museums and galleries for example, would have infringed copyright in the event that they made copies of works for their displays. In addition to allowing for the copying of newer types of works, the Regulations make express provisions for their use in dedicated displays in these institutions. This clearly aims to further legitimate educational purposes without the hindrance of copyright in doing so. Libraries also are given more express liberties in the distribution and replacement of works within their collections, and allows for librarians to make copies of copyrighted works for individuals for research and study needs within certain limits.

Copying for educational purposes is furthered by the new Regulations as well by creating a new exception for "Illustration for instruction". What this new exception allows is fair dealing for the purposes of education or instruction through newer, more modern means, unlike the current exception which only allows for this when copied by hand. The Regulations also allow for the copying of broadcasts and their distribution for educational purposes, further paving way for more modern, interactive learning methods such as distance learning or e-lectures. Educational institutions are also permitted to copy and distribute copyrighted works to their students and staff, provided only a maximum of 5% of the work is copied, and if the works are distributed via electronic methods, the communication has to be secure. Overall the Regulations clearly further education in the 21st century context, and allow for more effective, robust teaching even when not at University.

Public Administration

Change are made to how public bodies can utilize and distribute copyrighted content through the Copyright (Public Administration) Regulations 2014. The Regulations enable public bodies to copy and distribute copyrighted materials for the purpose of public inspection, and for those bodies to potentially distribute such works for the purposes of dissemination, provided the works are not commercially available. According to the Intellectual Property Office these changes are meant to "...enable more public bodies to proactively share some third party copyright material online, such as material submitted by an individual or business for the purpose of maintaining a public register". This is a significant improvement, as previously these bodies could have only distributed copyrighted works in paper form physically, and not digitally.

Disability Access

Little Horace was already busy making use of the changes

Copyrighted content is made more accessible to people with disabilities, potentially preventing them from accessing or utilizing copyrighted content in their original forms. The Copyright and Rights in Performances (Disability) Regulations 2014 allow for individuals to make personal copies of works in a format which would allow them to enjoy those works should their disability prevent them from doing so, such as making an electronic copy of a book if you are blind for use through screen readers. In addition to giving individuals this right the Regulations also allow for appropriate bodies to make such copies and to supply those to any person's who might need them. Clearly this significantly extends access to copyrighted content for people with disabilities, and fulfills a need which has been neglected under copyright legislation for quite some time.

Personal Copies, Parodies and Quotation

As said above, Regulations pertaining to copies made for private use, parodies and quotation are still under Parliamentary consideration. In a statement made by Intellectual Property Minister Lord Younger, the reason for the delay of these exceptions is purely because there are still "...some questions about the private copying and parody exceptions that [the Joint Committee on Statutory Instruments] would like to discuss with us". This process will delay the introduction of these instruments until at least October 2014.

What the up-and-coming Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 will allow is for the copying of copyrighted works for personal use, provided that the person owns a copy of these works prior to making the new copies. This would include both physical and digital copies which have been bought or gifted to the owner, and excludes any borrowed or rented copies and any streams or broadcasts. This is by far the most needed exception in today's world, and would allow for individuals to make copies of works and to take them with them in a more suitable format. This could be the burning of a CD onto a physical disc for taking with you on a drive, or the ripping of a CD onto your computer and then copying it onto your MP3 player.

Finally, the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 would allow for the quoting of copyrighted content for any purpose, so long as the content being quoted is available to the public and is not quoted beyond the needs of the work in which it is quoted. This extends the ability to use such content for a wider amount of purposes, and not just for criticism, review and news report as under the current exceptions. In addition the Regulation would add a new exception for parody purposes, something which has been lacking in the UK regime for quite some time.

All-in-all the new changes to the current scheme are welcomed and needed, albeit the delay with personal copying, quotation and parody is regrettable. As the world in which we use copyrighted content has changed, so should the law, and this is its first steps into the 21st century.

Retrospective - Betamax and Copyright Infringement

When copyright is concerned there has always been a struggle between two competing interests; copyright owners who wish to benefit from the fruits of their labor, and the consumers who want to utilize copyrighted material, sometimes to the potential detriment of the former party. As new methods have emerged in the consumption of copyrighted works, so have the wishes of the owners to protect their material gotten louder. At the end of that path to equilibrium lies a simple albeit still complex question: do people have the right to use copyrighted material in manners which the owner's object to?

One of the most influential cases of the past few decades, Sony Corporation of America v Universal City Studios, endeavored to tackle that issue in relation to a wholly new piece of technology; Betamax tapes. For those born after the 70s (this writer included), Betamax tapes were akin to VHS cassettes which were used to both view and record movies and TV shows, much like DVDs today. This technology enable the recording and re-watching of content on TV at a later date outside of the broadcast times or releases of commercial copies of those programs. Universal Studios and Disney objected to this new technology as it clashed with their interest in re-releasing content to be sold to consumers, which they clearly would not buy should they have recorded the programs once they were broadcast on TV. Subsequently Universal Studios took Sony to court, eventually ending up in the US Supreme Court.

"What is this 'video cassette' you speak of..?"

What the court had to assess was whether the users of Betamax, who recorded content broadcast on TV, were infringing copyright and whether Sony could be held responsible for that infringement. In essence what was being decided was whether Sony was making the infringement of copyright possible by providing the users with this capability through their Betamax recorders, thus being liable for their infringement. What makes this argument is that at the time no such express provision existed in copyright, however Universal argued that Sony was liable for contributory infringement, a principle relating to patents and not copyright. The court put forth that this would come down to assessing whether "...the product is widely used for legitimate, unobjectionable purposes". What this means is just looking at whether the recorder would be used for recording TV programs for a legitimate, unobjectionable purpose, such as for later viewing for the sake of convenience, and not for example used for commercial copying of content. Clearly one could argue that domestic copying of content in that fashion is a non-objectionable use and wholly legitimate, and at the time was one of the primary uses for the device. There always has to be a balance between the legitimate interests of users and the protection afforded to copyright owners.

For Sony to be deemed to be liable under contributory infringement, the court had to decide whether Betamax recorders are capable of commercially significant non-infringing uses. This could be seen as whether the non-infringing uses would impact Universal Studios, or others, commercially through those uses. The court stated that it would be a matter of exploring all possible uses for the machines and determining whether those uses would be infringing or not, and what amount of uses would be commercially significant. The court did decide that Betamax recorders could be capable of commercially significant non-infringing uses, but for Sony to be liable there still remained the factor of whether those uses would be infringing ones.

How teenagers view older generations and themselves

The court drew its attention to the US fair use provision in deciding whether domestic time-shifting would be an infringing act. The court accepted the District Court's findings and saw that domestic time-shifting of content would fall under fair use. This was due to Sony's evidence as to the licensing of content for broadcasting on free TV, and content providers not objecting to its recording for viewing at a later time, and Universal could not show any actual damage caused due to time-shifting.

The decision swayed 5-4 in favor of Sony, but the dissenting opinion given by Justice Blackmun could've shaped copyright in a wholly different manner should it have been the majority opinion. The dissenting view was one which emphasized the exclusive rights given to copyright owners, noting that in their opinion expanding fair use would take away control for the copyright owners and deprive them of their incentive to create. Justice Blackmun also noted that fair use should apply mainly to 'productive' uses of works, such as for criticism and review, and prohibit their uses for 'unproductive' purposes such as time-shifting. Arguably Justice Blackmun's views come from a wrong approach, one which protects the copyright holder's rights but completely ignores the evolving needs and uses by ordinary consumers, thus creating an imbalance. Justice Blackmun also criticized the majority's approach in deciding contributory infringement through the capability of commercially significant non-infringing uses in stating that "[s]uch a definition essentially eviscerates the concept of contributory infringement. Only the most unimaginative manufacturer would be unable to demonstrate that a image-duplicating product is "capable" of substantial noninfringing uses. Surely Congress desired to prevent the sale of products that are used almost exclusively to infringe copyrights; the fact that noninfringing uses exist presumably would have little bearing on that desire".

All-in-all Sony v Universal Studios made an important mark on copyright and fair use, and has helped in formulating current principles in both. Should Sony have been found liable for contributory infringement, how we record or enjoy media today could be totally different. Manufacturers would have to either pay hefty licensing fees for any recording devices, the cost of which would have been undoubtedly transferred onto the end-consumer, or the manufacturers would have refrained from producing such devices completely. As someone who grew up using VHS recorders to watch content, I can't imagine a World without such a capability.

The United Kingdom Looking Ahead with new Copyright Exceptions

In a recent blog post I talked about the possible direction where Australian copyright was heading based on a Discussion Paper released by the Australian Law Review Commission. Well, it seems like the old motherland has awoken from its copyright hibernation in the wake of Australia's steps forward. In an effort to modernize copyright, the UK Intellectual Property Office is seeking opinions based on new potential exceptions which are under consideration: an exception for private copying, parody and quotations. I think each of these potential categories merits examination as to what their current formulation is, and where they could be headed.

Exception for Private Copying

In their plans, the UK Government plans to introduce "...a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use". What this clearly is is an equivalent for something Australia has already had for some years; format shifting. Provisions such as this will allow you to copy your lawfully bought content, such as music or movies, to a different format - often from a CD onto your MP3 player for example. There is a distinct difference to what the UK approach, at least for now, is when compared to the Australian one. In further expanding on how the copying will extend, the IPO says that "...it would not allow them to make copies of their CDs and give them to other people". If this were to be looked at from a literal perspective, should you make a copy of a CD for your kids to listen to on their iPods, or give a copy of a DVD for your cousin to watch on a Saturday night, you would be infringing copyright. The Australian provision allows for copies to be given to family or people living in your household, but on the condition that those copies are of a temporary nature and not given to keep. If the IPO would only permit the copying for personal use in excluding family they would go against the very principle why they're enacting these additions to begin with: "The exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright". 

Steve hasn't quite gotten the hang of "private copying"

Arguably the exception should be shaped to be similar to that of Australia's approach. The Canadian provision only allows for the copying for the individual, much like the potential UK provision, so the direction where this could head is unclear. One could easily predict that the courts could potentially extend the provision to apply to family, but that would remain to be seen. A draft of the section can be found in the document discussing the exception. 

Exception for Parody

An exception that the UK has needed for the past several years, yet again lagging behind its Australian cousins, is the exception to allow for the use of works for parody, caricature or pastiche. As the IPO explained, this would "...give people in the UK’s creative industries greater freedom to use others’ works". If introduced the provision would be included with other fair dealing provisions, so the use would have to be 'fair', preventing the use of works in the veil of parody to purely abuse it for personal gain. A draft of the possible provision can be read in the IPO's documentation as well.

Exception for Quotation

The final exception being introduced is one which would amend the current exception for criticism and review to one allowing for the quotation of material, not merely restricting it to those uses. Broadening the existing fair dealing exception seems like a perfectly sensible option, and in the words of the IPO: "ensure[s] that copyright does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking". Should the provision be enacted it would be the first of its kind, as both in Australia and Canada similar provisions relating to criticism and review, on the face of the provisions, would be much more restrictive.

Source: IP-Watch

The Future of Copyright in Australia?

With the release of the Australian Law Review Commission's Discussion Paper on Copyright and the Digital Economy just a mere few days ago, I thought it'd be a good vehicle through which to look at the prospects of Australian fair dealing. The Paper is merely a discussion of the points brought up by the ALRC and invites other parties to submit their opinions on the points brought forth, but nonetheless provides some great insight as to the possible changes in the Australian law in the coming years.

The Future of Fair Dealing

The ALRC frames the need for change in fair dealing as a part of the new digital economy, where consumers and companies alike are going progressively more and more digital. People consume less physical goods as opposed to their digital counterparts every year. With improvements in Internet speeds and availability in most countries (notably the NBN here in Australia in coming years), this does make sense. Old laws which applied predominantly to physical goods don't relate to this sphere anymore. Users also want to be able to disseminate that content, and with services like YouTube being an avenue to showcase your creativity to the masses, the law should adapt (a great TED Talk by Lawrence Lessig spoke about this some 6 years ago). The Canadians have shown the way forward, but other nations are still trailing. Even the ALRC admits that "there is now more of an appetite for a broad, flexible exception to copyright".

Fair dealing should be flexible, adaptable and mold according to the needs and wishes of the changing environment we live in. Technology is changing at a hugely rapid rate, and fair dealing has failed to change with it. As many have pointed out in their early submissions to the ALRC, the law should be an open-ended list, not merely a short hand-down list of very specific categorical possibilities with no amount of leeway. As was so eloquently said in the submissions, the law should "respond to future technologies, economies and circumstances that don’t yet exist, or haven’t yet been foreseen". Should Australia go the way of the United States? I wouldn't argue to opt for a carbon copy, but some elements have to be taken from the US approach, possibly allowing for a more open catch-all provision for fair dealing should an act fall outside of the permitted exceptions today. This would allow flexibility, yet still retaining the fair dealing we have today.

Submission also dealt with the possible impact of proper fair dealing provisions and how they would allow for more innovation and create space for creative industries to blossom more. Arguably this is completely true, as the possible use of a few seconds of a film or even a few chords from a song can potentially amount to infringement. The attitude seems to have shifted from a defensive position to an offensive position, changing copyright legislation from a shield to a sword. My argument would be for strong fair dealing provisions, allowing for a balance between creators and rights owners, taking the position back to the legitimate protection of content, not the pure 'cashing-in' on the popularity of something through litigation. Submissions to the ALRC also seem to agree that proper fair dealing provisions "counterbalances what would otherwise be an unreasonably broad grant of rights to authors and unduly narrow set of negotiated exceptions and limitations". 

One has to also point out a disconnect between what consumers think they can do and what they actually can do by law. Also the ambiguity as to the extent of the existing provisions does not aid this. Submissions point out that there is a "growing mismatch between what is allowed under
copyright exceptions, and the reasonable expectations and behaviour of most people as a significant problem". When thinking about this one can understand that the rift between what people want to be able to do with their content and what they can do has been growing for some time. This again is attributed to the inability for the law to change and evolve according to the needs of the people, and due to the pendulum of protection firmly swaying towards the rights owners. In the words of Google's submission: "flexible and technology-neutral exceptions permitting consumers to make personal uses of legitimately purchased content would greatly restore people’s faith that the law makes sense"

As there were calls for the improvement of fair dealing, so were there calls for its adequacy and the lack of a need for change. Some submissions stated that "the existing exceptions are adequate and appropriate... [and] the common law was capable of addressing the needs of promoting innovation". I would personally wholly disagree with this. Current fair dealing provisions do offer ways for the use of copyrighted materials, but their limited scope and the absence of proper user-generated content provisions shows a lack of adaptability to the digital world. Also some submit that it "has not been shown that the Australian common law system is incapable of addressing the needs of promoting innovation through case law development". Again, I would disagree, as this distorts the separation of powers; the courts are there to apply the law, not to make it. It should not be up to judges to have to adapt the law - the law should adapt before for the need for the judiciary to do so through interpretation.

Some submissions also call against more open-ended fair dealing provisions, as through their opinion, this would create expense and uncertainty as to the law through the lack of clear-cut rules or categorized exceptions. I will partially agree with this position, although purely for the possibly ambiguity of the law. More relaxed or undefined fair dealing provisions would initially lead to a lack of clear borders as to their application, but as has been shown by the US, the judiciary will in time set its boundaries and a standard of 'fairness' would be set. What this initial confusion allows for is the better future adaptability of the law, giving the judiciary the power and ability to change existing standards according to new wishes by consumers or technological changes. The costs for possible litigation could potentially go up, but as I personally lack the knowledge in this area I cannot say exactly whether this would hold true.

Proposals for Reform

The ALRC seems to agree with the position that flexibility is desired and that it would assist innovation. A possible "fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs".

The 'fair use' provision suggested by the ALRC would be determined through four factors (however the list of factors would be left open-ended): the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect upon the market for or value of the copyrighted work. These factors would be the same as what is used in the US at the moment, and don't differ much from the existing factors used in Australia (specifically related to research and study). This approach would be substantially very similar to the current standard employed by the Canadians through CCH. Arguably this would be the best position to go from, as standards could be applied through the use of US and Canadian decisions to help establish an Australian standard much quicker, causing less ambiguity in the provision's extent.

The Commission also suggests a non-exhaustive list approach, including current provisions and adding ones dealing with for example non-consumptive uses, quotation and education. Providing a list of possible exceptions would also take some amount of uncertainty away from any fair use provisions as then there would be clear situations when the use would be fair, yet still allowing for that provision to grow and change should it need to. How far should the list go will ultimately be up to the legislature and it will surely develop through the courts once unknown or unforeseen uses arise.

Should no fair use provision be enacted, the ALRC has submitted that there should be a right for private and domestic use. The current law does allow for format-shifting, time-shifting and space-shifting, however a more open and technology-neutral approach should be taken. Some submit that "expanding the private and domestic use permitted under copyright law would simply legalize what consumers are already doing". One could easily argue that this is both sensible and would reduce the instances of unnecessary litigation. As said, how people use their legally bought content has changed and attitudes towards the use of your own purchased content should change accordingly, with the law reflecting that change. The ALRC argues that "fair use and fair dealing exceptions with fairness factors considered, are likely to be able to better account for the differences in markets and technologies between types of copyright material and different types of uses", and I would personally agree. A wider fair use provision would not only account for existing uses, but would accommodate future uses better such as cloud computing.

The Future?

To conclude, you have to ask the question, what will be the changes implemented, or whether they will be implemented at all. At this point things are uncertain, but the ALRC's work seems to bode well for the potential changes in copyright law and fair dealing. The final draft of the report due to be published at the end of November this year. Whether Parliament takes the initiative and makes changes to the current legislation will remain to be seen, and we shouldn't expect any changes immediately. Calls for change have been loud and abundant, and should the Australian Parliament not act on this, the nation could be held back when compared to the rest of the world. With the implementation of the NBN in the coming years, this would act as even more of an incentive to amend the law before the nation is set to be able to access the Internet through faster and more reliable means. If the law takes the leap before this, Australia would be fully able to utilize this new avenue and take a step forward in the world of copyright.