The future of copyright exemption in the UK
However, technological developments have necessitated a review of the present exemption regime under the Copyright, Designs and Patents Act 1998 (CDPA). Led by the Hargreaves Review in 2011, the UK’s Intellectual Property Office (UKIPO) has released for comment draft provisions which are intended to make the current copyright exemptions fit for a digital age.
Current UK copyright exemptions
The CDPA exempts infringement a number of specified acts, which include but are not limited to:
• Non-commercial research and private study in relation to literary, dramatic, musical, or artistic works (Section 29 CDPA); and
• Criticism or review of any copyright work, and news reporting in relation to all copyright works except photographs (Section 30 CDPA).
The above exemptions are subject to the condition of ‘fair dealing’, considered in the UK to be acts or usage of the works which do not have a significant economic impact on the interests of the copyright owner.
Other exempted acts include making of temporary copies of copyright work (Section 28A CDPA); teaching in education (Sections 32 to 36A CDPA); libraries and archives (Sections 37 to 44A CDPA) and ‘time shifting’, ie, copying, within certain limitations, for the purpose of the user enjoying recordings, etc, at a more convenient time (Section 70 CDPA).
What next for UK copyright?
In June 2013, the UKIPO published, in three parts, draft legislation for the amendment of the CDPA so as to “modernise copyright exceptions”. The first batch of proposed exemptions, which will all be subject to the fair dealing requirement, include private copying, parody, quotation and public administration.
The Hargreaves Review identified that under current legislation, format shifting—the everyday act of transferring digitally acquired content to another device, for personal use—is unlawful in the UK. Under the draft bill, a person (ie, not a company) will be allowed to reproduce/download a work lawfully acquired (not rented) by him/her, be it a CD or eBook, for individual private use (ie, not directly or indirectly commercial) and transfer it to any electronic device, such as an MP3 player or even to the ‘cloud’. This exemption is limited and does not, for example, permit copies for multiple people, including family members.
While format shifting may already be a commonly accepted practice, the proposed parody exemption is likely to cause consternation among copyright owners, in particular those from the music and film industry. The exemption is intended to offer creative industries greater freedom to parody and make “minor use” of another person’s work without that person’s permission.
New and easier to use technologies have spawned a fashion for creating and sharing parody work. By making this a fair dealing exemption, it is anticipated that authors will still be protected from those looking to push the boundaries of parody and to gain a commercial advantage unfairly by mimicking their works—it will not provide a defence to outright copying.
The second round of draft exemptions includes data analysis for non-commercial work, education (broadening the exemption to all forms of copyright work), and also amendments to exceptions for research, libraries and archives (extending the exemption to apply to sound recording, films or broadcasts). The final draft, released on July 31, 2013, amends the copyright exemption for people with disabilities, widening its applicability to all types of disabilities which prevent access to copyright work, not just visual impairment.
The exemption of data analysis is again intended to bring the UK into line with common digital practices such as ‘text and data mining’, so as to give the fullest support to research organisations. Modern technologies are also recognised in the proposed education exemption which, provided a licence is not already available, will permit broadcasts via secure distance learning networks as long as the material is not transmitted to people unaffiliated with the educational establishment.
The proposed copyright exemptions will, in the most part, bring UK law into line with current trends in the digital age, where format shifting is rife, and where technology allows users, from the comfort of their own homes, to create and share parodies through social media channels such as YouTube and Twitter.
Undoubtedly, the proposed expansion of the statutory exemption regime will be seen by some as weakening the degree of exclusivity provided to copyright owners under existing UK legislation, and as an opportunity for unscrupulous users to take unfair advantage of their creative skill and effort without having to provide due compensation.
