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Academic behind copyright law changes warns that rights holders could lose even more control of content by taking test cases to court

Out-Law News | 07 Oct 2014 | 3:32 pm | 4 min. read

Rights holders could lose even more control over their content if they take cases to court to test new copyright exceptions, the academic whose proposals prompted the new laws has exclusively told Out-Law.com. 

Professor Ian Hargreaves said that if rights holders took a test case to try to restrict the effect of new copyright regulations then they risk the setting of a binding precedent that diminishes the amount of control they have over use of their copyrighted works by others.

The new regulations came into force earlier this month, introducing a new right to make personal copies of lawfully purchased copyrighted material without rights holders' permission. They also introduce new limited rights to quote publically available copyrighted works and use copyrighted material in works of parody.

The new regulations were a product of the government's attempt to modernise copyright rules for the digital age. It confirmed its plans to do so in 2011 after Hargreaves had completed a review of the UK's intellectual property (IP) framework and identified areas for improvement.

Hargreaves, professor of digital economy at Cardiff University, told Out-Law.com that his recommendations for copyright reform had been "modest" and not "revolutionary", as some rights holders have claimed, but he conceded that there would be an element of uncertainty about how the new exceptions should be interpreted.

The parody and quotation exceptions are qualified by an overarching requirement that the use of copyrighted material is 'fair dealing', a well established concept under UK copyright law that essentially limits the use of copyrighted material to that which is necessary for a desired and permitted purpose and which does not unduly harm the interests of rights holders. Hargreaves said that it may be left to courts to determine what use of copyrighted material is legitimate under the new exceptions.

"There is always a degree of legal uncertainty when you change any law and it takes time for non-legal people to adapt to a new understanding of the law," Hargreaves said. "There will be those that say [the reforms] go too far and try to pull it back a bit", he said, but he warned that a "public legal controversy" may not be in rights holders' interests.

He suggested that "strong forces" would oppose attempts to restrict the scope of the new parody and quotation exceptions and that rights holders "could end up in a worse position" if they bring test cases against suspected infringers before the courts and lose. Case law may be developed that give a wider meaning to exceptions than rights holders had argued for or which is contained in the wording of the new regulations, he warned.

Hargreaves also rejected claims from music trade body UK Music that the newly introduced private copying exception should have had a mechanism attached for compensating rights holders for the act of private copying by consumers. His review proposed that the right to make private copies should cover sharing of lawfully purchased content between family members and that no private copying levy was necessary to compensate rights holders for that activity. Hargreaves said it is a position he still maintains today.

However, UK Music has claimed that British musicians stand to lose out on £58 million of revenues each year as a result of the private copying exception and have yet to rule out bringing a legal challenge against the new rules.

"Making copyright law more flexible and better adapted to the digital circumstances in which we all live" would inevitably cause "negative disruptions to people who sell things on the internet", Hargreaves said, but he added that the creation of a wider, more international and accessible market place for selling copyrighted content would benefit rights holders in the long term.

"Rights holders will not be acting in their long run best interests if they insist in copyright law which does not make any sense to consumers and the way they use online media," Hargreaves said. "Consumers are more likely to buy more [if the legal framework makes sense to them]. I don't expect these [reforms] will hurt the music industry at all."

"What the government proposal turned into was less ambitious than what I proposed," Hargreaves said. "What I proposed reflected a view of family and small group sharing which is well understood in the arrangements that Apple authorises in the use of its various services, for example, so it was tightened down. It would have been better had it not been tightened down because most people do not erect intellectual property walls between themselves living at home or with spouses or those they are in close personal relationships with."

However, Hargreaves said that the government had been subject to "tooth and nail opposition" from rights holders against any reform to private copying rules and said, in that context, that the introduction of a limited private copying exception was to be welcomed.

Hargreaves said that the aim of his review was to update the UK IP legal framework to better reflect consumer behaviour online. He said that he had faced calls from those within the IP legal community to completely overhaul the existing Copyright, Designs and Patents Act but said he came to favour modernising the rules governing copyright exceptions via new regulations instead.

He said there are "firmly and clearly drawn ... battle lines" on the issue of copyright reform and that even "achieving a modest set of reforms" had been a time consuming and challenging exercise for the government since he completed his review. The consequence of avoiding a full on overhaul is that the reforms are more "pragmatic" than "comprehensive", Hargreaves said.

The next major changes to UK copyright laws, Hargreaves said, will be shaped by the "ongoing debate at EU level". Incoming EU president Jean-Claude Juncker has already outlined plans to update EU copyright laws during his term in office.