Content mining should be cleared up and copyright law entirely rewritten, say MPs

Out-Law News | 28 Jun 2012 | 8:00 am | 5 min. read

Publishers should develop new licensing models that would allow researchers to use computerised techniques to read information contained in journal articles at "realistic rates", MPs have said. 

The House of Commons' Business, Innovation and Skills (BIS) Committee made the recommendation in a report into the future direction of UK intellectual property (IP) policy. It was assessing Government plans to create a new 'content mining' exception to copyright, among other developments in Government IP policy. It also advised that the Copyright, Designs and Patents Act be rewritten at the "earliest opportunity".

The Government has consulted on plans to enable non-commercial researchers to use 'content mining' technology to copy relevant copyrighted content for free if the use of the technology does not "unduly prejudice the primary market for or value of the copyright works being copied." The exception could be extended to cover use in commercial research pending changes to EU copyright law.

Content mining involves the use of technology to go through vast amounts of content in an automated way to extract information from it. Researchers are currently not permitted to use some software to read data from journal articles without specific permission from the copyright owners, regardless of whether or not the researcher has already paid to access that article.

Earlier this month the Intellectual Property Office (IPO) published a summary of responses to its copyright consultation. The IPO's document detailed "strongly divided" views on the issue of whether and to what extent a content mining exception to copyright should be introduced. The BIS Committee has now said that a revision of existing licensing models could provide researchers with the 'content mining' rights they desire whilst ensuring publishers are compensated for the privilege.

"Content mining is essentially about a desirable widening of access to the factual element of scientific literature rather than the edited contribution, although publishers have an important potential role to play in enhancing the search process," it said. "There are issues around technical feasibility and security which need to be resolved, but we believe that content mining should be opened up by way of managed but nevertheless readily accessible licensing processes."

"We believe that policy on content mining should have regard to potential risks. Revenue might not provide the necessary investment to support data access and the successful UK scientific publishing business might be disadvantaged. However, policy should also recognise the potential benefits of content mining, the core contribution of researchers and the need for ready access," the committee added.

"We believe that publishers should seek rapidly to offer models in which licences are readily available at realistic rates to all bona fide licensees and we encourage the [Government's] Department [of Business, Innovation and Skills] to promote early development of such models," it said.

The Parliamentary Committee's plans were welcomed by the UK's Publishers' Association.

"We strongly support the Committee's recommendation that content mining be developed in a managed way based on 'readily accessible licensing processes', as opposed to creating a new copyright exception as proposed by the Hargreaves Review," Richard Mollet, chief executive of the trade body, said in a statement sent to Out-Law.com. "Such an exception would deprive publishers of the ability to manage access, monitor abuse and protect copyright."

"The Select Committee report explicitly acknowledges that copyright is a property right –something the Hargreaves Review failed to do. Publishers are already working towards a market-led solution based around the development of model licences."

In the Government's copyright consultation, launched in December last year, the IPO also announced plans to create further new exceptions to copyright, including enabling copyrighted works to be used freely in parody and pastiche.

However, the Parliamentary Committee said that the policy should only be developed following a "closer examination of certain economic issues", such as what the "transactional costs" are in negotiating licenses and how those costs compare with "anticipated benefits" of the new exception being introduced. It also suggested that an examination of "how much creative activity is actually stifled by the current legal situation" should take place as well as an assessment of how many parody cases could lead to claims by rights holders that their "moral rights" have been infringed and what the costs of resolving those disputes would be.

The Committee did broadly support plans to create a parody exception though.

"On a possible exemption for parody, we are inclined to agree with the Government's proposal for a fair dealing exception, but with disapplication of the exception where there is reputational damage and subject to a robust assessment of the economic benefits," it said. "We recommend that the definition of unfair reputational damage should make provision to protect (within the exemption) genuine political and satirical comment supportive of free speech."

In its other findings the committee also set out its support for the introduction of a new private copying exception. It said this would enable individuals to copy protected works across different formats, such as from CDs to iPods, for their own private use. It added that it was also supportive of plans to create a new digital copyright exchange as well as the ongoing review of the UK's designs framework.

The committee urged the Government to rewrite UK copyright laws "at the earliest opportunity". It said that the 1988 Copyright, Designs and Patents Act needed "bringing up to date and consolidating" to reflect the age of computers.

It also said that some of the proposed reforms to the existing law, currently under consideration, could be introduced through secondary legislation and advised the Government "to press ahead as soon as possible with measures to reform copyright where the case is made out for urgent change to support growth in the economy."

All the proposed changes should be set out in a "road-map for implementation, including a timetable for legislative action" as part of the Government's response to its report, the BIS Committee said.

The MPs also criticised the Government's "negotiation strategy" during EU-wide discussions on the establishment of a new unitary patent court (UPC) system. It said the approach had been shown to be "not fit for purpose."

Discussions are currently ongoing over the establishment of new unitary patents that would provide inventors with a more cost-effective opportunity than is currently available to obtain protection for their products and services across multiple EU countries. As part of the plans a new court system has been discussed, but the committee said the Government had failed to properly assert UK interests in those talks.

"As a matter of urgency the Government needs to take a firmer stand for UK interests in the UPC negotiations than was manifested in the recent evidence session held by the European Scrutiny Committee," the committee said. "In particular, it needs to set out clearly defined options for outcomes acceptable to the UK and a robust strategy on how to translate those options to an acceptable overall solution."

"Such a strategy has to clearly state the Government's position on avoiding European Court of Justice jurisdiction, avoiding the risk of remote and costly litigation for UK business, and neutralising or mitigating the effects of any bifurcation regime. Furthermore, that strategy should include a cogent argument for locating the central court in London and not one that relies upon hope and aspiration. Anything less runs the risk of undermining the competitiveness of British industry," it added.