Out-Law News | 29 Apr 2013 | 3:06 pm | 3 min. read
The Enterprise and Regulatory Reform (ERR) Act will allow future reforms to exceptions to copyright to be delivered through new regulations as opposed to new Acts of Parliament.
The term of protection given to creative designs that are manufactured through an industrial process has also been extended. Designers of such works will now have rights for the duration of their life plus 70 years after they die.
In addition, the Act paves the way for new regulations on 'orphan works' and collective licensing to be set out. The Act would allow the Government to set statutory codes of conduct that collecting societies would have to adhere to, although the Intellectual Property Office (IPO) has said that it would only use the "backstop" powers if voluntary rules do not solve concerns about the existing regime.
Orphan works are copyrighted material, such as books, films and music, which have no identified owner. At the moment many orphan works lie in storage in libraries and other institutions and, because of copyright law, cannot be digitised or used without permission until the term of copyright expires.
The ERR Act gives power to the Business Secretary to create new regulations to form new rules to govern the licensing of orphan works. The Intellectual Property Office (IPO) last year published a policy statement in which it outlined plans to allow orphan works to be used for both commercial and non-commercial purposes.
Under the Government's plans, organisations that wish to use orphan works would have to conduct a 'diligent search' for the owner of orphan works before they could use the material. The searches would have to be verified as diligent by independent authorising bodies. In addition, organisations would have to pay a "market rate" to use orphan works so as rights holders could be recompensed for the use of the works if they were later identified.
The plans have been met with criticism from photographers who are concerned about existing practices that often result in information that identifies them as rights holders being stripped away from digital files.
The ERR Act also enables the Business Secretary to set out changes to rules on exceptions to copyright, as well as rights in performances, through new regulations. The regulations would be contained in a statutory instrument, a draft of which would need to be laid before and approved by resolution of both the House of Commons and the House of Lords before it could come into force.
The Government has previously indicated its willingness to introduce further exceptions to copyright following a review of the UK's intellectual property framework in 2011. However, MPs and Peers have raised concerns about making changes to copyright law through regulations rather than through Acts of Parliament. The regulations would not be subject to the same level of debate and scrutiny as Acts of Parliament, some have argued, whilst there would also be no scope to amend the provisions – a vote would be on whether to accept or reject them in the form they are drafted.
The Government already has the power to make changes to copyright law through new regulations, under the terms of the European Communities Act. However, the legislation restricts the ability of Government to set out maximum penalties for breaches of new regulations formed under the Act to two years imprisonment. A 10 year jail term and an unlimited fine can be levied on copyright infringers under existing legislation. The Government has therefore sought to introduce the new ERR Act provisions to ensure that the maximum penalty for future copyright laws is not limited to two years indictment.
Intellectual property law expert Iain Connor of Pinsent Masons told the BBC: "The key to this is going to be whether or not there is going to be appropriate secondary legislation that will set up some sort of system that is good for users to get the content they want, but good for the industry to make sure they are remunerated appropriately for their work."
"If this is copyright legislation, this deserves an act called the Copyright Act," he said. "This should not be tagged into a piece of legislation that has nothing to do with copyright. It's a nonsense."
Editor's note 02/05/13: The story has been updated to include quotes from Iain Connor.