Copyright reforms needed now, but future 'tweaking' without consultation must be avoided, says expert

Out-Law News | 19 Sep 2012 | 2:23 pm | 4 min. read

The Government must reform UK copyright law in order to restore the public and business’s "respect" in the "integrity" of the framework, an expert has said.

Copyright law specialist Kim Walker of Pinsent Masons, the law firm behind Out-Law.com, urged the Government to deliver on its plans to revise rules around exceptions to copyright, the use of orphan works, rights of collecting societies and to the copyright licensing framework.

However, Walker expressed concern at the Government's intention to use secondary legislation in a bid to introduce speedy changes to the law. He said that changes to copyright law should be subject to consultation and full Parliamentary scrutiny and debate.

Late last year the Government outlined its plans to reform UK copyright laws to implement recommendations made by university professor Ian Hargreaves in his review of the UK's intellectual property (IP) framework. Subsequently the Government has published a policy statement outlining how so-called 'orphan' works will be able to be utilised and how the activities of collecting societies should be regulated.

In addition a new 'Copyright Hub' has been identified as a means to better facilitate copyright licensing and stemmed from a Government-commissioned study into feasibility of such a scheme.

Among the other changes planned is the enabling of the right to make private copies of copyrighted works, the introduction of an exception to enable protected works to be parodied, and a widening of exceptions to permit content mining and educational use of copyrighted material. The Government is set to outline formal proposals around the exceptions later this year.

"There is an awful lot that should be done in order to modernise UK copyright laws, as Hargreaves pointed out," Walker said. "Although we have had the Gowers and the Hargreaves reviews which identified the issues, it is a long time since there have been any substantial changes to the law to ensure copyright functions as it should in the digital age. But copyright law should be 'technology neutral' and applicable irrespective of developments. If the law is properly drafted now it should not be necessary to keep changing it."

"Whilst there is an urgent need for a major overhaul of the rules around such things as outdated copyright exceptions, data mining, orphan works, the operation of collecting societies and the copyright licensing framework generally, I am not in favour of lots of ad hoc tweaking of copyright law after that, as that would create uncertainty and should not be necessary," he added.

"The Government should avoid reserving the right to make future changes by statutory instrument unless there are appropriate checks and balances. There needs to be full consultation on changes to copyright. As has been demonstrated by the surprisingly divergent views expressed in consultation on the changes which should be made even to the private copying exception, it is not as easy as it sometimes appears to get proposed changes to copyright law right, balancing appropriately all the competing interests. A full hearing and consideration of views is required in order to ensure that rights holders' rights are protected, but that unnecessary monopolies and restrictions on creativity and entrepreneurialism are avoided," Walker said.

Exceptions to copyright law have needed updating for years, Walker said. He said that he supported plans to make it easier to get access to copyrighted works for educational purposes, as well as the establishment of new rules around content mining.

He added that there was a probably well-founded perception that the public had lost its "respect" for copyright law in some areas, such as over the way enforcement action had been taken in respect of seemingly harmless works of parody and as evidenced by the fact that 'format shifting', although technically illegal, has been commonplace and tacitly permitted since digital music players were invented.

"The practice of copying music across multiple platforms, such as from CDs to portable digital music players, although generally unlawful under the current regime, has been taking place for years without the rights holders doing anything about it," Walker said. "But it is not as straightforward as it may seem to work out what the precise scope of the private copying exception should be and the issue has been the subject of detailed attention and consultation prior to being introduced."

"Whilst most agree that it is right to enable individuals to transfer music they own from CDs onto their iPods, there is a debate to be had for example over whether a private copying exception should allow individuals to share copyrighted works with others, for example in a 'domestic setting'. That term would need to be carefully defined - should it allow people to share works with family members, friends, or neither? There are polar opposite views among stakeholders on these kinds of issues. Copyright is too important and too significant to the economy to risk being tweaked without full consultation," Walker said.

In a report in June a committee of MPs recommended that the Government "put measures in place for bringing up to date and consolidating the UK's principal copyright statute and related legislation at the earliest opportunity notwithstanding the likely need for earlier measures to reflect the recommendations of the Hargreaves Review."

However, in its response to the House of Commons' Business, Innovation and Skills (BIS) Committee report the Government has said that it will not seek to re-write the existing 1988 Copyright, Designs and Patents Act in a single reform.

"The Government agrees that new technologies continue to offer new challenges to the legal framework, and the effective operation of it," the Government said. "However, we do not consider that a full and comprehensive revision of the Act could be delivered easily or swiftly."

"Inevitably, this is a moving target. EU policy continues to develop, as do international initiatives. There are serious questions about how much new consolidation can or should be done at national level, in the context of that parallel activity. Any revision would also be the subject of very considerable pressure from different stakeholders concerned to shape the law according to their own vision, both during the drafting process and during the legislative process, and would need considerable time and space in the legislative programme," it said.

The Government said its "immediate priority is to act where change is needed now" and that it is "continuing its productive discussions with a range of stakeholders" on how to implement its policies on orphan works and collecting societies. The Government "envisages" holding a consultation on its formal proposals over the New Year, with reforms "introduced by secondary legislation", perhaps as early as October 2013.