Report on Consultation on draft legislation July 2013
UK Government believes that permitting the use of material that is in copyright by entities other the rights holder of those works, through the application of ‘exceptions to copyright’, will help in boosting the British economy. These ‘permitted acts’ already exist in the form of some limited exceptions, such as use for ‘criticism and review’. The Government stated they wanted to find ‘a balance between the interests of rights holders, creators, consumers and users’.
Current existing exceptions to copyright include limited use of works for: non-commercial research and private study, criticism or review, reporting current events, judicial proceedings, teaching in schools and other educational establishments, and to help visually impaired people. Exceptions can currently be overridden by a contract.
Proposed expanded exceptions are for: Education, Quotation, Parody Criticism & Pastiche, Private copying, Research & private study, Data analytics for non-commercial research, Access for people with disabilities, Archiving & preservation and Public administration.
In its recent Modernising Copyright paper, the Government stated, ‘To ensure that permitted acts have the maximum positive impact, the Government wishes them to be clearly established and readily usable, and to deal effectively with current and emerging technologies. It wants to shift some of the current uncertainty about whether something can be done lawfully into a question of whether a licence is needed or not.’
Far from achieving this, the new proposed exceptions are likely to create a minefield of uncertainty, which could result in additional costs to individual rights-holders and to the creative industries at large, without providing any further immediate clarity for users of copyright material.
A major problem is that the definitions in the draft legislation are very vague. If phrases included like ‘teaching’, ’such as’ and ‘lawful acquisition’ are not specified, then they are left open to interpretation, and therefore potential abuse. Who will be able to say they are ‘teaching’ and therefore use works protected by copyright without paying for them? Anyone who opens a profit making educational establishment? An organisation with a vague ‘educational’ element to what they do? Rather than clear this up now, Government expects possible future court cases to define what the scope of the exception is. These would have to be brought by creators against those whom they believe are infringing their work under the guise of an exception to copyright.
This absence of definition will create business uncertainty for those whose works will be included in these exceptions; uncertainties for creators over how their artworks may be used, and the difficulties they will face if the only resort would be going to court to define those definitions. Few would have the financial resources to do so, as individual creators such as illustrators, are often living on a low income.
Government have said that these expanded exceptions may not be overridden by contract law, so a contract will not be able to prevent them.
AOI responses to the specific questions in the first batch of exceptions consultation will be available in full on the AOI site soon. We answered the following sections.
- Private copying
- Parody, caricature and pastiche
Go here to read more
Illustration by Beth Walrond