Changes to Copyright Exceptions

Following on from the recommendations made in the Hargreaves Review of Intellectual Property in May 2011, the government has now published its response to the December 2011 consultation, in which it proposes new copyright exceptions and introduces a non-statutory official notice system for clarifying areas where there is confusion or misunderstanding as to the scope and application of copyright law.

The Copyright, Designs and Patents Act 1998 (“CPDA”) contains certain exceptions whereby various uses of copyright works are permitted without the consent of the copyright holder. The new regime will expand on these exceptions in the areas of private copying, parody, quotation, non-commercial use for research, access for people with disabilities, education and public administration.  This article looks at a few of those areas.

Private copying

A narrow, technology-neutral private copying exception will be introduced to allow a lawful owner or buyer of a copy of a work to reproduce that copy onto their other devices/media for their personal use, but not to share copies with other people.  So, format-shifting of copyright works for personal use (for example transferring music content from CDs to an iPod) will be lawful.   This will not extend to works not owned or purchased to keep, so will not cover rented or streamed content.

This goes some way to bring the law into line with current consumer practice in relation to music and entertainment content.

Parody, caricature and pastiche

Copying for the purposes of parody, caricature and pastiche will be permitted on the basis of fair dealing. This exception is in line with similar provisions contained in the EC Copyright Directive (2001/29/EC) that have not currently been adopted under the CDPA and will bring the UK in line with countries such as France, Netherlands and Germany. This exception will not however affect the existing moral rights of copyright owners, for example, the right to prevent derogatory treatment of a work.

Quotation

The use of quotations for any fair purpose will be permitted, provided that the source of any quotation is sufficiently acknowledged. It will not be possible to contract out of this exception.  However, it is likely that this exception will not apply if use of the quotation would cause unreasonable harm to the rights holder and that in this instance the commercial availability of the quotation from a news agency or archive would be taken into account.

Non-commercial research

Where a non-commercial researcher has lawful access to material he will be permitted to make copies of that material for the purposes of text and data analysis e.g. to identify relevant text and data associated trends by automated computer processing.

In addition, non-commercial copying of sound recordings, films and broadcasts will be permitted for the purposes of research and private study, provided that the rights holder is acknowledged in an appropriate way alongside any use of copyright material.

Contractual override of new copyright exceptions

The government has stated that, to the extent possible, licensors of copyright works will not be able to override the permitted acts under the statutory exceptions set out in the CDPA (as amended to reflect the proposed changes). The effect of this will be evaluated after the implementation of the new exceptions in the latter part of this year.

The government plans to bring these new measures into force in October 2013.  With many of the provisions it will not be clear until the legislation is published how the extended exceptions may work in practice, but given that the original consultation brought so many differing views, it is unlikely that everyone will be happy.