The XXX Clause – why it's not obscene

Right approach, copyright lawyer argues

Letter Laurence Kaye disagrees with the arguments advanced in The XXX Clause is Obscene, penned by fellow copyright lawyer Brian Esler And published on The Register. He would "welcome the opportunity for a fuller debate on ...private copying, DRM and associated issues". So would we. Send us your submissions. We may even publish them. Now for Laurence's reply:

Brian Esler ("The XXX Clause is obscene”, posted 08/11/02) paints a picture of copyright law allowing media conglomerates to lock up their content to the detriment of users. It's simply not true.

The upcoming changes to UK Copyright law are necessary in order to bring UK law into line with changes at an international level – the World Intellectual Property Organisation Treaties of 1996 and the EU Copyright Directive of 1998.

UK Government is taking a minimalist approach, so that it is only making changes to UK copyright law that are necessary to bring it into line with these international developments.

Currently, UK Copyright law has approximately over 40 exceptions that allow private individuals, librarians, schools, the visually impaired to make use of copyright works without requiring the copyright owner’s consent. After the changes to UK copyright law, there will be even more exceptions.

The changes to UK Copyright law will make it quite clear that if rights owners (and that's a big if) use encryption or other digital technology to control access to works, they must make it possible for users to continue to access those works where the law provides for specific exceptions such as for private research or study.

The 'XXX provision' (so-called because it hasn’t yet been allotted a clause number in the UK Copyright Act) is a back-up provision that would enable a user to complain if legitimate access is denied.

It seems to me (and, yes, I'm also a copyright lawyer) that this is absolutely the right approach. Digital delivery of content is still in its infancy. Business models are still being developed. In that environment, rights owners should be encouraged to develop voluntary solutions to these issues, with legal sanctions as a back-up – and not the other way round.

Think about this. If someone has a right of way over a piece of land, the first thing they’ll do is to ask the landowner to allow access. If that’s refused then, fine, there are always legal remedies. It would be odd if ramblers set off with a court order every time they went out for a walk!

It is easy to characterise rights owners as media conglomerates. But it's just as important for individual creators – photographers, musicians, artists, designers and writers – to have a clear legal framework to allow them to use the Internet and other new media as secure delivery channels.

Rights owners are not in the business of locking up content. They exist in order to encourage creativity and to provide the means to enjoy it. Copyright law has always been about a balance between rights and exceptions. And that continues to be the case. Sorry Mr. Esler – case dismissed.

Yours sincerely

Laurence Kaye

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