A major legal challenge threatens to put a spike through the Conservative-LibDem coalition's radical overhaul of copyright, including the proposed Instagram-like land grab of photos, source code and other work.
Two years ago, the Prime Minister launched the so-called "Google Review" to investigate making the UK's copyright regulations more Google-friendly. As a consequence of that study, a new law - the Enterprise and Regulatory Reform Bill (ERRB) - was tabled and, if implemented, will grant ministers powers to alter the rules of copyright on a whim.
And the bill allows organisations to sell creative work and keep the proceeds if the author cannot be traced or contacted for whatever reason.
Yesterday a notice to file a judicial review challenging the copyright clauses in the ERRB was submitted to the High Court by a consortium of household names including the world's largest news organisations: Associated Press, British Pathé, Getty Images, ITN, the Press Association and Thomson Reuters.
Companies involved in licensing material commercially, and some of the planet's biggest audiovisual archives, are also part of the alliance.
Filing a judicial review against a draft law is unusual, but not unprecedented, and has become more common in recent years.
The ERRB hands government ministers and their civil servants the power to make sweeping changes to intellectual property law by stealth, affecting large and diverse areas of UK industry. If passed, the bill will allow the Business Secretary, currently Vince Cable, to make these alterations without any scrutiny by Parliament: statutory instruments to put the new rules into play can be issued at any time with little warning.
Orphan works: What happens when someone deletes your metadata?
The ERRB includes two quite specific and radical proposals. One enables the collectivisation of copyright material under an "extended collective licensing" regime. The other proposal permits the commercialisation of so-called orphan works - which are any digital objects without the owners' details attached.
In practice, this is almost every digital photograph and illustration as well as computer source code knocking about on the web. One may well take care to embed his or her contact information in a file, but it is trivial for someone else to strip out that metadata and scatter the material online.
Overseas groups have threatened a "firestorm" of litigation against the UK if the controversial ERRB clauses become law, as the bill imperils the copyright of millions of pieces of foreign-owned content.
The clauses in the ERRB pave the way for the government to implement of the bulk of Prof Hargreaves' Google Review unhindered, thanks to the stealth measure of statutory instruments.
But it's unlikely that any changes to the law can be made in the lifetime of this Parliament: a judicial review of the proposed law, if it goes ahead, would effectively put any changes to the statute books on ice for 18 months. The government will instead be forced to put Hargreaves' copyright overhaul into action via another backdoor mechanism or by writing them into primary legislation - where they arguably should always have been destined to go.
In a statement, the consortium said:
We believe that any changes to the UK’s copyright framework should be industry-led and fully supports the creation of the "Copyright Hub" - an initiative led by businesses and stakeholders to create a digital registry of copyrighted works.
A spokesperson added: “The UK’s content licensing sector is one of Britain’s great success stories, revered throughout the world and characterised by technical innovation and enterprise. The sector contributes billions of pounds to the UK economy and the changes being introduced through the Enterprise and Regulatory Reform Bill have the potential to seriously disrupt a vibrant and growing industry sector. We call on the government to listen to businesses and to work with them in growing the UK’s digital economy.”
The news organisations' legal case is both complex and intriguing. A judicial review cannot usurp Parliament - in other words, it cannot act as a third chamber and throw out bad laws. But it can reject unconstitutional ones. And even though the UK's constitution may be unwritten, that doesn't mean it's either weak or unclear.
The requested judge-led review hinges on the fact that in UK and European law, as well as an international treaty, copyright is a property right. The UK constitution trusts our elected Parliament, not a lone senior minister, to provide protection over citizens' property - making Parliament the citizens' guardian against seizure. However, the ERRB clauses allow a government figure to make startling changes to property rights on the hoof.
Supporters of Prof Hargreaves' copyright review, including Google - which privately lobbied for weakening UK copyright and helped foment the planned overhaul - may now be entitled question the clumsy implementation strategy of the bureaucrats at the UK's Intellectual Property Office (IPO), which masterminded the changes.
The IPO is an agency in the government's Department for Business, Innovation and Skills, although critics refer to it as the office of "Intellectual Property Obliteration". It has long sought to weaken copyright protection: it raced ahead of the Hargreaves timetable by inserting free-standing clauses on orphan works and extended collective licensing (which were not even mentioned in the Hargreaves key bullet points) into the general-purpose ERRB.
These amendments were proposed before the government had announced what it would do about Prof Hargreaves' findings. Now rather than getting half a loaf, the agency's top brass may not even end up with a bun.
The IPO believes copyright is a regulatory impediment, rather than a property right, and theory-based academics share its view. But this is a Humpty Dumpty approach to semantics. What matters is what copyright means in law, not what Humpty chooses it to mean, "neither more nor less". ®