The government has bungled proposed changes to UK copyright law by claiming the format of eBooks can be legally changed - for example, from the Amazon kindle format to a PDF. The changes were published yesterday as the last debris of the Hargreaves Review to wash up on the statute book. (The rest has either been implemented or dropped).
The changes create huge ambiguities, as they forbid contract law from over-riding the new legislation - which is in likelihood unconstitutional. Richard Mollet of the Publishers Association gave an illustration:
"The legislation says – and it's in most of the five statutory instruments published yesterday - is that nothing in a contract that purports to restrict this act is enforceable - so I can't enforce the contract terms. At the same time, it says a publisher should be able to restrict access. So which is it?"
The government also revived its much derided "impact assessment" from 2012 which nonsensically claims that "parody is illegal". All in all, not a great day for Vince Cable's BiS.
So what's going on, then?
Under EU law, member states are permitted to add exceptions to their national copyright law for a narrow list of agreed uses. The UK appears to have decided to "max out" its freedom to implement such exceptions, and implement every one on the list that it could.
Thanks to changes made last year, these come in the form of regulations called Statutory Instruments that allow the bureaucrats making the changes to dodge the usual Parliamentary scrutiny required for new legislation. The exceptions cover a variety of uses, some more controversial than others.
Problems tend to arise because the bureaucrats writing the legislation aren't experts in copyright law - they may have been working on sheep quotas last year and might be working on building regulations next year. Ministers rotate too, for example we've had six copyright ministers in as many years.
In the case of the Statutory Instruments, the bureaucrats decided to make the changes open and ambiguous, with copious "Explanatory Notes" that add to the confusion, since these Notes are formal legal guidance. The stipulation that contracts cannot be enforced is merely one example of creating legislation with two contradictory meanings.
So, those five statutory instruments...?
The five exceptions – which make changes to the Copyright, Designs and Patents Act 1988 – cover educational use, non-commercial research use (data mining) and personal copies.
Another area makes a formal exception for parody or satire. A blizzard of test cases is expected just for this exception. For example, you can create a parody of a Dan Brown book by scribbling on every other page. Artistically, that's a perfectly valid "parody", and there's nothing Dan Brown or his publisher could do to stop it. Once sold for 50p, it threatens the market for the publisher's Dan Brown books, and this is why most countries don't make an exception for parody - figuring quite reasonably that parody is alive and well without it. Lawyers can be sure to get rich as the test cases will test the changes to the law.
The "personal use" changes throw the eBook market into confusion, as they misleadingly suggest that the buyer can then strip the book of DRM. In fact, Mollett explains – and two other legal experts we spoke to corroborated this – a publisher can implement protection (like DRM) when a purchase is made "at the time and place of the user's choosing". Stripping it would put the user in breach of EU law.
"It's ridiculous to say hacking the DRM is possible because pretty much 100 per cent of the time it will be illegal," said Mollett.
EU copyright law distinguishes between a right to make copies, covered in Article 5(2), and "communication to the public", aka the "making available" right covered in Article 5(3).
Spotify streams and Kindle and iTunes come under Article 3. The UK isn't permitted to allow format-shifting under Article 5(3) - that's a 5(2) matter. Such fundamentals seem to have eluded the UK Intellectual Property Office, which drafted the law. ®