The government's fourth IP minister* in less than two years took office at the Department for Business, Innovation and Skills last week, but her predecessor has left a few undetonated hand grenades in her in-tray. One of them concerns using other people's copyrighted works for free – whether they like it or not.
They're all consequences of the Hargreaves Review - which was supposed to simplify and modernise copyright "for the digital age" - but which critics say does the opposite, allowing amateurish meddling to tie up the courts for years.
One grenade has alarmed photographers, as it apparently allows anyone to "quote" a photo in its entirety, bypassing the need to pay the creators – let alone ask their permission – and potentially nuking the market for images.
These are markets the government hoped its soon-to-be-unveiled Copyright Hub would stimulate, making licensing as easy as a right-click.
The problem lies buried in one of the three new Statutory Instruments (SIs) which modify part of UK copyright law. Section 30 of the current Copyright, Designs and Patents Act 1988 refers to "Criticism, review and news reporting". Using an SI (which avoids the need for Parliamentary debate) the government wants to wedge the word "quotation" into the section. So section 30 of the law becomes the "Criticism, review, quotation and news reporting" exemption from existing copyright law.
But nowhere has the government defined what "quotation" actually means. So these must be therefore be defined by the courts, adding to the risk and expense for copyright users, but increasing the wealth and happiness of m'learned friends.
The proposed SI adds the following words:
(1ZA) Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that— (a) the work has been made available to the public,
(b) the use of the quotation is fair dealing with the work,
(c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and
(d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).”
One extra addition - common to all the government's new Hargreaves-driven SIs - forbids a private contract from trumping the exception. This is a huge and controversial historical change that scrutinizing committees have already laid into. But that's another story.**
The dangling reference to "specific purpose" will also be left to courts to explain. No evidence of any economic gain has been advanced to justify the change.
So if (when) the draft goes through, will you be able to "quote" an entire photograph? It appears there's nothing to stop you. And the owner will no longer be able to bring an infringement case against the user. Will newspapers be able to rip photos off each other? Quite possibly - and a court will have to decide if it's lawful or not. This has a massive impact not just for those who make their living from licensing photographs, but amateurs who post to Flickr or Instagram and then find the image lifted and used elsewhere.
The government ignores red flags
At the start of the month BAPLA, the trade body for picture agencies and photo libraries, wrote to Parliament's secondary legislation scrutinizing committee, pointing out how broad and ambiguous the proposed changes were. In the opinion of QC Richard Spearman, they went far beyond what an EU member could introduce via secondary legislation.
In the letter, seen by The Register, BAPLA's Jonathan Lockwood argues that the government cannot smuggle through wide-reaching legislation via SIs, which are used for regulatory tweaks. The government argues that the 1972 European Communities Act allows it to make regulations "… with matters arising out of or related to any such obligation or rights".
"This cannot be true," writes Lockwood, "as otherwise the government would be able to use secondary legislation to introduce new laws impacting human rights and the like… it cannot do this."
The British Copyright Council has also written to the committee, raising the same points. It also adds that in the EU copyright exceptions can only be applied "in special cases" - and only when they don't interfere with normal, commercial business as usual. They cannot be commandeered, as Hargreaves and the IPO appear to have done, to steer national policy in an entirely new direction. In other words, if you fail to get your policies in through the front door, you can't use SIs as a back door.