Analysis The dog-ends of the “Google Review” of copyright sailed through the Lords yesterday and will become law on 1 October – creating work for the courts and quite possible, legal headaches for the government.
Having given itself the power, last year, to make sweeping changes to copyright by the back door – through secondary legislation, or Statutory Instrument – the government has introduced several new copyright exceptions. Yesterday saw the final three approved by the Lords, but not without a barrage of criticism.
The exceptions have been strongly criticised by Parliament’s oversight committee, JCSI (Joint Statutory Instruments Committee), on two main grounds. All the new regulations override private contracts, a cornerstone of English (now UK) law for hundreds of years. In addition, the government may not have the power it thinks it has to make such sweeping changes via a Statutory Instrument.
A judicial challenge over one of the Statutory Instruments, which permits the private copying of material for personal use, may also contend that it’s illegal to do so without offering compensation - as almost all EU states do.
On top of all that, critics such as photography trade association BAPLA contend that it may be illegal under both EU law and the Berne Convention to destroy someone’s means of making a livelihood where a market for their work already exists.
A Lords amendment “that this House regrets that the Regulations fail to take account of concerns raised by the Secondary Legislation Scrutiny” was rejected yesterday.
The new copyright exceptions remove the ability of owners to seek compensation or prevent unauthorized use in private copying, parody and quotation. It’s the unintended consequences that critics really fear. Judicial Reviews examining whether two of the three exemptions are fit for purposes are a distinct possibility, sources tell us.
“The regulations are carefully and narrowly drafted to ensure that they give people greater freedom to use creative content, without undermining copyright’s important role in supporting our creators and creative industries,” said Baronness Neville-Rolfe, the seventh copyright minister in seven years and the fourth to oversee the Hargreaves Review into IP, the so called “Google Review” which recommended the exceptions.
The "Google Review" (as it was referred to in the House) was the brainchild of former Tory strategist Steve Hilton, who is married to Google executive Rachel Whetstone, and the Review was announced in 2010 by David Cameron – citing the demands of the Californian consumer data processing giant.
“The founders of Google have said they could never have started their company in Britain,” said Cameron in 2010, although it later turned out that quote could never be found. (In fact, Google enjoys the same safe harbour exemptions in Europe as it does in California - these being broad exemptions for internet service providers).
Although Hargreaves rejected the introduction of US-style “Fair Use” principles into UK law, Google may get what it wants anyway, if judges permit it to do so. Lord Stevenson, moving an amendment, was one of several peers who said such sweeping and historic changes should have been made in Primary Legislation, where they would have received full Parliamentary scrutiny, rather than smuggled in the back door, via a Statutory Instrument.
'Fair compensation can mean no compensation'
We covered one problem with the parody and quotation exception here last week – giving publishers and giant internet companies the ability to "quote" amateur and professional photos in their entirety. The law doesn’t define what parody is - the Courts must now do that.
“Changes have been carefully developed with wide and extensive consultation,” said the baroness. Indeed they have, being published in 2012. Several hundred groups raised objections such as the absence of a definition of a “parody” and the Government defiantly ignored them all. But the minister was adamant and ruled out a levy system for rights-holders:
“It will not allow someone to give or sell a copy they have made to someone else, or share copies from their personal cloud; it will not allow someone to obtain a copy from sources they do not own, such as rented copies, broadcasts or on-demand services; it will not prevent copyright owners from using technology to guard against copyright piracy, such as the copy protection for films found on DVDs and Blu-ray discs; and it will not prevent copyright owners from licensing additional services, such as cloud services which allow shared access to content.”
The thorny problem of compensation was only partially addressed by the minister. The EU copyright directive in Article 5(2)(b) says that members may introduce a private copying exception but if they do, compensation should be paid. The French “add €15 on top of the price of an MP3 player”, Baroness Neville-Rolfe pointed out.
But the directive doesn’t say that the compensation should take the form of a levy, just that there should be some compensation, and nobody, not even the rights-holders, have really pushed for a levy.
“The government do not believe that British consumers would tolerate private copying levies. They are inefficient, bureaucratic and unfair, and disadvantage people who pay for content. That is why the government’s exception is narrow in scope. It will not allow you to give or sell copies to others, and therefore will not lead to lost sales to copyright owners, making the need for a levy unnecessary,” said the minister.
So, if not a levy, why not a pot of money to (say) help disadvantaged artists? That would allow the government to be safely comply with EU law.
The Minister said “fair compensation can mean no compensation, as long as the exception causes no, or minimal, harm, or if an appropriate payment has been received. This is how the exception before us has been designed, and it therefore falls within the margin of discretion that the directive allows.”
Only one peer defended the exceptions - Lord Erroll: "Those old laws managed to adapt to encompass the physical sale of performances that were recorded, such as music, films and so on. But now, in the internet age, they need some major modernising modifications," he told the House.
Hargreaves' changes were supposed to bring UK copyright “up to date”, make it more respected, as well as simpler and clearer. But have a look at the quirks the changes have introduced. You must to delete your own digital copy of an MP3 if passing it to a friend. And the exception doesn’t apply to eBooks acquired through Kindle (as we explained here), although the minister mistakenly insisted that it does (Col 1580… “This is aimed at consumers who have paid for content and support the creative industries by paying for music, films and books.” [Our emphasis].
In addition, what is a parody and what isn’t, and how much of the original you can use, now becomes an open matter for courts. That’s aside from the constitutional and possible legal challenges that could dog the final days of the UK's current coalition government. ®