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The UK Government has published its Response to the European Commission’s Green Paper on Copyright in the Knowledge Economy. Amongst other things, the Green Paper floated the idea of introducing exceptions to copyright infringement in relation to “orphan” works and user generated content, the former to be based on collective licensing, the latter on a US-style fair dealing exception based on “transformative” use. In relation to orphan works, the Government harbours concerns “about the legal implications of licensing-style arrangements”. In relation to user generated content, to the relief of rights holders, the Government also acknowledges concerns over the extent to which this might undermine copyright protection and impact on remuneration.
Background
The Commission’s Green Paper was published in July 2008. Its purpose was to “foster a debate on how knowledge for research, science and education can best be disseminated in the online environment”. In particular, the Green Paper focused on the nature and extent of existing exceptions to copyright protection under the InfoSoc Directive (2001/29/EC). The Commission acknowledged that the conditions of application of the exceptions were broadly drafted and open to interpretation resulting in inconsistency in implementation at national level. As well as questioning the efficacy of the current list of non-mandatory exceptions in the light of evolving internet technologies, the Commission considered specific exceptions and the possibility of introducing new exceptions for works which are still in copyright but whose owners cannot be identified or located, i.e. orphan works; and a further exception that would prevent the inhibition of the creation of transformative content, for example on user generated content sites.
Both possibilities were put forward by the Gowers Review of Intellectual Property. Gowers suggested that an exception for orphan works could be introduced on the basis of an extended collective licensing scheme and the UK Government addressed the issue of orphan works in its response to the House of Commons Innovation, Universities, Science and Skills Committee Report on the work and operation of the Copyright Tribunal.1 At that stage it acknowledged that the UK will look into the possibility of opening up orphan works to exploitation on the basis that a collecting society will take fee income from the user of an orphan work, subject to the society being satisfied that an appropriately diligent search has been made, and offer an indemnity in the event that copyright was enforced at a later date. The Gowers Review expressly recommended the creation of an exception for “creative, transformative or derivative works”, within the parameters of the Berne Convention three-step test, the aim of which would be “to favour innovative uses of works that stimulate the production of added value”.
The Government’s Response to the Green Paper
In relation to the list of exceptions generally, the Government acknowledges arguments from either side, on the one hand to the effect that there is a fundamental inconsistency in a copyright framework which harmonises rights across the EU, but relies on a series of non-exceptions to those rights at national level, whilst on the other hand the current list of non-mandatory exceptions provide a “useful degree of flexibility” to allow Member States to take account of differences in language, culture and developments.
In relation to the inconsistency, the Government refers to the view that whilst contractual arrangements have evolved for the supply of material across the whole of the EU, these should not be taken as an indication that contract law alone provides the solution. Researchers for example may be involved in co-operative projects which cross national borders, and find that acts which fall within an exception in one country may require permission from the rights holder in another. One view, therefore, is that rather than a patchwork of laws which it is difficult to navigate through at a practical level, a mandatory list of exceptions, consistent across the EU, would better serve transnational co-operation and development. Against that, the Government’s Response also notes that it has been estimated that around 90% of contracts undermine copyright limitations and exceptions. Moreover, those who advocate the need for flexibility point out that it is unlikely that consistency will be achieved either with mandatory exceptions, given the broad interpretation that can be placed on the various concepts embodied within the language of the exceptions.
In these circumstances, the UK Government concludes that before any further action is taken, more work should be done to determine whether national level exceptions could, as a matter of law and practice, be legally harmonised in a way that would make sense for both rights holders and users, also taking into account its impact on cultural diversity across the EU.
Orphan works
As to whether the EU should legislate for orphan works, the UK Government reminds us that this is very much a live issue in the UK, referring presumably to the impetus given to the issue by Gowers. The Government states that it recognises that different types of works require different approaches and that in many cases, collecting societies deal with specific types of work. It nevertheless refers to “some gaps in the coverage of particular types of works, for example old but in-copyright photographs, which do not sit comfortably within the licensing schemes envisaged by those keen to see greater exploitation of orphan works”. Moreover, the Government has concerns about the legal implications of licensing-type arrangements and whilst it is currently looking into the proposition it suggests that ultimately it might be for the EU to lead the way towards some kind of legal solution, “for the sake of clarity and certainty”.
User generated content
On the issue of a transformative use exception for user generated content, the Government’s Response to the Green Paper is more obviously reactionary. It states that the suggestion for an exception of this kind “seems to create a distinction between those who use and those who create works, which in many cases is not justified”. There is also “significant concern” over the extent to which such an exception might allow others to use works in a way that the existing rights holders do not approve and over the impact of exceptions in this area might have on remuneration. An alternative, the Government suggests, would be to deliver improved licensing in order to make it easier for users to create and post material which has been adapted from other sources. The Government says that it is aware that rights holders and creators are already developing ways of permitting the use of their works online. It refers, for example, to the Creative Commons licence and also (now somewhat ironically) the 2007 agreement between the MCPS-PRS Alliance and YouTube which allowed users to include certain musical works in their video clips under a licence given to YouTube. It also states that rights clearance for individual works can be a complex business although it notes that some rights holder are seeking to address this through simplified web based systems (EMI’s system for clearance for sampling, for example). Much more circumspect in this area, the Government suggests that it is important to consider carefully the potential impact on existing rights holders, in terms of both commercial and non-commercial use generated content, before considering any possible exceptions.
Comment
While the Government appreciates both sides of the argument in relation to copyright exceptions, it comes as no surprise that it has batted these issues back to the Commission. Any departure from the terms of the InfoSoc Directive would appear clearly to require a coordinated response across Europe.
The Government has broadly maintained its position on orphan works as set out in its response to the House of Commons Innovation, Universities, Science and Skills Committee report on the work and operation of the Copyright Tribunal. In that response, the Government stated that, whilst its hands are tied until the EU liberalises the legal framework applying to orphan works to whatever extent, it has been looking at creating new voluntary solutions whereby an organisation such as a collecting society would take fee income from the user of an orphan work, subject to the society being satisfied that an appropriately diligent search has been made, and offer an indemnity in the event that copyright was enforced at a later date. The Government acknowledges in this latest response that there are legal issues relating to such licensing-type arrangements, but again suggests that a legal solution at EU level might ultimately be required. Whether an EU solution will be forthcoming is of course another matter.
In relation to user generated content, the Government appears tempted to allow market forces to take their course. Such a policy arguably puts too much faith in the relationships between rights holders and their representatives on the one hand and user generated content sites on the other. Whilst deals are being struck, massive scale litigation, particularly in the US, between the major players in the industry remains extant. This is presumably why the Commission is angling for the introduction of a transformative use exception to copyright based on the Berne three-step test and as such limited to short takings that would not infringe the right of adaptation in any event. However, whether such an exception would result in a reduction in litigation is moot, indeed it may raise as many questions as it answers.
Euan Lawson
Article to be published in Copyright World. Reproduced here with the permission of Informa Law.
1 HC637, 16 June 2008 (http://www.publications.parliament.uk/pa/cm200708/cmselect/cmdius/637/637.pdf)
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