SCA Blog

At the Shaping the Future forum at the British Library on February 19, Professor Charles Oppenheim took a close look at the consultative report released by the Intellectual Property Office based on the Gowers Review of IP. He identified the exceptions to copyright covered in the document: educational; format shifting; research or private study; libraries and archives; parody and pastiche, and raised some of the questions and issues that the proposed modifications to these exceptions throw up. Read on to discover Professor Oppenheim’s view of Gowers, and to see the presentation slides from his talk.

The Gowers review

The Gowers review was commissioned by the then chancellor Gordon Brown plus other ministers in 2005. It wasled by Andrew Gowers and provides a general overview of IP and whether it is fit for purpose in the current electronic information environment with a heavy focus on copyright and patents

The report was generally satisfied with current UK IP environment. It noted that technology had moved on and with that people’s use of and expectations of copyright materials had moved on. The report contains a large number of reconnmendations

The process has been much slower than originally predicted – civil servants always seem to underestimate how contentious the matter of copyright is – and the process is not yet over. There is a consultation document and we have until April 8 2008 to submit responses but even then it is not over as it will be followed by a draft statutory instrument and there will be possibilities to lobby again then (though influence may be limited by then).

Exceptions to copyright covered in Gowers

These state that notwithstanding what the law says, there are some circumstances in which someone can copy all or part of a copyright work without having to pay fees or request permission. However, to enjoy these exceptions, strict rules must be followed.

The exceptions in the consultation

Educational
Format shifting
Research or private study
Libraries and archives
Parody and pastiche

What’s not covered in the consultation?

Many contentious IP issues of interest to us, including orphan works were not covered, nor were the use of Technical Protection Systems to over-ride exceptions to copyright

These may or may not get considered in future consultation exercises and presumably will result in a series of statutory instruments over time but means that no point lobbying about them right now

There are also some errors of fact, some grammatical mistakes and some incorrect terminology in the consultation document.

Educational exceptions

A lot of the exceptions refer specifically to acts carried out on site but increasingly educational materials are delivered to remote locations for distance learners – these may be in the UK (at home in a flat half a mile down the road from campus) or abroad.

Possible expansions: encompass distance learning; remove constraint on type of media as Gowers recommended that the exception should be media-independent and instead focus on intent; should there be limits on the types pf materials that can be recorded and/or the types of people who can view it once recorded?

Format shifting

The consultation suggests expanding the exceptions to allow lawful owners (of music in particular) in one format to make a copy in another format for their own private use. Other than length of term for performers rights, this was the bit of Gowers that received most publicity.

But it raises questions – how many format shifts allowed? What if the person loses or gives away the original – should they then delete their copied format (and how would you police it)?

It is wishy washy on the question of TPS preventing such format shifts.

Research or private study

Again, these exceptions raise queries:

Why restricted to literary, artistic dramatic and musical works?
Distinguish between research and private study?
Do researchers and students have problems right now?
What would be the impact?
How to police it?

Library privilege

Again, these exceptions raise queries:

More flexibility on number of copies that can be made for preservation purposes?
More types of materials to be preservations copied eg sound recordings, films, broadcasts?
Extend to museums and galleries?

Caricature and parody

There is no exception in CDPA but EU directives would allow for it

Should we have such as exception and what would its impact be?
Should it apply to all types of work?
What are the moral rights implications (objections on grounds of moral rights)?

The tenor of the consultation document

Extreme nervousness around any kind of change.

Anxiety to please rights holders.

Many questions are posed such as potential costs of changes, which are difficult or impossible to answer (eg potential costs, the financial side of things very difficult to supply)

This meeting is a chance to flesh out some of the messages that the SCA might wish to say in response, even if does not lead to a formal SCA position. A number of the member organisations within the SCA are also preparing their own submissions.

Orphan works

Though not covered by this consultation this issue will come up sooner or later

How much of a problem is it?

Possible solutions: new exceptions, compulsory licences with funds put in a pot for rights-holders (very dodgy as not allowed under the Bern convention), limitations on damages that can be awarded; or perhaps some combination of these

Comment made from the floor by Graham Taylor: what about the possibility of voluntary licences?