Submission to Consultation on Copyright: Exceptions

In my previous post about submitting a reply to the UK government consultation on copyright, I concentrated on one area, that of orphan works. That's arguably the second most-important topic that the report discusses, not least because of the...

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In my previous post about submitting a reply to the UK government consultation on copyright, I concentrated on one area, that of orphan works. That's arguably the second most-important topic that the report discusses, not least because of the huge potential liberating orphan works has. But without doubt, the most important area is that of exceptions to copyright.

That's for the simple reason that exceptions are the easiest way of tackling copyright's poor fit for the digital age. In particular, many of the nominally illegal activities that are absolutely routine online – for example, sharing copyright materials as part of user-generated content - could be covered by exceptions.

It's worth noting that submissions to the consultation must be sent by 21 March, so time is beginning to run short. This is a hugely important opportunity to influence the future direction of copyright in the UK – truly once in a generation – and I urge you to take it. What follows are my responses to Chapter 7 of the consultation, which cover questions 67 to 103.

67. Do you agree that a private copying exception should not permit copying of content that the copier does not own?

There are two big problems with limiting the private copying exception to content that the copier owns. First, there is the general one that people may not see that as a sensible point to draw the line, since sharing digital content with friends online is now a widespread practice, particularly among younger people. The second issue is that the copyright industry has adopted the approach of licensing material to people, rather than selling it to them, in many cases. This means that people do not "own" the content anyway.

The only easily-defensible distinction that the vast majority of people already recognise is between commercial and non-commercial sharing. Indeed, it is striking how the Consultation document itself constantly makes that distinction. This places the emphasis on how content will be used, not where it came from, which is far more sensible, since it is practically impossible to police the origin of digital files, which are all identical.

68. Should the private copying exception allow copying of legally-owned content for use within a domestic circle, such as a family or household? What would be the costs and benefits of such an exception?

Again, I think this is impossible to police. The most useful distinction is between non-commercial sharing, and commercial sharing. I don't believe there would be significant costs in allowing this because it is already happening: this would simply normalise the situation.

69. Should a private copying exception be limited so that it only allows copying of legally-owned content for personal use? Would an exception limited in this way cause minimal harm to copyright owners, or would further restrictions be required? What would be the costs and benefits of such an exception?

I think it would cause minimal harm, because such copying is already routine. It would merely legalise current practice.

70. Should a private copying exception be explicitly limited so that it only applies when harm caused by copying is minimal? Is this sufficient limitation by itself, or should it be applied in combination with other measures? What are the costs and benefits of this option?

It's hard to see how private copying could cause harm, so this would be an unnecessary, and unhelpful complication that would weaken the exception greatly.

71. Should the current mechanism allowing beneficiaries of exceptions to access works protected by technological measures be extended to cover a private copying exception? What would be the costs and benefits of doing this?

This is crucially important, because currently DRM is an extremely dangerous way for companies to override the law – in this case, exceptions. If such legally-protected means are allowed to override exceptions or fair dealing, they effectively nullify it. The argument that allowing circumvention will encourage copyright infringement is manifestly beside the point: even though it is illegal to circumvent DRM, people do it, and copies of all content are freely available on the Internet. Allowing legitimate circumvention will not change that in any way, so the only effect of DRM is to block legitimate uses of content.

Moreover, there is a particular benefit in allowing private copying: it would legalise the viewing of DVDs, say, on GNU/Linux systems. Currently, the only way to do this is to use software that effectively circumvents the DRM. For some people, that is enough of a problem for them to avoid using the free operating system, which limits its uptake among the general population. Allowing DRM to be circumvented for private copying would therefore give a boost to free software, which would bring direct economic benefits for end users.

72. Should the preservation exception be extended:

- to include more types of work?
- to allow multiple copies to be made?
- to apply to more types of cultural organisations, such as museums?
How might this be done, and what would be the costs and benefits of doing it?

Clearly, the law needs to be updated to reflect the technology of today. Not doing so simply condemns libraries and archives to be stuck in the past, with negative knock-on economic consequences for the UK. The simplest way of doing this would be to extend the current approach to all media – including those not yet invented – in order to make the law apply to future situations as well as current ones.

73. Is there a case for simplifying the designation process which is part of Section 75? How might this be done and what would be the costs and benefits of doing it?

There is, because traditional categories like "libraries" now embrace all kinds of new organisations. This means it is important not to limit the designation process to older institutions.

75. Would extending the copyright exception for research and private study to include sound recordings, film and broadcasts achieve the aims described above? Can you provide evidence of its costs and benefits?

Again, this is simply a matter of updating the law to reflect modern technology. It is not about extending it in any true sense. The benefits would be making research and private study more relevant to the modern world, rather than condemning them to live in today's dusty corner bound by older media.

76. Should the copyright exception for research and private study permit educational establishments, libraries, archives or museums to make works available for research or private study on their premises by electronic means? What would be the costs and benefits of doing this?

This would boost the relevance of materials that such establishments could offer members of the public, and is to be welcomed. There would be a very clear benefit of doing this: materials viewed in libraries etc. would not displace sales, but rather drive them. One of the biggest problems is making people aware of what is available, and widening copyright exception in this way would do that.

77. Would an exception for text and data mining that is limited to non-commercial research be capable of delivering the intended benefits? Can you provide evidence of the costs and benefits of this measure? Are there any alternative solutions that could support the growth of text and data mining technologies and access to them?

This is an absolutely crucial exception for research, since the next level of understanding will come from applying powerful computers to large-scale bodies of text and data. By definition, it is very difficult to get copyright clearance for such large holdings, so an exception for text and data mining is indispensable. There is no other obvious way to carry out such data mining, which is based on scale, and asking for permission does not scale.

83. Would making this a "fair dealing" exception sufficiently minimise negative impacts to copyright owners, or would more specific measures need to be taken?

I agree that a "fair dealing" exception would be the best way to approach this area: rigid definitions will be hard to frame and inevitably unsatisfactory.

85. How should the Government extend the education exceptions to cover more types of work? Can you provide evidence of the costs and benefits of doing this?

Again, this is simply updating the law to reflect the progress of technology: there shouldn't be any discussion about it – it should be automatic.

86. Would provision of "fair dealing" exceptions for reprographic copying by educational establishments provide the greater flexibility that is intended? Can you provide evidence of the costs and benefits of such an exception?

Yes, "fair dealing" seems an eminently sensible way to do this because it extends current practice and doesn't require any radical overhaul of existing systems, just their extension. That will clearly be cheaper to implement, and less stressful for all concerned.

87. What is the best way to allow the transmission of copyright works used in teaching to distance learners? What types of work should be covered under such an exception? Should on-demand as well as traditional broadcasts be covered? What would be the costs and benefits of such an exception?

Once again, this is simply a technological shift, and should be implemented automatically. As we know, the Internet abolishes distance, and so distance learning is no different from on-site learning.

88. Should these exceptions be amended so that more types of educational body can benefit from them? How should an "educational establishment" be defined? Can you provide evidence of the costs and benefits of doing this?

Yes, for the reason given in my answer to question 73.

90. How should the current disability exceptions be amended so that more people are able to benefit from them? Can you provide evidence of the costs and benefits of doing this?

Again, the law should be technology-neutral here, so current exceptions need extending.

94. Should the current exception for criticism and review be amended so that it covers more uses of quotations? If so, should it be extended to cover any quotation, or only cover specific categories of use? Can you provide evidence of the costs or benefits of amending this exception?

Trying to define specific categories of use makes the system unwieldy, and is likely to stifle creative uses. The benefits of amending this exception would be a greater willingness of entrepreneurs to create new services in this area: uncertainty about the boundaries of the exception will act as a disincentive.

97. Would there be additional benefits if all three types of exception examined by this section were combined?

This would be the optimal solution, since it would produce a clear, and more readily understood set of rules.

103. What are the advantages and disadvantages of allowing copyright exceptions to be overridden by contracts? Can you provide evidence of the costs or benefits of introducing a contract-override clause of the type described above?

The disadvantage is very simple: it would gut all of the proposed exceptions completely, thus negating their benefits. It is crucial that the government make clear that any contract term purporting to prohibit or restrict the use of an exception is unenforceable.

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