The British government has announced ambitious plans to make significant changes to its copyright law in hopes of helping the UK take better advantage of the changing economic landscape in the digital age.
The proposals are remarkable both for their substance and the procedure planned for the drafting and implementation of the legislative revisions.
The recent announcement came in the form of a governmental response to an earlier report it had commissioned from Professor Ian Hargreaves, titled “Digital Opportunity: an Independent Review of IP and Growth.” In that report, Hargreaves made a number of sweeping proposals to reform British IP laws (most significantly to the copyright law), and the UK government has now broadly adopted those proposals.
The premise of Hargreaves’s report was that several changes to the law were necessary to maximize opportunities presented by changing technologies. Some of the points now adopted by the British government:
1. IP laws are important to growth, but current laws are, in some cases, obstructing growth.
2. The existing legal framework does not adequately deal with the various issues and dynamics created by the ubiquity of digital copying. The challenge here is to balance the need for flexibility with enough certainty to encourage investment.
3. The legislative process for the copyright law needs to be based upon reliable evidence. In recent past, that process has been compromised by (1) “a near total lack of high-quality evidence” and (2) “an overabundance of effective lobbying.” (I just love the way Brits put things! Only something as awful as lobbying can be a problem when it is plentiful and effective!). To reverse this problem, the government will apparently give limited weight to the kinds of non-transparent or methodologically-challenged / biased evidence sometimes favored by lobbyists, and will give the benefit of the doubt to evidence presented by smaller companies without lobbying resources. In all instances, however, the British government will work cooperatively with businesses to help them develop and present high-quality evidence. The government also highlighted that while its focus in developing the new legislation will be on economic growth, “issues of fairness and social impact are also important in the context of IP rights.” Thus, the government promises to consider these policy issues, along with the economic issues, in developing the changes to the copyright law.
4. The British government has endorsed the creation of a “digital copyright exchange” to facilitate one-stop licensing and short-circuit the often byzantine licensing quagmire that creates a drag on the licensed exploitation of works. Crucially, the government is not endorsing a compulsory licensing scheme here, but rather seeks to find a way to incentivize voluntary participation by copyright owners.
5. The government also seeks to develop solutions for cross-border licensing and an “orphan works” solution.
6. The UK plans to significantly expand existing exemptions and privileges. The current “fair dealing” privilege under UK copyright law is considerably more narrow than the US fair use privilege. That is going to change. According to the UK report, “copying should be lawful where its is for private purposes, or does not damage the underlying aims of copyright.” Notably, the report even uses the phrase “transformative use” to describe one of the kinds of uses that should be exempted from infringement liability. The report also finds it imperative that “unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms.”
There are many other fascinating proposals in this report. It will be interesting, to say the least. to see how the UK government moves forward on the very aggressive timeline it has set to implement these proposals.
Here is a copy of the government’s report:
And the original Hargreaves Report, to which the government was responding: