COPYRIGHT LESSONS LEARNT AND 30 YEARS SINCE THE

COPYRIGHT LESSONS LEARNT AND 30 YEARS SINCE THE CDPA 1988 PROFESSOR CHARLES OPPENHEIM c. oppenheim@btinternet. com

MY THEMES FOR TODAY What worked well in the passage of the 1988 Act What hasn’t worked well Lessons learned What we need to be asking for in the future

WHAT WORKED WELL It brought a much-needed updating of the earlier law to take into account technical developments and cultural changes It made library exceptions more up to date The Government did listen to reasoned arguments NB the law has changed many times since, thanks sometimes to EU Directives and sometimes by UK initiatives, such as the Gowers and the Hargreaves Reviews – my next slide refers to all changes, not just those in 1988 Act Not going into details on the current law in this talk

A REMINDER OF SOME OF THE KEY FEATURES INTRODUCED 1988 ONWARDS Restricted Acts, including copying, communicating to the public (ematerials), lending and rental (with library exceptions) Duration amended in some cases Fair dealing, including non-commercial private study, any type of criticism or review, news reporting, judicial proceedings updated Library exceptions for prescribed libraries (which are fairly well defined) clarified Exceptions for visually impaired New rules on Crown and Parliamentary copyright Protection for databases – as copyright and/or under database right New stuff on orphan works Introduction of Moral Rights (Paternity Right must be asserted) New Text and Data Mining exception – UK currently leads the world on this

WHAT’S NOT WORKED The law is still ambiguous For example, “non-commercial” and “commercial” are not defined Contractual terms can all too often over-ride exceptions to copyright TDM exception is tempered by a Government advisory note that rights owners can stop TDM activities if such activities affect the performance of their systems; used by some to threaten to cut libraries off if their clients use the exception Requirements on libraries to keep records of exceptions requests – ever been asked for? Others?

LESSONS LEARNED Important for LIS profession to work together Role of LACA especially important – it wants to hear of problems and barriers encountered LACA has channels into HMG, and will gladly work with other bodies representing the LIS community or parts of it, or related organisations But LACA is volunteer-based, whilst rights owners and their lobbying organisations are well funded There is a need for individuals and groups to help prepare journal articles, books, briefing papers and lobbying materials Need for validated evidence of problems caused by the law, or the need for clarification of the law

POLITICAL LESSONS LEARNED 30 years ago, UK Government was more willing to listen to reasoned arguments than European Commission officials were on draft Directives. Yes, those unelected officials really were arrogant then. European Parliament has more muscle than 30 years ago, and Commission can, and sometimes does, give way, but proposed Digital Single Market Directive shows unelected Commission staff do push through things against popular opinion even today HMG unable/unwilling to put EU-based orphan works exception into UK law in case of no deal Brexit Politicians can make their name on draft copyright legislation; in the late 1980 s, a young ambitious opposition politician did just that with his excellent forensic analysis of the Bill that preceded the 1988 Act….

WHAT WE NEED TO BE ASKING FOR IN THE FUTURE This is my personal shopping list – some are currently LACA policy, some are not (yet? ) HMG is currently reviewing the success or failure of the Hargreaves exceptions, but there are no plans for a major overhaul of the law at the moment EU proposals on the Digital Single Market, including a possible “link tax” may turn out to be relevant in changing UK law Some countries have introduced laws that require research outputs from publicly-funded research to be made available immediately (or after a set period of time) under CC and this over-rides any contract author might enter into with a publisher – good initiative, which should be built into our © law

MY SHOPPING LIST – IN NO PARTICULAR ORDER Need a helpful, pragmatic definition of “commercial” (and by default “non-commercial”) together with an agreed list of illustrative examples. For example, if I am doing research for a piece of work for which I will only get my expenses refunded, is that research for a commercial purpose? Section 21 of the Trade Marks Act 1994 and the Intellectual Property (Unjustified Threats) Act 2017 for patents, make it an offence to make unjustified threats of an infringement action when someone has not in fact infringed. The person or organisation so threatened can get a declaration that the threats are unjustified, an injunction again any repeat of the threat, and can sue for damages. This should be extended to © law.

Government guidance on TDM, encouraging rights owners to suggest their systems are being corrupted by TDM users, should be withdrawn A fundamental one: exceptions to © should be user rights, and so cannot be over-ridden by contract, or, e. g. , by statements in books “no part of this may be be copied…. . ” unless preceded by the key words “except as permitted in law…. ”, or by TPMs All fair dealing should cover all media types without exception (excuse the pun) The scope of the “judicial” exception should be clarified with examples Exceptions should combine the US approach and civil law approach, i. e. , a list of precise exceptions purposes (as now) PLUS a flexible “fair use” exception applicable to other purposes, which can take account of technological and cultural changes.

The orphan works law needs to change. Lifetime for unpublished ones should be based on an assumption made about its date of creation, and then lifetime is that + 70 years. Complexity of orphan works licensing schemes is not justified either. Moral Rights should never need to be asserted – they should be automatic, like © itself. More Moral Rights should be made unwaiveable The Moral Right of integrity doesn’t currently apply to translations of the original work, but should do so. The original creator should be able to sue if a translation is so poor that it gives a misleading impression of what had been written.

It should be an offence to claim © in something that you did not create or were otherwise not entitled to. It should be an offence to impose incorrect restrictions to materials that has been made available under a CC licence. Is there any way the bureaucracy involved with keeping records of library copying can be reduced? Library exceptions should be built into the Berne Convention. They aren’t at present, and an attempt in 1992 failed for lack of support. Time to try again! Libraries, archives and other not for profit cultural bodies should have the right to digitise out of commerce works and make the results available for NC use Terms in the CDPA like “dedicated onsite terminal” should be amended to take into account modern technology

s 296 ZE of the CDPA 1988, where, if a TPM is preventing access to something you are entitled to under an exception to copyright, you have to apply to the Secretary of State to get the TPM lowered must be changed. Difficult, bureaucratic process, almost never used. Need an effective, rapid and efficient method instead. I would like to see a complete renumbering of the Act, so nonsenses like “ 296 ZE” vanish I would like to see the long © lifetime for unpublished literary works removed I am opposed to abolition of ©; it serves a purpose. I am opposed to services such as Sci-Hub which deliberately infringe ©. But I would like lifetime to be reduced to life + 50, with a long term view to maybe reduce it even further.

THE WISH LIST N. B. Also the threat of loss of the EU exception to © for orphan works in case of a no-deal Brexit shows just how vulnerable our © laws are because of HMG lack of priority for user needs But are there any other suggestions that should be added to this list? HMG has asked for comments in a review of the impact of the 2014 Hargreaves changes. LACA is preparing a document. Closing date for comments to HMG is 10 April. Here’s your chance to help LACA with your own ideas! Ideally, also respond directly to HMG: for details, see https: //www. gov. uk/government/publications/call-for-evidenceto-review-2014 -copyright-changes