Over the past decade the use of copyrighted works by consumers has been t
ermed ‘fair use’,‘private copying’ or ‘non
commercial use’. These terms are loosely based on existing provisions,
such as the fair use defence in US law, the private use provisions in civil law European countriesand the Creative Common license terms. The boundaries of what may constitute fair use, privatecopying or non-commercial use are fluid, in popular use and law. The US fair use defence sits moreeasily with UK law and traditions than the private use provisions and accompanying levies of civillaw European countries. This is because both the UK and the US have developed their fair use andfair dealing defences on the basis of the common law principle of fair abridgement. But the openended nature of the fair use defence has in practice led to great uncertainty about what is and whatis not legal under US copyright law. Cases only make it to the courts if they have significanteconomic value and courts are therefore unable to set the boundaries of an open ended provisionas new technologies emerge.The appropriate starting point for the UK would be to map those uses it wants to legalise and thendesign the most appropriate copyright exception. The exception should be specific enough to onlylegalise uses that do not impact negatively on artists and investors in copyright, and broad enoughto remain relevant as consumers enjoy copyrighted works in an ever increasing number of formatsusing newly emerging technologies. The options outlined below are compatible with EU law. In thecase of the extended back-up exception, the format-shifting exception and the non-commercial useexception any significant economic damage incurred by the copyright owner would need to bequantified and fairly compensated. Because these exceptions allow consumers to copy content theyhave purchased or otherwise legally acquired the economic impact on copyright owners is likely tobe negligible. A recent literature review we commissioned on
The economic evidence that format-shifting, parody and user-generated content cause any kind of economic damage to rights-holders simply does not exist.
Options for the updating of UK copyright law:
Extend the exception for back-up to any computer programmes, ie software, and all othertypes of copyrighted works
Introduce a technology neutral format-shifting exception for all types of work individualsacquired legally. Individuals are not allowed to communicate these copies to the public
Options for future proofing UK copyright law:
Extend the existing fair dealing for research and private study to all types of copyrightedworks
Introduce a technology neutral non-commercial use exception, allowing individuals to copycopyrighted works they have legally acquired for non-commercial purposesThis exception would cover all instances where consumers format-shift, space-shift, back-up orotherwise copy to enjoy the music, film, e-books etc on different hardware and software. Because itis technology neutral and applies to all works the exception would remain relevant as newtechnologies and formats emerge. This option would not legalise copyright infringement throughpeer-to-peer filesharing, as it does not allow consumers to make copyrighted works available to thepublic.
Introduce fair dealing for caricature, parody or pastiche, allowing the copying and thecommunication to the public of the caricature, parody or pasticheThis provision should be technology neutral, cover all types of work, and have the usual fair dealingcriteria applied, ie whether the use was substantial, in the public interest, and whether the use had asignificant negative economic impact on the copyright owner. Such a provision would cover usergenerated content, where users copy parts of a copyrighted work to create a recognisablecaricature, parody or pastiche and communicate their work to the public. A recent example of user-generated content that would fall under such an exception is the
caricature. EUlaw does not limit an exception for caricature, parody or pastiche to non-commercial use byindividuals, therefore the exception can also cover works such as the
Newport State of Mind
and the Conservative Party’s
Fire up the Quattro. It’s time to change