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Hargreaves Review - update at December 2012

16 January 2013

Hargreaves Review update at December 2012

Threat of UK government’s ‘piecemeal’ approach to changing copyright law
As we have explained previously, the Government has presented us with two difficult issues at the same time. One is the Hargreaves Review – proposed changes to copyright exceptions, introduction of extended collective licensing and orphan works provisions. The other – which was unexpected – is the method by which the Government intends to change the UK copyright law.

On Hargreaves itself, we are still waiting to learn the Government’s proposals. What changes to copyright exceptions will it propose? Will there be exceptions for broad quotation and parody? Wider free educational use? The responses to the last Government consultation were submitted back in March, and the Government promised a White Paper in Spring 2012. A White Paper is the prelude to a bill – which after full Parliamentary debate and scrutiny will become an Act of Parliament.

No White Paper has been published, nor have the proposed exceptions.
Instead, the Government introduced – piecemeal – “enabling” clauses which will enable Hargreaves (exceptions, ECL and orphan works) and other copyright provisions (most surprisingly shortening the duration of copyright protection – including for many pre-1989 films) to be introduced by Government Order – rather than by full Parliamentary (”primary”) legislation.

We – and many other very significant copyright owners including major news agencies AP, ITN, the Press Association, Reuters and Getty Images – with the support of others including BAPLA, Bridgeman Art Library, Corbis, the Chartered Institute of Journalists, Magnum, the Royal Photographic Society and very many others – are working hard to try and prevent the UK copyright law from being changed in this way, as it would mean that the measures would not receive full Parliamentary scrutiny; and as they could be introduced at any and various times, the resulting uncertainty would produce an adverse climate for investment in UK copyright industries – including ours, for digitising, preserving and developing online licensing models.

For example, how would a power to shorten copyright protection be used? Pre-1989, copyright content could become public domain by Government Order. These clauses will soon be debated in the House of Lords, where we believe they will meet significant opposition from a number of peers.

At the same time, the Government’s Intellectual Property Office is holding meetings intended to establish the “rules” which would apply to ECL and use of orphan works: addressing questions such as what is needed for a body offering ECLs to be representative of the relevant right holders, and how would right holders “opt out”? FOCAL International is participating and many other right holders’ representatives share our concerns, especially about ECL.

Copyright Hub
We have previously mentioned the Government’s proposed Copyright Hub – some kind of portal which right holders can use, perhaps to link would-be buyers to their websites and to sites giving information about the sector. Unlike changes to copyright law, participation in this is intended to be entirely voluntary. A steering group has been formed, and Sue Malden represents FOCAL on it. This is very good news for members, as it will give an opportunity for archives’ interests and needs to be taken into account as the Hub develops. They will meet next in January, and Sue will be keeping us informed of progress.

Hubert Best
FOCAL International’s legal advisor
+44 (0)7956 339894
+46 (0) 705 98 88 36
hubert.best@hubertbest.eu