7 Copyright in the Knowledge Economy
| (29869)
12089/08
COM(08) 466
| Commission Green Paper on Copyright in the Knowledge Economy
|
| Legal base | — |
| Department | Innovation, Universities and Skills
|
| Basis of consideration | Minister's Letter of 26 March 2009
|
| Previous Committee Report | HC 16-xxxi (2007-08), chapter 6 (15 October 2008)
|
| To be discussed in Council | Not known
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Cleared
|
Background
7.1 In its review of the single market, "A single market
for the 21st century", in 2007, the Commission
emphasised the need to promote the free movement of knowledge
and innovation as a "fifth freedom" in the single market
and that a key concept in the "knowledge economy" was
the use of intellectual resources such as know-how and expertise.
By reason of its value, and the need to provide its creators with
reward for its creation, most of this intellectual property has
been the subject of protection under national law and by international
convention.
7.2 Member States have long been party to international
copyright conventions, such as the Berne Convention for the protection
of literary and artistic works.[27]
At Community level, Directive 2001/29/EC on the harmonisation
of certain aspects of copyright and related rights was adopted
in 2001. This Directive harmonises a number of issues concerning
copyright and related rights including the right to reproduce
the protected work, to communicate it to the public, to make it
available to the public and to distribute it. The Directive confirms
that the right owner has an exclusive right in these respects,
but provides for a number of exceptions to permit use of copyright
works by libraries and archives, for research and for use by people
with disabilities. The exceptions cover such matters as temporary
copying (e.g. copies made during web browsing or created in the
random access memory (RAM) of a computer, copying for private
purposes, copying by libraries and educational establishments
and copying for the purpose of recording current events and for
criticism and review).
7.3 Directive 96/9/EC also makes provision for
the legal protection of databases. The Commission has analysed
this Directive in a separate report, but a number of issues —
notably on exceptions and limitations- are common to the two measures.
7.4 The Commission reported in 2007 on the implementation
and application of Articles 5,6 and 8 of Directive 2001/29/EC.
We considered this report on 23 January 2008 but did not consider
that it raised issues of sufficient legal or political importance
to warrant reporting to the House, since it contained no proposals
for new measures.
The Commission's Green Paper
7.5 The Green Paper seeks to elicit views on
the exceptions provided for under Directive 2001/29/EC with respect
to the use of works by libraries and archives, the use of works
for teaching and research purposes, and the exception for the
use of works by people with a disability. Additionally, the Green
Paper discusses a possible exception for "user-created"
content.
7.6 In relation to the use of works by libraries
and archives, the Green Paper notes that two core issues have
arisen, namely the production of digital copies of materials held
in the collections of libraries and the supply of such digital
copies to users. On the first of these, the Green Paper notes
that the exception under Article 5(2)(c) of the Directive (which
permits copying by "publicly accessible libraries, educational
establishments or museums, or by archives" where such copying
is not for "direct or indirect economic or commercial advantage")
arguably covers certain acts necessary for the preservation of
works contained in the catalogues of libraries, but that it does
not contain clear rules on "format-shifting"[28]
or on the number of copies which may be made.
7.7 The Green Paper refers to consultation under
way in the UK on the scope of the exception under section 42 of
the Copyright, Designs and Patents Act 1988 (which allows libraries
or archives to make a single copy of a literary, dramatic or musical
work held in their permanent collection for the purpose of preservation
and replacement). The Green Paper notes that it is proposed that
this exception should be expanded to allow for copying and format
shifting of sound recordings, films and broadcasts and to allow
for more than a single copy to be made where successive copying
may be required to preserve permanent collections in an accessible
format.
7.8 The Green Paper notes that private entities,
such as search engines, cannot benefit from the exception under
Article 5(2)(c) of the Directive, since this is limited to publicly
accessible libraries, educational establishments or archives and
then only for acts which are not for direct or indirect economic
or commercial advantage.
7.9 As far as the supply of digital copies to
users is concerned, the Green Paper notes that libraries, educational
establishments and archives may make copies of the work available
if this is done for the purpose of research or private study by
means of dedicated terminals located on the premises of such establishments,
and would arguably not cover the supply of electronic copies at
a distance.
7.10 The Green Paper also raises the issue of
"orphan works" i.e. works which are still subject to
copyright protection but where the owners cannot be identified
or located. The Green Paper notes that, apart from books, there
are "thousands" of orphan works such as photographs
and audiovisual works currently held in libraries, museums or
archives and that the lack of data on their ownership can constitute
an obstacle to making such works available online to the public
and can impede digital restoration. The Green Paper refers to
developments in the United States and Canada and to its own recommendation
of 2006 encouraging Member States to create mechanisms to facilitate
the use of orphan works and to promote the availability of lists
of orphaned works and raises the question of whether any further
measures are required at Community level.
7.11 On the use of works for teaching and research
purposes, the Green Paper notes that although recital 42 to the
Directive indicates that the exception under Article 5 (3)(a)
is wide enough to cover distance learning, this aspect is not
reflected in the text of the Article itself. The Green Paper also
notes that the use of works for the purposes of illustration for
teaching or scientific research is covered differently in the
laws of the Member States, with some extending the exception to
the rights of communication and making available to the public,
whereas others limit it to the right of reproduction or allow
communication to the public only on condition that it cannot be
received outside the premises of the educational institution (as
is the case with the United Kingdom). There are also differences
between the length of the excerpts which can be reproduced or
made available and the institutions which may make use of the
exception.
7.12 As far as the use of works by people with
a disability is concerned, the Green Paper notes that some Member
States have applied the exception only to certain categories of
disability, with the exception being applied only in respect of
those whose sight is impaired whilst others apply the exception
also to those whose hearing is impaired. The Green Paper also
raises the issue of whether there should be any compensation for
the use of works in these circumstances. The Green Paper also
notes that no exception for disabled people is provided under
Directive 96/9/EC on the legal protection of databases.
7.13 Finally, the Green Paper discusses the possibility
of introducing an exception for "user -created" content.
The Green Paper points out that the development of information
technology is leading to users taking a much more active role
and collaborative role in creating works and disseminating knowledge,
such as through blogs, podcasts or video sharing. The Green Paper
refers to an OECD study which defines user-created content as
"content made available over the Internet, which reflects
a certain amount of creative effort, and which is created outside
of professional routines and practices".
7.14 The Green Paper further explains that whereas
the need to clear rights in existing works before any transformative
content can be made available could prevent new, potentially valuable
works from being disseminated, there is no exception under the
present Directive for such transformative user-created content.
The Green Paper suggests that any such exception would have to
be limited in its scope, so as not to infringe the right of reproduction
and to authorise adaptations and seeks views on whether such an
exception should be introduced.
7.15 When we originally looked at the Commission
Paper in October of last year we did so in circumstances where
the Government had not concluded its planned consultation. We
asked the Minister to report more fully once this had been completed.
The Government's view
7.16 The Minister for Higher Education and Intellectual
Property (David Lammy MP) has now replied and in his letter of
26 March 2008 broadly welcomes the publication of the Commission's
Green Paper. The details of the Government's view are contained
in the UK Government's Response to the European Commission's Green
Paper, to which the Minister's letter broadly refers and adds
very little. The Government Response contains useful background
information and detailed consideration of the questions contained
in the Commission paper. It deserves to be reproduced in some
detail:
"UK GOVERNMENT RESPONSE TO EUROPEAN COMMISSION'S
GREEN PAPER — COPYRIGHT IN THE KNOWLEDGE ECONOMY
Introduction
"The UK Government welcomes the European Commission's
Green Paper on Copyright in the Knowledge Economy….
Background context
"The creative industries grew by an average
of 6% per annum between 1997 and 2005 compared to 3% for the rest
of the UK economy. In summer 2006 creative employment totalled
1.9 million jobs, an average growth rate of 2% per annum. This
rose to 4% in 2005-2006. These figures highlight the importance
of creativity and a strong copyright framework to support creators.
However, the landscape within which we work is changing all the
time and we must respond to new issues as they arise.
"The number of households with domestic internet
access rose to over 15 million in the UK in 2007 (61% of all households).
Higher broadband speeds make the delivery of content quicker and
easier. Sites like MySpace and You Tube continue to grow year
on year while 2008 saw the launch of the BBC iPlayer and mainstream
electronic book readers. Consumer expectations on accessing and
using content are changing. In many instances these contrast with
industry views.
"Digitisation and the internet aid the creation
and dissemination of content and open up new markets. However
they also bring challenges. Copying has been made much easier.
Research studies estimate that around 25% of UK internet users
engaged in online music 'piracy' in 2007. New business models
are key but can our industries successfully 'compete with free'?
"Continuing work being led by UK Government
on P2P file sharing by means of an MOU with industry is important
but further action may be needed. Looking forward we need to make
sure that value can continue to be appropriately extracted from
content by our creative interests.
"We believe that there is scope to build on
the Gowers Review and consider a wider range of issues in relation
to copyright. It is vital that we maintain a system that supports
creativity, investment and jobs and which inspires the confidence
of businesses and users.
"A number of the issues raised in the paper
were also the subject of recommendations in the UK Gowers Review
of IP which reported in 2006 and we continue to take forward these
recommendations. The UK government's recently launched Digital
Britain initiative recognises the importance of IP and makes clear
our intention to consider where further changes may be needed
in the UK.
"In making its response to the specific questions
raised in the Green Paper the UK Government has taken into account
views expressed informally to it by a number of industry stakeholders.
GENERAL ISSUES
(1) Should there be encouragement or guidelines
for contractual arrangements between right holders and users for
the implementation of copyright exceptions
(2) Should there be encouragement, guidelines
or model licenses for contractual arrangements between right holders
and users on other aspects not covered by copyright exceptions?
"The issue behind these two questions is the
extent to which, whether in areas in which exceptions apply or
those where they do not, the legal framework alone is adequate
to prescribe the nature of the relationships which should exist.
It is unclear whether any such encouragement or guidelines would
be advisory in nature, or have some normative force. These two
questions do not indicate who, within such a framework, should
have responsibility for issuing and keeping up to date such material.
There are choices as to whether such material originates from
the state or from the industry itself.
"Whatever is done, the legal framework itself
needs to set out the key principles which should govern the relationships
between rights holders and users. There may be scope for guidelines
to indicate, for example, how the relevant legal principles are
or have been interpreted in practice, or to identify pitfalls
which the parties concerned would commonly want to avoid. There
may also be a use for guidelines in situations where technological
developments are moving ahead of the capacity of the legislation
to address them.
"In some areas where licensing is needed it
would be useful to follow a successful model, such as the UK's
JISC (Joint Information Systems Committee) and NesLi2 Model licences.
There is no single general answer to these questions: whether
guidelines or encouragement are required or desirable will depend
on exactly what is contemplated, by whom, and for whom.
(3) Is an approach based on a list of non-mandatory
exceptions adequate in the light of evolving Internet technologies
and the prevalent economic and social expectations?
(4) Should certain categories of exceptions be
made mandatory to ensure more legal certainty and better protection
of beneficiaries of exceptions?
(5) If so, which ones?
"Some of those consulted in the preparation
of this response argue that there is a fundamental inconsistency
in a copyright framework which harmonises rights across the EU,
but relies on a series of optional exceptions to those rights
at the national level. They believe that the practical difficulties
of optional implementation outweigh the benefits of the flexibility
the framework needs to offer, where increasingly information,
and/or people who use information, cross boundaries or have to
work at a pan-national level.
"The fact that contractual arrangements have
evolved for the supply of material across the whole of the EU,
should not be taken as an indication that contract law has been
able to solve these problems. Researchers for example may be involved
in cooperative projects which cross national borders, and find
that acts which fall within an exception in one country may require
permission from the rights holder in another.
"Some have likened this current situation to
a 'patchwork' of laws which is difficult to navigate through at
a practical level. The benefits of 'The Knowledge Exchange' pan-European
initiative are also under threat in the current climate. They
believe a mandatory list of exceptions, consistent across the
EU, would serve to assist transnational cooperation and development.
However, it has been estimated that around 90% of contracts undermine
copyright limitations and exceptions.
"Others believe that the current list of non-mandatory
provisions — to which the Berne 3-step test must be applied
— provide a useful degree of flexibility to Member States.
This enables Member States to take account of the various differences
in language, culture and developments, that prevail in their respective
societies, and to ensure that their copyright framework meets
their particular needs. Those who advocate this flexible approach
to exceptions point out that it is unlikely that consistency will
be achieved even with mandatory exceptions, given the broad interpretation
that can be placed on the various concepts embodied within the
language of the exceptions.
"In the circumstances, the UK government believes
it would be important before taking any further action on this
issue to resolve the question of whether national level exceptions
could, as a matter of law and practice, be legally harmonised
in a way that would make sense for both rights holders and users,
and if such harmonisation were possible, what limiting impact
it might have on cultural diversity across the EU. Work to amend
the exceptions would of course be limited by the provisions of
Berne, and (more restrictively) the INFOSOC directive.
EXCEPTIONS FOR LIBRARIES AND ARCHIVES
(6) Should the exception for libraries and archives
remain unchanged because publishers themselves will develop online
access to their catalogues?
(7) In order to increase access to works, should
publicly accessible libraries, educational establishments, museums
and archives enter into licensing schemes with the publishers?
Are there examples of successful licensing schemes for online
access to library collections?
"These questions deal with access to collections
via two distinct means — curators of national collections
of works, and the publishing industry. The publishing industry
wants to be able to preserve its business models and to earn the
revenues from the distribution of copyright works which are necessary
to preserve the publishing industry. There are already examples
of successful licensing schemes which enable commercial publishers
to make the necessary returns and which enable libraries to provide
access, at a price.
"There is, so far as the UK government is aware,
no particular access problem in terms of libraries who wish to
subscribe in order to use such material. The issue behind the
question seems to be whether libraries, educational establishments,
museums and archives should be encouraged or even mandated to
enter into such arrangements.
"These questions are asking whether such libraries
should be given access, or give their members access, on terms
which are more favourable than those which the institution would
otherwise have been able to negotiate on the open market. This
would put the institutions in a position to compete with the publishers
for the distribution of the publishers' works, leading to lost
sales for the publishers. To the extent that this would reduce
economic returns to the publishers, it has the capacity to damage
existing business models and hence to imperil the availability
of future works.
"The UK's Legal Deposit Libraries Act (2003
Act) allows for the UK's published output (and thereby its intellectual
record and future published heritage) to be collected by the six
prescribed legal deposit libraries. The legal deposit libraries
hold a full and complete record of the published material for
future generations. There needs to be a distinction made here
between libraries who provide access to digital material within
their physical buildings (which is no different to the print system
which has been in operation for 100 years) and those who do so
online (which may conflict with commercial exploitation.)
"There is no evidence that publishers are developing
and sustaining online access to the entirety of their catalogues,
including born-digital works, and it has not been proven under
the current regime that there is an increased risk of loss of
sales to publishers. Furthermore, it would not be feasible to
rely on publishers to supply and maintain full and complete records
for libraries. However, as already noted, there is no obstacle
to individual libraries supplementing their collections by entering
into commercial arrangements with publishers if they wish to do
so. It should be for the institutions concerned, who know most
about what their users want and need, to decide what material
they wish to access, and to come to an agreement with the publishers
concerned.
"Remote access to digital files that are legally
deposited material will create the probability of material being
subsequently copied and shared locally. This does not comply with
the Legal Deposit Libraries Bill. Although it seems reasonable
to allow remote access to and digital copying of online collections
held at legal deposit libraries for educational and research purposes,
usage must comply with the Berne Convention and the 3-step test.
We are currently considering the copyright exceptions in relation
to education and research as we take work forward on the Gowers
recommendations. No final decisions have yet been made in this
area.
"In other cases, such as unpublished, or out-of-print
(but still in copyright) works, which are no longer commercially
available, and for which no commercial exploitation seems likely,
there may be a case for exploring whether and how libraries and
archives could best develop online access to their collections,
taking into account the requirements of the Berne 3-step test.
"Although the questions focus on the publishing
industry, we need to consider all rights holders and also the
public interest. It is important to strike a balance between public
and private use to uphold the benefits of lifelong learning. Higher
Education represents a large sector in industry which is vital
to the UK economy, and the future of creativity and innovation.
Improved access to online works is vital, but the legitimate rights
of IP holders must be protected. Any proposed changes in law must
not impede on the Government's objectives for Higher Education.
"Some of the issues relating to deposit libraries,
delivery and impact raise questions which need to be debated domestically
in the UK. A proper examination of the various roles libraries
and archives play, and consideration of the rights holders and
public interest issues in relation to those roles is needed before
we can offer a balanced view. These issues will be properly considered
as part of UK Government's ongoing work to maintain and develop
the copyright framework.
(8) Should the scope of the exception for publicly
accessible libraries, educational establishments, museums and
archives be clarified with respect to:
(a) Format shifting;
(b) The number of copies that can be made under
the exception;
(c) The scanning of entire collections held by
libraries;
(9) Should the law be clarified with respect to
whether the scanning of works held in libraries for the purpose
of making their content searchable on the Internet goes beyond
the scope of current exceptions to copyright?
"In relation to the scope of the exceptions
for libraries, etc, many of the stakeholders consulted felt that
there was no need for clarification of the detail of how the exceptions
work. As the Green Paper mentions, the UK Government is in the
process of consulting on a recommendation by the Gowers Review
of Intellectual Property[29]
to broaden the UK's current exception in relation to the preservation
of works. Other changes are also being considered, for example
as part of our work on the Gowers Review, to ensure that our exceptions
regime remains relevant to the digital age.
"Additional clarity may be useful in some areas.
However it is not clear whether current uncertainties relate to
the Directive or to the national laws adopted in pursuance of
the Directive. In considering where clarification may be needed
we must be careful not to be overly prescriptive. We must also
be clear about whether clarification at the European level is
necessary or whether what is needed is action at the national
level to address specific instances of uncertainty. In fact it
may be that there is no need for clarification at all —
at either the national or EU levels — and that what is needed
is a more constructive dialogue between rights holders and libraries
etc.
"In relation to the copying and dissemination
by libraries of collections of digital works, the Google Book
Search project and the recent settlement agreed by the parties
in the US (but still awaiting approval from the Courts at the
time of writing), provides an interesting illustration of how
these problems may be addressed in the future. It may be that
business practices in this area evolve in a way that will provide
an answer, through practical demonstration, to the question of
whether any further clarification of the existing law is actually
needed.
(10) Is a further Community statutory instrument
required to deal with the problem of orphan works, which goes
beyond the Commission Recommendation 2006/585/EC of 24 August
2006?
(11) If so, should this be done by amending the
2001 Directive on Copyright in the information society or through
a stand-alone instrument?
(12) How should the cross-border aspects of the
orphan works issue be tackled to ensure EU-wide recognition of
the solutions adopted in different Member States?
"The issue of orphan works is being actively
considered with stakeholders in the UK with a view to finding
a legally satisfactory solution appropriate to the UK's circumstances.
We recognise that different types of works require different approaches.
In many cases, collecting societies deal with specific types of
work and are keen to have a positive role to play in any solutions
which are developed.
"There are nevertheless some gaps in the coverage
of particular types of works, for example old but in-copyright
photographs, which do not sit comfortably within the licensing
schemes envisaged by those keen to see greater exploitation of
orphan works. Moreover the UK Government has concerns about the
legal implications of licensing-type arrangements, and is currently
exploring the legal position regarding the role which collecting
societies, or other intermediaries, might play in the management
of orphan works. Depending on the outcome, it may be that, for
the sake of clarity and certainty, some kind of legal solution
at EU level is ultimately required.
THE EXCEPTION FOR THE BENEFIT OF PEOPLE WITH A
DISABILITY
(13) Should people with a disability enter into
licensing schemes with the publishers in order to increase their
access to works? If so, what types of licensing would be most
suitable? Are there already licensing schemes in place to increase
access to works for the disabled people?
"Although generally, many stakeholders felt
that licensing would not be appropriate in cases where individuals
are seeking access to copies of works that they own, there is
a form of such licensing in the UK. It has been set up between
the Royal National Institute of Blind People (RNIB), which acts
as a trusted intermediary, and UK publishers.
(14) Should there be mandatory provisions that
works are made available to people with a disability in a particular
format?
"We do not believe that stipulating particular
formats in law will be helpful. Keeping legislation up to date
with changes in technology is likely to be extremely difficult,
and locking particular technologies into a legal framework could
hamper efforts to deliver improvements.
(15) Should there be a clarification that the
current exception benefiting people with a disability applies
to disabilities other than visual and hearing disabilities?
(16) If so, which other disabilities should be
included as relevant for online dissemination of knowledge?
"Current EU legislation does not limit the type
of disability to which the exception applies, and it may therefore
apply to those with disabilities beyond those relating to sight
and hearing. For example, in relation to visual impairment, UK
law already goes further than this and includes those who have
a physical disability which means they are unable to hold or manipulate
a book. We are also considering whether we wish to make further
changes to UK laws to ensure that these issues are adequately
addressed.
(17) Should national laws clarify that beneficiaries
of the exception for people with a disability should not be required
to pay remuneration for using a work in order to convert it into
an accessible format?
"The issue of remuneration is complex, and the
answer depends on the circumstances in which an exception is being
applied. Where, for example, an individual in possession of a
legally acquired copy, is using their own resources to transform
a work into an accessible copy for their own use, and copies in
an accessible form are not commercially available, there is a
good argument to say that there should be no additional charge
to the individual concerned.
"In circumstances where trusted third party
intermediaries may provide a comprehensive service to users, the
question of remuneration is not so straight forward. Less than
5% of book titles are produced in an accessible format. This puts
a burden on charities who are responsible for obtaining and distributing
content. Discussions between UK publishers and the RNIB about
access to digital versions of published works have already illustrated
that there may be significant conversion costs.
"How those costs will be borne has yet to be
determined although it is worth noting that provision in UK law
relating to the making of multiple copies by non-profit making
bodies envisages that sums charged must not exceed the cost of
making and supplying the copy.
(18) Should Directive 96/9/EC on the legal protection
of databases have a specific exception in favour of people with
a disability that would apply to both original and sui generis
databases?
"There seems to be a gap here in the provisions
for those with disabilities which prevents them from having the
ability to make accessible copies for databases, in the same way
as they can for other types of work. Subject to appropriate evaluation
of the impact of making such an amendment, it would seem appropriate
to ensure that the same conditions apply to an exception including
databases as apply to the current exception dealing with other
works.
DISSEMINATION OF WORKS FOR TEACHING AND RESEARCH
PURPOSES
(19) Should the scientific and research community
enter into licensing schemes with publishers in order to increase
access to works for teaching or research purposes? Are there examples
of successful licensing schemes enabling online use of works for
teaching or research purposes?
"Concerns have been expressed to us by rights
holders that there is a danger of blurring the distinctions between
exceptions in the areas of research, teaching and education to
such an extent that almost anyone, at any time, can claim to fall
within one or other of the exceptions. They have concerns that
any moves to 'clarify' exceptions in this field may have the effect
of widening them to the extent that it jeopardises the core markets
for those in educational publishing field, and threatens the licensing
activities — including online licensing — that currently
form part of their businesses. We note the comments in the Green
Paper that amendments to clarify the scope of the exception do
not imply that it would be extended.
"Licensing schemes are part of the landscape
in terms of access to educational and scientific material. 'ScienceDirect'
operated by Reed Elsevier, for example, gives online access to
many scientific journals, including its back-catalogue. In a slightly
different context, the Educational Recording Agency provides a
licensing scheme ('ERA plus') which permits recordings of broadcasts
to be accessed by students and teachers online whether they are
on the premises of their educational establishment or at home
or working elsewhere within the UK.
"We believe such licences complement access
provided by means of the educational exceptions, and provide a
mechanism through which both rights holders and educational establishments
can meet their objectives. Of course in such circumstances it
is important that there is an appropriate mechanism for determining
the terms of such licensing schemes where agreement cannot be
reached.
"There are also limitations on the coverage
of licensing schemes, and it must be remembered that there will
always be works that are not covered in a collective scheme, the
use of which may expose an educational establishment to the risk
of being in breach of copyright if it wishes to make full use
of digital technology. As such, care needs to be taken that the
exact scope of any such schemes, and the way in which they interact
with any copyright exceptions is clearly understood.
(20) Should the teaching and research exception
be clarified so as to accommodate modern forms of distance learning?
(21) Should there be a clarification that the
teaching and research exception covers not only material used
in classrooms or educational facilities, but also use of works
at home for study?
"In considering how exceptions in this area
should be framed in the future, we must strike a balance between
the interests of rights holders and the wider public interest
in terms of accessibility, in particular in light of the new opportunities
afforded by technological change. The scope for technological
advancement to bring benefits to education is important and it
is correct that we consider the issue of exceptions in this area
carefully.
"In addition it is important to remember that
teaching and research is also carried out at institutions such
as museums and galleries, e.g. the Natural History Museum employs
many scientists who publish over 500 research papers a year.
"As to the specific clarifications mentioned
above, these are issues which have been the subject of recommendations
in the UK by the Gowers Review of Intellectual Property. The responses
received to the first part of our current consultation on the
various recommendations that were made in that Review generally
recognise the importance of remote access to educational material.
In delivering such exceptions it is important to consider the
potential impact on rights holders interests and in the UK discussions
are ongoing on these issues. The Government will be publishing
its views in the form of a second stage consultation in due course.
(22) Should there be mandatory minimum rules as
to the length of the excerpts from works which can be reproduced
or made available for teaching and research purposes?
"The applicability of an exception in this area
relates to whether the work is needed as opposed to the length
of the excerpt that is being taken. In the past some UK collecting
societies have provided guidance to copyright users to help them
understand how much of a work can typically be used.
"However, it would seem that in general, many
stakeholders do not believe mandatory rules about the lengths
of excerpts are appropriate. Such a move would cut across established
principles relating to the taking of a 'substantial part' of a
work, which provides flexibility about the length of any excerpts,
taking into account its importance — quantitatively and
qualitatively — relative to the work itself.
"We would agree that such rules would not be
appropriate.
(23) Should there be a mandatory minimum requirement
that the exception covers both teaching and research?
"Please see our comments in relation to questions
3 & 4.
USER-CREATED CONTENT
(24) Should there be more precise rules regarding
what acts end users can or cannot do when making use of materials
protected by copyright?
(25) Should an exception for user-created content
be introduced into the Directive?
"Technological development and the internet
have fuelled a growth in the creation and dissemination of user
generated content. Some of this content is exploited commercially
by the creator but much of it is considered to be non-commercial.
Where such content draws upon existing creative works this raises
important questions about the correct application of copyright
law.
"Many stakeholders take the view that the copyright
framework already provides a comprehensive list of 'rules' as
to what can and cannot be done with works which are protected
by copyright. The suggestion for an exception for user-created
content seems to create a distinction between those who use and
those who create works, which in many cases is not justified.
Another significant concern is the extent to which such an exception
might allow others to use works in a way that the existing rights
holders do not approve of and the impact that exceptions in this
area might have on remuneration.
"An alternative to exceptions is to deliver
improved licensing to aid the development and dissemination of
creative content. Such developments aim to make it easier for
'users' to create and post material on the web, which has been
adapted from other sources.
"We are aware that rights holders and creators
are already developing ways of permitting the use of their works
online and future innovation in this area may provide solutions.
In addition to the 'Creative Commons' licence we have seen the
2007 agreement between the MCPS-PRS Alliance and YouTube which
enables You Tube users to include certain musical works in their
video clips under a licence given to You Tube. Rights clearance
for individual works can be a complex business although we note
that some rights holders are seeking to address this through simplified
web based systems (like EMI's system for clearance for sampling).
"In considering any possible exceptions in this
area it is important to consider carefully the potential impact
on existing rights holders, in terms of both commercial and non
commercial UGC.
Conclusion
7.17 We share the Government's cautious welcome
of the Commission Green Paper. We note the Government's view that,
as regards many of the detailed subject areas covered and some
of the suggestions made by the Green Paper, further evaluation
of both the need for Community action and of the likely economic
and legal impact of such action is still required. We share this
view and expect the Government to approach any future legislative
initiatives in this area with these considerations in mind. On
this basis we are content to clear the Green Paper from scrutiny.
27 The most recent version of the Convention is the
Paris text of 1971, as amended in 1979. Around 168 countries are
party to the Berne Convention. Back
28
E.g. the transfer of material to a different format, such as from
a CD to an MP3. Back
29
http://www.hm-treasury.gov.uk/gowers_review.htm Back
| 
