Not Excepting Our Laws

Peter Brantley -- December 24th, 2012

Constitution in the National ArchivesThe United Kingdom’s Intellectual Property Office (IPO) just released an extremely important announcement revising the UK’s copyright laws, bringing them more up to date with a digital age. “Modernising Copyright: A modern, robust and flexible framework” (pdf) formalizes permissions for a wide range of acts that in the U.S. are likely to be judged as Fair Use, but which have not obtained the benefit of explicit endorsement.

One of the IPO’s singular provisions in “Modernising Copyright” – that contracts cannot overwrite existing copyright exceptions and limitations – will have widespread repercussions. IFLA is helping drive similar discussions in international deliberations at WIPO focusing on libraries and archives. The U.S. Congress should give serious consideration to adopting a homologous principle. The UK, whose copyright framework is broadly similar to the U.S., now stands at the forefront of European thinking on copyright.

The core of the report’s recommendations will seem commonsense to anyone following recent debates in copyright and intellectual property. For example, Modernising Copyright permits consumers to format shift content for private purposes, such as copying CDs to computers and portable music players, and although DRM’s technical protection must be observed, there is a means to apply for waiver. Other changes permit greater uses of copyrighted content for education, including copying of audiovisual content; the ability of libraries to preserve materials through digitization whenever they cannot be replaced; a recognition that text and datamining are research endeavors that do not interfere with copyright; and the right for people with disabilities to obtain access to an appropriate copy when one does not exist on the market.

In and of themselves, this suite of enhancements to copyright would be groundbreaking and long welcomed. But the report goes further. The UK government recognizes that the shift from traditional analog to digital culture often means a transition away from content ownership to content licensing. These licensing terms and conditions increasingly transcend copyright exceptions and limitations, curtailing Fair Use (Fair Dealing in the UK), permitted library uses, and cultural preservation exceptions. As the UK’s 2011 Hargreaves copyright study report noted: “[l]icences should never substitute for legislation on core maters such as exceptions and limitations. The licensing framework now underpins much of the content online and contracts rather than copyright dictate how content can be used. Legislation must be amended to ensure that contracts are prevented from overriding copyright exceptions.”

Both Hargreaves and the new IPO policy statement recognize the deleterious impact licensing can have for libraries, which are often captive to contracts with publishers restricting the use of digital materials. As a consequence, because libraries must be able to establish and explain working principles for their users, the most restrictive licensing terms across multiple contracts often end up dictating acceptable patron practices. As the IPO notes, “Libraries reported that contracts with publishers for digital delivery of works restrict permitted acts. In practice, given the time and effort involved in checking the terms of individual contracts, they are forced to follow the most restrictive terms of which they are aware; this represents a significant curtailing of the permitted uses set out in the Copyright Act.”

The UK IPO carefully weighed the positive and negative impacts of licenses on copyright. “At their best they may create clarity and enable far more than the limited permitted acts allowed under European law. At their worst they can erode socially and economically important uses of copyright works. The Government wishes to mitigate these negative effects while allowing the former.” Then Modernising Copyright pulls no punches.

But the general principle that contracts should not be allowed to erode the benefits of permitted acts is accepted. Therefore, to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole. [Emphasis in the original].

This decision will impact nearly every contract that libraries accept with publishers in the UK, and it mirrors and reinforces similar legislation in Ireland, another EU member state. Beyond that, it will also have significant implications for the rights of consumers of digital media who often fail to realize that they are licensing content instead of acquiring ownership of it whenever they click on “Buy” buttons from companies like Amazon and Apple. The prohibition on overriding exceptions and limitations does not prohibit licensing as a useful means of clarifying rights and exclusions; rather it helps to delineate the territory that licensing can cover, permitting it to work hand in hand with copyright law rather than in armed conflict with it. Through strong but clear language, the IPO has not only protected consumers and cultural organizations such as libraries and museums, it has arguably made licensing more palatable by giving guidance to its purpose.

This guidance would be equally welcomed in the United States, and a request should be made of the U.S. Copyright Office for a similar proposal to be introduced into legislative consideration.

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