The Road to Reform of Copyright Law - Concerns of Creators
The Road to Reform of Copyright Law - Concerns of Creators
Published: 04.02.13 at 14:36
The idea behind a legal system which protects intellectual property rights is to foster creativity whilst at the same time promoting economic growth. Copyright, in particular, is a strain of IP law that protects all original works by an author set down in material form. Although designed to offer an incentive to artists, musicians etc. to create original content there comes a point where stringency of copyright laws can actually stifle creativity. The key is to find the right balance between providing incentives for content creation through guaranteeing the IP rights of creators, without blocking off all creative avenues for future authors and performers.
In recognition of the fact that modern electronic communications are making copyright laws increasingly hard to enforce the Hargreaves Report has recommended pragmatic measures relaxing copyright rules through the creation of certain exemptions. However, there have been concerns voiced by a large number of stakeholders who claim they will become more vulnerable as a result of the exceptions. The dissemination of information in the age of the internet, creative content included, is becoming increasingly easy and whilst it can act as an effective means of authors and performers gaining exposure it can also serve to undermine their right to recognition and remuneration for their work.
In light of the government's 2012 report on "Modernising Copyright" and the Enterprise and Regulatory Reform Bill currently being debated in the House of Lords, significant changes to the law of copyright appear imminent. A summary of potential changes and their corresponding impact on content creators is outlined below:
Private Copying: The proposals would allow making a copy of a legally owned work for play-back on another device. This would finally bring copyright law into the 21st century, in line with technological developments such as iPods. There are implications for content creators and providers who could stand to loose out as a result of this legitimised copying. The concern is that by legitimising the already entrenched practice of copying could indirectly "open the floodgates" to wider copyright infringement, against the owner's best interests. However, given that this copying would only be permissible for personal use, the impact to the content creator should be limited by the fact that each consumer would still have to pay for initial access to the work.
Orphan Works: The proposed provisions in relation to orphan works would allow people to access, preserve and use copyrighted work where no owner of this work can be found. While this carries the benefit of allowing libraries and educational institutions to digitalize and make use of work that might otherwise be forgotten, it comes with certain risks. There is a risk that insufficient effort may be made to trace the creator with a view to commercial exploitation. Again, the implications of this would lead to an otherwise unrealised loss of profits for content creators. Although not much of a concern in relation to older works the largest impact is likely to be felt by the more contemporary artists and writers. This could be avoided through the establishment of a copyright database, documenting the owners and licencees of copyrighted work.
Extended Collective Licensing: The bill proposes to allow companies to license copyrighted works on behalf of content creators without first obtaining consent. This framework includes an opt-out system. So far the government has not explained exactly how this will work. Points to clarify include:
1. Which companies will be set up for this purpose?
2. How to opt out;
3. What amount of remuneration will be received, if any, for use of one's work once they locate it in a company's database; and
4. How moral issues and rights will be dealt with such as the nature of the use of a content provider's work.
A failure to opt out could result in content creators unwittingly consenting to a relinquishment of their exclusive rights with regards to their work. There is further scope here for content creators to lose out on profits to be made from licensing work and, ultimately, lose control over how the work is portrayed. The concern is that this provision will divert money away from the content creator and place an unfair burden on the creator to identify the relevant company and opt out.
There is the risk that 'orphan works' may be favoured by consumers as they may never have to pay for their use if the creator does not appear and claim remuneration through the scheme. It also prejudices international content creators who may be unaware of such a system and unknowingly lose valuable rights within the UK. In a briefing note to the House of Lords the Newspaper Society and the Newspaper Publisher's Association cited IP's ability to "drive creativity and consumer choice" and a watering down of IP rights could hamper innovation.
Parody Caricature and Pastiche: There are concerns associated with allowing copying for the purposes of parody as highlighted by the response to the Hargreaves review from ITN, ITV and the Channel 4 news producer suggesting that it could reduce revenue streams gained from licensing agreements. Stripping content creators of this protection could, in actual fact, have the adverse effect of reducing creativity and innovation. However, as we reported previously here, it may be good news for other creators, who use caricature and pastiche in their line of work.
Education, Research and Private Study: The widening of the exception allowing for copying for the purposes of education reduces bureaucracy and yet does not impact the economic benefit to the content provider. Again, a potential concern is that these providers will lose a greater degree of control and with it potential profits over the reproduction of their work.
People with Disabilities: A new copyright exception is created whereby accessible versions of work for the visually impaired deaf, physically or mentally disabled can be created where necessary.
The proposed reforms raise concerns for the content creators mainly regarding the potential loss of profits due to unauthorised use of their work. There have been suggestions that secondary legislation is an inappropriate method of amendment to copyright law as it by-passes the opportunity for the reforms to undergo parliamentary scrutiny. The question is whether the government will manage to successfully safeguard the rights of creators while simultaneously achieving its goal of encouraging competition and growth and bringing copyright law in line with the latest technological innovations.
This article was written by Leontine Christophersen and Eleni Stavraki, at the College of Law Moorgate Centre, and edited by George Blacksell, Own-it Programme Assistant.
Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.