In this final installment of the copyright roundup I have been doing this week, I want to note some remarkable developments in the copyright law of the United Kingdom, where a hugely significant revision of the statute received final approval this month and will be given royal assent, the last stage of becoming law, in June.
Readers may recall that the UK undertook a study of how to reform copyright law in ways that would encourage more innovation and economic competitiveness. The resulting report, called the Hargreaves Report, made a number of recommendations, many of which were focused on creating limitations and exceptions to the exclusive rights in copyright so that the law would work more like it does in the U.S., including the flexibility provided by fair use. The final results of this legislative process do not include an American-like fair use provision, but they do result in a significant expansion of the fair dealing provisions in U.K. law to better accomplish some of the same things fair use has allowed in the U.S.
Fair dealing is found in a couple of provisions of the British law and allows certain specified activities if those activities are done in a “fair” manner, with specified criteria for fairness. Until now the categories have been narrow and few, but Parliament has just expanded them dramatically. A description of this expansion from the Charter Institute of Library and Information Professionals can be found on the CILIP site. A number of activities that are probably permitted by fair use in the U.S. are now also encompassed by fair dealing in Britain, including private copying, copying by libraries in order to provide those copies to individual users, and some significant expansion of the ability to make copies for the purpose of education.
On this last point, I wonder if the two British university presses that are suing a U.S. university over educational copying have noticed that the tide is against them even at home.
There is an explanatory memo about these changes written by the U.K. Intellectual Property Office available here. It is interesting to see how certain goals that have been accomplished by the courts in the U.S. and, importantly, in Canada are now intentionally being supported in this British legislation. As I say, we are seeing a fairly strong international tide pushing towards expanded user rights in the digital environment, lest legacy industries use copyright to suppress economic development in their anxiety to prevent competition.
Several points about this legislative reform seem especially important to me.
First is the emphasis in several of the new provisions on supporting both research with and preservation of sound recordings and film. This is one of several places where the U.K. may reasonable be said to have just leapfrogged over the United States, since the provisions about non-profit use and preservation of music and film remain a mess in our law.
Second, the British are now adopting an exception for text and data mining into their law. This is huge, and reinforces the idea I have expressed before that libraries should be reluctant about agreeing to licensing terms around TDM; the rights are likely already held by users in many cases, so those provisions really would have the effect, despite being promoted as assisting research, of putting constraints (and sometimes added costs) on what scholars can already do. This is probably true in the U.S., where fair use likely gets us further than vendor licenses would, and it has now been made explicit in the U.K.
Another major improvement in the U.K. over U.S. copyright is the fact, explained in the CILIP post, that
[M]any of these core “permitted acts” in copyright law given to us by parliament all not be able to be overridden by contracts that have been signed. This is of vital importance, as without this provision, existing and new exceptions in law could subsequently simply be overridden by a contract. Also many contracts are based in the laws of other countries (often the US). This important provision means that libraries and their users no longer need to worry about what the contract allows or disallows but just apply UK copyright exceptions to the electronic publications they have purchased.
This type of approach is desperately needed in the U.S. If we truly believe that the activities that are supported by core exceptions to the rights under copyright, like education, library services and fair use, are beneficial to society and part of the basic public purpose of copyright, they should remain in place regardless of provisions inserted into private law contracts. Now that the British have made this acknowledgement, it is time for the U.S. to catch up.
Competitiveness is often an important part of the discussion over copyright law. Rights holders argue that terms should be lengthened and enforcement improved in order to enhance competition with other nations. The U.K. began its copyright reform process in order to improve its ability to compete for high-tech business. And this new revision of the British law puts the U.S. back in a situation where we must continue to strengthen not the rights of legacy industries but the rights of users — which is where innovation will come from — because other parts of the world are moving past us in this area. How to we do this, in the two key areas I have identified? In the area of the right to mine text and data for non-profit research purposes, this is something our courts can do, through interpretation of the fair use provision. We can hope that such an opinion might appear in the near future, although I am not aware of what case might prompt it. But contract preemption is something that Congress will have to address. If the U.S. Congress is serious about copyright reform, and really wants to help it to continue to be a tool of economic progress in the U.S., they should put the issue of making user rights exceptions impervious to contract provisions that attempt to limit or eliminate them at the top of the legislative agenda.