Shock, awe: British government agrees that copyright has gone too far

In its official response to an independent copyright study, the British …

Timothy B. Lee – Aug 3, 2011 4:11 PM | 151

The British government today pledged (PDF) to enact significant changes to copyright law, including orphan works reforms and the introduction of new copyright exceptions. And the tone of the comments was surprising: the government agrees that "copyright currently over-regulates to the detriment of the UK." CD (and perhaps DVD) ripping for personal use should become legal at last—and the government is even keen to see that the consumer rights granted by law can't simply be taken away by contract (such as a "EULA" sticker on a CD demanding that a disk not be ripped).

Responding to an independent study done earlier this year, the government has also endorsed the creation of a digital copyright exchange to facilitate licensing. Within limits, the government endorses the view that "the widest possible exceptions to copyright within the existing EU framework are likely to be beneficial to the UK."

The government's report is also significant for what it pledges not to do. The government says it will not bring forward the "site blocking" provisions of last year's Digital Economy Act. This is evidently not referring to the power of copyright holders to compel individual ISPs to block infringing sites after a lawsuit, but to a more comprehensive system whereby the government maintains a list of sites that all ISPs in the country would be required to block.

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Probably the most important announcement is the expansion of copyright exceptions. Unlike the US, the UK does not have a broad, judge-made "fair use" doctrine that allows transformative uses of copyrighted works. Today's report doesn't use the phrase "fair use," but it endorses legalizing many of the same ideas. The government proposes to create "a limited private copying exception," to "widen the exception for non-commercial research," to "widen the exception for library archiving," and "to introduce an exception for parody."

Orphan works are out-of-print works that cannot be used by anyone because their copyright holders cannot be found. Legislation to address the problem has languished in the US Congress for years. The British government has now pledged to enact orphan works reform that would allow "both commercial and cultural uses of orphan works," once a prospective user has conducted a diligent search for the copyright holder and paid standard licensing fees.

The report devotes significant attention to the creation of a Digital Copyright Exchange, a centralized clearinghouse to improve the efficiency of copyright licensing efforts. The project is still in the planning phase and participation in the scheme would be voluntary. But the government vows to study ways to encourage and facilitate the creation of an exchange. One way it will do that is by ensuring that the government's own "Crown copyright" works will be available for licensing.

Patents receive only a brief mention in the report. The government pledges to "resist extensions of patents into sectors which are currently excluded unless there is clear evidence of a benefit to innovation and growth." It also promises to investigate the problems created by patent thickets, although it doesn't endorse any specific proposal for addressing the problem.

The report is significant not only for the specific policies it endorses, but also for the shift in tone it represents. For decades, policymakers around the world have steadily expanded the breadth of copyright and patent protections and ratcheted up enforcement. So the fact that the UK's official copyright agenda now consists mostly of creating new copyright exceptions and abandoning previously announced enforcement efforts suggests the pendulum may finally be swinging in the other direction. The individual reforms are important, but it is most significant as a barometer of the shifting political climate.