By Dr. Daithí Mac Síthigh, lecturer in the UEA Law School. See Daithí’s profile and publications here; he also blogs at Lex Ferenda.
Government reviews of intellectual property are not difficult to find. The last big one in the UK was the Gowers Review of 2006, although fewer than half of its recommendations were taken up. The European Commission has done a few, with copyright being the subject of a number of actions in the much-discussed Digital Agenda – most recently a Communication on a ‘single market for IP rights‘, and Ireland has recently joined the game, with a review of ‘barriers to innovation’ in the Copyright and Related Rights Act announced after the formation of a new Government.
Recently, though, the report of the most recent UK project, the Hargreaves Review (PDF), was published. Launched with a speech by the Prime Minister, who appeared to be proposing the replacement of the ‘fair dealing’ approach of UK law (where a list of exceptions are set out, such as ‘criticism or review’) with the ‘fair use’ defence known in US law (which instead sets out factors to be considered). It appeared as if it was the position of Google and those similarly situated that the PM had in mind, on the grounds that fair use makes it easier to innovate, take risks, develop new business models, and so on. In the end, though, the report didn’t recommend fair use – not least because it appears difficult to bring it in within the current EU approach to harmonisation of copyright law. Instead, it’s proposed that the UK introduce further exceptions that are consistent with EU law – such as parody, which is fairly clearly within the scope of US fair use but can also be a standalone statutory exception (as the Gowers Review also proposed), and private copying.
The Hargreaves Review goes further, in proposing new systems for rights clearance (a complicated and often expensive process) and ‘orphan works’ (where the rightsholder cannot be contacted – often this means something in copyright but ‘out of print’); issues of this nature were at the heart of the Google Books class action in the US and are also a cause of concern at EU level. But the most radical proposal, in my view, is that the UK should take up the cudgels within the EU for a new clause to protect ‘non-consumptive’ uses, distinguishing between the use of new technologies and ‘trading on the underlying creative and expressive purpose’ of a work. Although the report doesn’t provide a detailed draft of such a clause, it’s a very important and promising contribution to the debate on copyright and technology, particularly if the Irish report picks it up, and both nations can frame it as a contribution to the Digital Agenda.
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