Parody, quotation & format shifting exceptions coming to UK

This blogger is not known for his unstinting praise of government policy in the intellectual property arena.

However, little noticed by the wider world and much to the collective chagrin of the big music labels, changes to copyright exceptions were approved by Parliament this week. After a hiccup earlier in the summer when they were postponed by the Joint Committee on Statutory Instruments (JCSI), the

Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014

and the

Copyright and Rights in Performances (Quotation and Parody) Regulations 2014

were approved by the House of Lords shortly before 6.30pm on Tuesday, 29 July. The regulations are now due to be implemented on 1 October 2014.

Debate commenced 4.42pm (at column 1553) and there was a further last minute attempt, by members of the Lords sympathetic to traditional big music labels' interests, to undermine the format shifting exception. It nevertheless passed unscathed.

It means that from 1 October, for the first time in the UK, we will be lawfully permitted to copy our CDs to our digital music players and from old to new music players, for private use. Though most people don't realise this common act is not currently allowed under UK copyright law. Likewise it comes as a surprise when people find out that parody is also not a currently recognised exception to copyright in the UK.

These regulations are important additions to the IP policy framework that bring the UK closer into line with international norms, although the parody exception is quite narrowly construed to allow only 'fair dealing' use of the original work.

So it is well done to -

Lord Younger of Leckie, the previous intellectual property minister, who saw these regulations through at government level for most of the past 18 months

and

Baroness Neville-Rolfe, the very new IP minister, who steered the regulations through their final hurdle.

Most especially, however, significant praise is due to Matthew Williams and the copyright team at the Department for Business, Innovation and Skills and Tony Clayton and his team of economists at the UK Intellectual Property Office, all of whom have been working tirelessly for years on improving the UK's IP policy.

There are a lot of very smart, hard working officials in public service attempting to educate the government on the need for evidence based policy making in the intellectual property and wider technology, security, economics, social, environmental and human rights policy arenas.  They deserve our respect and thanks and so, for once, I'd like to make an effort say thank you, especially to everyone involved in bringing these regulations to fruition.

Thanks also for listening and taking account of the work of my old friend, Mark Rogers. Mark would have been pleased but he'd also have been the first to remind us, gently but firmly, that we still have a lot of work to do. The road to sustainable enlightenment in policy involves unfailing care, hard graft and eternal vigilance.

Note to Chairman of JCSI on copyright exceptions

Given the recent decision of the Joint Committee on Statutory Instruments (JCSI) to spend more time considering the implementation of private copying and parody copyright exceptions statutory instruments, I've written to the Chairman of the Committee, George Mudie. Copy of my note below.

Dear Mr Mudie,

As Chairman of the Joint Committee on Statutory Instruments (JCSI), I’m writing to you in relation to your committee’s recent consideration of the proposed five copyright exceptions statutory instruments (SIs). I note the Committee has concluded its consideration of three of the five but has some questions about the private copying and parody exceptions.

https://www.gov.uk/government/news/progress-of-the-exceptions-to-copyright-regulations

In light of the decision of JCSI to hold up the implementation of copyright exceptions SIs for private copying and parody, could I ask that you draw the Committee's attention again to the Consumer Focus report, 'The economic impact of consumer copyright exceptions'. It was first published in 2010, republished last year and is available at:

http://www.consumerfocus.org.uk/publications/the-economic-impact-of-consumer-copyright-exceptions-a-literature-review

The report itself may be accessed directly at:

http://www.consumerfocus.org.uk/files/2010/11/The-economic-impact-of-consumer-copyright-exceptions-Rogers-Tomalin-Corrigan.pdf.

Full disclosure - I am an academic at the Open University and was involved in producing the report, along with colleagues from Oxford University, Mark Rogers and Josh Tomalin. Mark was terminally ill at the time and sadly died in July 2011.

An Oxford University economist of international renown, Mark was a passionate advocate for evidence based policy making in the intellectual property arena. Down to earth family man, friend, academic and practical economist, optimist, writer, basketball coach and player, runner, cyclist, all round handyman and an infinite well of sound personal and professional advice, Mark was one of those impossibly nice, exceptionally talented and generous individuals you’d like your children to emulate. The dignity and positive outlook with which he faced his illness were genuinely awe inspiring. The simple fact that someone of Mark’s ilk devoted considerable energy, over many years, to the importance of evidence based intellectual property policy making speaks for itself. What he had to say about copyright exceptions should be of particular interest to the JCSI.

In relation to JCSI’s recent deliberations, our Consumer Focus report focused solely on copyright exceptions as they relate to non-commercial, consumer activities. It dealt specifically with private copy format shifting and parody. We concluded -

Investigating potential economic damage to rights-holders requires an analysis of how consumer copyright exception could affect the demand for the original creative work. The processes via which consumer copyright exceptions influence the demand curve for original creative work can be complicated. This said, a standard analysis of the demand for creative works must assume that consumers incorporate the benefit of copyright exceptions into their demand. A consumer’s decision to purchase is based on the benefits of the product, including – in the case of creative work – the value of any copyright exception. In this sense, it can be argued that a creator automatically extracts value from copyright exceptions, since these directly influence the demand for the original creative work.

The economic evidence that format-shifting, parody and user-generated content cause any kind of economic damage to rights-holders simply does not exist. Arguments that support tighter copyright law, or support Private Copying Remuneration (PCR) systems, tend to confuse economic damage with consumer value. Any future analysis on this issue needs to investigate the conditions under which the proposed consumer copyright exceptions would have any impact on demand for creative work.

I hope that you and the JCSI find the report helpful. If you have any questions or I can provide any further input to the Committee’s deliberations on copyright exceptions do let me know.

Yours sincerely,

Ray Corrigan

Ray Corrigan, Senior Lecturer in Maths, Computing and Technology, Open University;

Copyright exceptions for private copying and parody delayed

I've written to the intellectual property minister, Lord Younger of Leckie, regarding the decision, this week, to "delay" the implementation of copyright exceptions statutory instruments (SIs) for private copying and parody. These were scheduled for implementation on 1 June 2014.

I specifically draw his attention to the Consumer Focus report, 'The economic impact of consumer copyright exceptions'.

Dear Lord Younger of Leckie,

In light of the decision this week, of Joint Committee on Statutory Instruments (JCSI), to hold up the implementation of copyright exceptions statutory instruments for private copying and parody, could I ask that you draw the committee's attention to the Consumer Focus report, 'The economic impact of consumer copyright exceptions'. It was first published in 2010, republished last year and is available at:

http://www.consumerfocus.org.uk/publications/the-economic-impact-of-consumer-copyright-exceptions-a-literature-review

The report itself may be accessed directly at:

http://www.consumerfocus.org.uk/files/2010/11/The-economic-impact-of-consumer-copyright-exceptions-Rogers-Tomalin-Corrigan.pdf.

Full disclosure - I am an academic at the Open University and was involved in producing the report, along with colleagues from Oxford University, Mark Rogers and Josh Tomalin. Mark was terminally ill at the time and sadly died in July 2011. But he felt the absence of economic evidence informing copyright policy was hugely important, sufficiently so to merit a significant chunk of his considerable professional energy.

The report focused solely on copyright exceptions as they relate to non-commercial, consumer activities. It dealt specifically with private copy format shifting and parody. We concluded -

Investigating potential economic damage to rights-holders requires an analysis of how consumer copyright exception could affect the demand for the original creative work. The processes via which consumer copyright exceptions influence the demand curve for original creative work can be complicated. This said, a standard analysis of the demand for creative works must assume that consumers incorporate the benefit of copyright exceptions into their demand. A consumer’s decision to purchase is based on the benefits of the product, including – in the case of creative work – the value of any copyright exception. In this sense, it can be argued that a creator automatically extracts value from copyright exceptions, since these directly influence the demand for the original creative work.

The economic evidence that format-shifting, parody and user-generated content cause any kind of economic damage to rights-holders simply does not exist. Arguments that support tighter copyright law, or support Private Copying Remuneration (PCR) systems, tend to confuse economic damage with consumer value. Any future analysis on this issue needs to investigate the conditions under which the proposed consumer copyright exceptions would have any impact on demand for creative work.

I hope that you and the JCSI find the report informs your decision making in this area.

Yours sincerely,

Ray Corrigan