Rising demands around world for copyright exceptions

Governments around the world are reviewing the relationship between exceptions to copyright laws and innovation and economic growth. In Britain, Canada, the European Union, Ireland and The Netherlands, the central theme in reviews that have occurred or are still under way is the need to inject greater flexibility into the laws.

University critics of existing inflexible laws believe the growing international agreement of the laws’ impact on economic and social costs is “a watershed moment in the history of copyright”.

Speaking at the 2012 Intellectual Property and Innovation Summit, held at the Lisbon Council in Brussels last September, Neelie Kroes, vice-president of the European Commission responsible for the ‘digital agenda’, said:

“I ask myself, are current copyright rules favourable to potentially life-saving scientific research or do they stand in its way? Do they make it easier or harder for people to upload and distribute their own, new creative content? And is that the best way to boost creativity and innovation?

“How can we expect pan-European companies to succeed, if in practice they have to deal with 27 different sets of rules, even if based on a supposedly common European framework? How can we expect them to compete against American platforms that can easily market to hundreds of millions?” Kroes asked.

“How are these restrictions improving our economy? How are they helping cultural diversity? How are they helping artists live from their art? How are they helping stem piracy?

“In short, the world has changed, and is changing still. The change is rapid, it is profound, and it is a huge opportunity for the creative sector. Each day we fail to respond, we are missing out. Consumers miss out on easy, legal access to their favourite products.”

Kroes said the creative sector was missing out on new markets, innovations and new opportunities while the European economy overall was missing out on the opportunities for new growth.

“Even today we see the consequences of that loss. The initiatives we can't seize; the potentially high-flying ideas that get stuck on the runway; the glory and the benefits taken by American companies, not European. And every day that passes we put ourselves in a yet worse position. I'm afraid Europe can't afford that, not at the moment.”

But change was finally coming for copyright at many different levels, she said.

Internationally, the World Intellectual Property Organisation was looking at a range of new copyright exceptions and limitations. Nationally, an increasing number of EU countries were recognising the need for reforms while testing new ideas in this field.

But it was suggested that a common European solution was needed to avoid fragmentation and to seize benefits for a European Digital Single Market.

Professor Ian Hargreaves, author of the UK Review of Intellectual Property and Growth – The Hargreaves Report, noted the fact that new technical uses – such as caching, search and data-text mining – that fell within the scope of copyright under UK law, were essentially a side effect of how copyright had been defined rather than being directly relevant to what copyright was supposed to protect.

“In copyright, the interests of the UK’s creative industries are of great national importance. Digital creative industries exports rank third, behind only advanced engineering and financial and professional services.

“In order to grow these creative businesses further globally, they need efficient, open and effective digital markets at home, where rights can be speedily licensed and effectively protected,” his report states.

“The UK has chosen not to exercise all of its rights under European Union (EU) law to permit individuals to shift the format of a piece of music or video for personal use and to make use of copyright material in parody. Nor does the UK allow its great libraries to archive all digital copyright material, with the result that much of it is rotting away.

“Taking advantage of these EU sanctioned exceptions will bring important cultural as well as economic benefits to the UK. Together, they will help to make copyright law better understood and more acceptable to the public. In addition, there should be a change in rules to enable scientific and other researchers to use modern text and data mining techniques, which copyright prohibits.”

But, as the American professor of law and author of Digital Copyright, Jessica Litman, observed two years ago in the Iowa Law Review: “As technology has enabled individuals to enjoy works in new ways, however, copyright owners have asked for greatly enhanced control over their works.

“Copyright owners have insisted…that, because copyrights are their property, nobody should be allowed to make a valuable use of a copyrighted work without paying the copyright owner.”

In its submission to the Australian Law Reform Commission review of copyright in the digital environment, Universities Australia says these statements highlight the importance of keeping the purpose of copyright clearly in sight when framing appropriate exceptions and limitations for an age where copying is ubiquitous.

Indeed, the statements could have been made about Australia, and underscore the importance of developing policy settings and copyright exceptions that are appropriate in an age of rapid technological change.

“Australia‘s inflexible copyright regime is standing in the way of innovative technologies such as cloud computing; it is blocking creative and transformative uses of works in universities such as search and text mining; it is locking up orphan works; it is preventing Australian academics from engaging fully in research and innovation activities that their colleagues in the US take for granted; and it is imposing unnecessary inefficiencies and unreasonable costs on access to knowledge in Australian universities.”