Want to meddle with IP rights? Use the law, not amended regulations

You want loopholes, don't use loopholes to introduce 'em

Government plans to change the law so that future reforms to the copyright framework can be made through regulations rather than primary legislation could create problems for businesses, an expert has said.

The proposed changes would make it easier for the government to change the law in relation to copyright.

Earlier this week MPs debated the Enterprise and Regulatory Reform Bill in the House of Commons. The Bill includes proposals to change the Copyright, Designs and Patents Act (CDPA) so that the Government could add or remove exceptions to copyright or add or remove exceptions to rights in performances through 'statutory instruments' containing new regulations.

During the debate, Business Secretary Vince Cable offered his "assurances" that future changes to the law in these areas would be subject to "proper parliamentary scrutiny" and that, in practice, the "order-making" powers would be used to "maintain the level of criminal penalties" for infringement.

However, Cable could not offer assurances to John Whittingdale MP that proposed reforms to copyright exceptions currently under consideration would be introduced through primary legislation.

The government has proposed widening copyright exceptions to allow limited private copying, introducing an exemption for parody and pastiche and widening exceptions for library archivists and non-commercial researchers among other reforms. It was advised to do so by university academic Professor Ian Hargreaves, following a review of the UK's intellectual property (IP) framework last year.

Whittingdale, who chairs the Culture, Media and Sport Select Committee in the Commons, said representatives from the creative industries had expressed "real concern" about plans to further liberalise the use of copyrighted material. He asked Cable for assurances that changes would not be introduced through "statutory instrument, but in proper, primary legislation" instead.

Cable said though that he could give no such assurances currently because he did not know the "exact legal position" as things stand.

Acts of Parliament must be read, subjected to further scrutiny and debate and approved by both the House of Commons and the House of Lords before they can come into law. However, new regulations in the form of statutory instruments can often be introduced without the same level of scrutiny or debate.

Technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said though that while regulations offer a means for new laws to be introduced speedily, too much haste over the drafting of new copyright laws could cause problems for businesses.

"Harmonising what acts are exceptions and what acts are not exceptions to copyright protection is one of the key purposes of the EU's Copyright Directive," Scanlon said. "The Directive sets out an exhaustive list of exceptions or limitations to copyright protection. It also encourages the European member states to arrive at a 'coherent' application of these exceptions.

"The government is suggesting in the Enterprise and Regulatory Reform Bill that it be given the power, by an affirmative statutory instrument, to determine what are and what are not limitations to copyright protection," he said.

"It is understandable that the Government would want to respond quickly to technological changes that affect the protection given to a copyright work. A quick response may mean that the Government could provide an answer to a legal uncertainty by means of an affirmative statutory instrument and avoid that uncertainty resulting in confusion and large scale litigation such as that which occurred recently in respect of copies made by web browsers," Scanlon said.

"However, without a full legislative review of a proposed change, there exists a greater danger that the exceptions introduced will not fit within the exclusive list set out in the Directive. The government's proposal may therefore, in the greater European context, increase the problem that it is trying to solve – create more, rather than less, uncertainty for businesses as to what they can and cannot do with a copyright work," he added.

In the Commons debate, Cable confirmed that three aspects of copyright reform that have been proposed would require "primary legislation" in order to be introduced. The three reforms are: the introduction of a scheme to allow extended collective licensing; a new law to allow the use of orphan works; and a "back-stop power" that would force collecting societies to observe a statutory code of conduct if they failed to "introduce or adhere to a suitable voluntary code," he said.

Cable suggested that the ability to introduce copyright reforms through a statutory instrument under the powers included in the Enterprise and Regulatory Reform Bill could be utilised to bring in the reforms.

"The government’s proposals on extended collective licensing and on the use of orphan works are designed to make it simpler for users to use copyright works legitimately, while protecting the interests of rights holders," Cable said. "At the same time, introducing codes of conduct for collecting societies will provide valuable reassurance to the thousands of small businesses and other organisations, including creators, that deal with them."

"The government are finalising their response to the consultation on those three proposals, and if we decide to proceed we will want to move swiftly. The Bill presents an opportunity to do so, and I shall announce a decision on the matter as soon as possible," he said.

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