Hargreaves Review: Fair Use and Fair Dealing
In March we put in a submission to the Independent Review of Intellectual Property and Growth, led by Ian Hargreaves. Hargreaves’ report was published on 18 May. This is the first in a series of posts which will summarise and examine Hargreaves’ recommendations on copyright. It will cover his proposals on fair dealing.
All non-specific references are to the main report document, Digital Opportunity. A Review of Intellectual Property and Growth.
References preceded by Econ. Impact are to Supporting Document EE. Economic Impact of Recommendations.
1. Fair use
Hargreaves rejects the proposal that fair use principles on the US model should be incorporated into UK copyright law. [Executive Summary p. 5]
(i) The report states that most submissions were strongly opposed to this. [5.13. See also Supporting Document Q: Fair use and the Independent Review.]
(ii) Government lawyers warned that there would be major problems over attempting to introduce fair use on the US model within the framework of EU law. [5.19]
2. Extension of fair dealing provisions
Hargreaves calls for the fair dealing provisions in UK copyright law to be extended to cover the following:
a) ‘format shifting’ already owned material for personal use: eg. copying music owned on CD onto hard disks [Executive Summary p. 4, and 5.10, 5.27–5.31; Econ. Impact pp. 24–27]
b) making parodies and pastiches of copyright material [5.32, 5.35–5.37; Econ. Impact pp. 28–29]
c) the copying by libraries and archives of sound, film and broadcast material for conservation purposes [Executive Summary p. 4, and 5.34; Econ. Impact pp. 31–33]
d) extending the existing provisions relating to copying for non-commercial research ‘to cover the full range of media’: this particularly affects sound recordings and film, which are not specified in the current legislation [5.32, 5.33]
e) the mass-digitising of material for the purposes of carrying out non-commercial research involving text analysis and data-mining [Executive Summary p. 8 and 5.21, 5.26, 5.32; Econ. Impact p.30; Supporting Document T. Text Mining and Data Analytics in Call for Evidence Responses]
Although these activities are not currently permitted under UK law, the EU permits member states to legislate to allow them: the law could therefore be changed without any need to lobby for changes in EU law. [Executive Summary pp. 4, 8, and 5.6]
In 2006 the Gowers Review of Intellectual Property recommended changing the law to permit format-shifting and parody and extend the scope of permitted copying for conservation and non-commercial research.
(i) Format-shifting: the EU copyright directive permits it ‘on condition that the rightholders receive fair compensation’. Hargreaves argues that consumers are doing this sort of thing already, and that rights holders have adjusted their prices to take account of this, so no additional compensation will be needed. [5.30; Econ. Impact p. 25]
Much of the time Hargreaves’ remarks on format-shifting refer specifically to audio material, with a couple of references to video, but it is clear that he is envisaging that the principle will be applied to every sort of creative work: ‘format shifting could apply across all content’. [Econ. Impact p. 26] He calls for a change in the law ‘to allow individuals to make copies for their own and immediate family’s use on different media’ [5.31]. This would legalise the scanning for personal use of printed books owned by the user.
(ii) Making archive copies for conservation: this, as he notes, ‘should be uncontroversial’. [5.34] In the same paragraph, however, he suggests that it ‘could open the way to new services based on digital use of those archives’, remarking ‘We may well find that this public digital archive turns out to have considerable economic as well as social and cultural value’. In other words, he envisages that digital copies made for conservation reasons may subsequently be put to other uses by the libraries. This is potentially highly controversial, though he does not acknowledge this, or give examples, anywhere in the main report.
In Supporting Document EE. Economic Impact of Recommendations he states ‘Libraries and firms holding archives would be the main beneficiary [sic]‘ of changing the rules. He suggests that digitising collections would ‘[improve] accessibility … for example by being able to search electronic databases for specific information’. [Econ. Impact p. 31] This, of course, would only be a legal use of copies made for archiving purposes if the fair dealing rules were also changed to permit indexing and data-mining.
More importantly, he says: ‘There would be a risk around whether libraries are allowed to share newly archived content digitally within or beyond the library premises. Such sharing may be good for library users but negatively impact publishers of content as the library offering may be a substitute for purchases.’ [Econ. Impact p. 32] Quite so. This will be considered again later, under Extended Collective Licensing.
(iii) Non-commercial research: the Copyright, Designs and Patents Act 1988 permits ‘Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose’ [1988 Act, 29.1]. Sound recordings and films are currently not covered.
Also not covered under the fair dealing provisions as they stand at present is the mass-digitising of large numbers of copyright texts in order to submit the corpus to machine analysis. Hargreaves is very exercised by this particular issue. [5.21, 5.26]
3. Fair dealing and restrictive clauses in licensing contracts
Hargreaves notes that increasingly rights holders have been including clauses in licensing contracts that curtail the rights established under the fair dealing provisions. By means of restrictive clauses they effectively rewrite copyright law to assign themselves rights that the law does not grant them. He calls for legislation ‘to make it clear no exception to copyright can be overridden by contract.’ [5.3, 5.39–5.40]
4. Copying for commercial data mining, etc
Hargreaves calls for the UK Government to ‘press at EU level’ for a change in the law that would allow commercial uses to be made of copyright works when these uses are ‘enabled by technology’ and ‘do not directly trade on the underlying creative and expressive purpose of the work’. As examples of this he mentions text analytics, data mining, and, in one place, ‘search engine indexing’ [Executive Summary pp. 5, 8 and 5.20–5.24; Econ. Impact pp. 35–36]
This would, of course, make Google Book Search legal in the EU, though Hargreaves does not mention this. Google is currently facing a second law suit in France arising out of its copying of copyright works for Google Book Search. The first law suit is still going through the French courts.
Coming next: Hargreaves’ proposals for a Digital Copyright Exchange.