The European Commission’s public consultation on the review of EU copyright rules: a response by the CREATe centre

This article presents the response of the Centre for Copyright and New Business Models in the Creative Economy (CREATe) to the consultation on reform of the EU copyright regime. Reviews the format of the consultation, notes the common problems in reporting data in such a format, and reproduces the consultation questions to which CREATe responded, together with a summary of its conclusions on topics including: (1) terms of copyright protection; (2) libraries and archives; (3) persons with disabilities; (4) remuneration of authors; (5) user-generated content; (6) respect for rights; and (7) data mining.

Copyright and Parody:Taking Backward the Gowers Review

In 2006 the Gowers Review of Intellectual Property made a series of recommendations for reforming the intellectual property regime to better serve the interests of both consumers and industry. Among the proposed recommendations was that an exception for parody be introduced within the Copyright Designs and Patents Act 1988. In January 2008 the Intellectual Property Office (the IPO) launched the first part of a two-stage consultation process on exceptions to copyright. As part of that consultation process, the IPO proposed a ‘fair dealing style exception’ for parody, and sought views on whether a new exception should be introduced as well as what form it might take. In December 2009 the IPO launched the second stage of this consultation process. The second consultation document rejected the case for a new parody exception. This article considers the place of parody within the copyright regime and the objections levelled against the introduction of an exception set out within the IPO's second consultation document. It invites the IPO to reconsider its decision not to recommend the introduction of a specific exception for parody within the UK.

Photography, copyright, and the South Kensington experiment

Reviews the development of UK copyright law in the 19th century concerning photographs of works of art in public collections. Discusses the project at South Kensington Museum to sell photographs of works of art to the public at cost price, and the introduction of copyright protection for original photographs under the Fine Arts Copyright Act 1862. Considers the parliamentary debates on whether photography was worthy of copyright protection. Examines whether lessons should be learned now that digital technology offers the opportunity to improve public access to works of art.

Setting the Rules of the Game: Mega-Regionals and the Role of the WTO

Faced with a WTO in a state of paralysis, large developed trading nations have shifted their attentions to other fora to pursue their trade policy objectives. In particular, preferential trade agreements (PTAs) are now being used to promote the regulatory disciplines that were previously rejected by developing countries at the multilateral level. These so-called ‘deep’ or ‘21st century’ PTAs address a variety of issues, from technical norms, procurement, investment protection and intellectual property rights to social and environmental protection. Moreover, recently, developed countries have sought to negotiate PTAs which are large in scale, both in terms of economic size and geographical reach, including the so-called ‘mega-regional’ PTAs, such as the EU-US Transatlantic Trade and Investment Partnership, the EU-Japan PTA, the Transpacific Partnership, and the China-backed Regional Comprehensive Economic Partnership. These mega-regional PTAs are distinctive not just in terms of their sheer size and the breadth and depth of issues addressed, but also because some of their proponents readily admit that one of the central aims pursued by such agreements is to design global rules on new trade issues. In other words, these agreements are being conceived as alternatives to multilateral rule making at the WTO level. The proliferation of 21st century trade deals raises important questions concerning the continued relevance of the WTO as a global rule-making venue, and the impact that the regulatory disciplines promoted in such agreements will have on both developing and developed countries. This paper discusses the emerging features of an international trading system that is increasingly populated by large-scale PTAs and discusses some of the points of tension that arise from such practice. Firstly, it examines instances of horizontal tension resulting from the proliferation of PTAs, particularly the extent to which such PTAs represent a threat or multilateral trade governance. Secondly, it looks at an example of vertical tension by examining the manner in which the imposition of regulatory disciplines through trade agreements can undermine the ability of countries, especially developing countries, to pursue legitimate public interest objectives. Finally, the paper considers a number of steps that could be considered to address some of the adverse effects associated with the fragmentation of the international trading system, including the option of embracing variable geometry within the WTO framework and the need to develop mechanisms that provide flexibility for developing countries in the implementation of regulatory disciplines.

Archives and Copyright: Risk and Reform

This paper considers the place of the archive sector within the copyright regime, and how copyright impacts upon the preservation, access to, and use of archival holdings. It begins with a critical assessment of the current parameters of the UK copyright regime as it applies to the work of archivists, including recommendations for reform that have followed in the wake of the Gowers Review of Intellectual Property (2006-2010), the Hargreaves Review of Intellectual Property and Growth (2010-2011), the Consultation on Copyright (2011-12), as well as the government’s response thereto: Modernising Copyright (2012). It considers the various problems the copyright regime presents for archives undertaking mass digitisation projects as well as recent European and UK initiatives in this domain. It argues that the UK copyright regime, even when read in conjunction with current national and regional recommendations for reform, falls short of delivering a legal framework that would enable archivists to realise the full potential that comprehensive, universal online access to the country’s archival holdings would contribute to local and national democracy and accountability, to education, learning, and culture, and to the sense of identity and place for local people, communities and organisations. Ultimately, a case is made for the differential treatment of archives within the copyright regime – different, that is, from libraries and other related institutions operating within the cultural sector. The paper concludes with a policy recommendation that would greatly enhance the ability of archives to provide online access to their holdings, while at the same time safeguarding the economic interests of the authors and owners of copyright-protected work.

Commentary on An Enquiry into the Nature and Origin of Literary Property (1762)

One of a number of published commentaries contributing to the mid-eighteenth century debate concerning the nature of literary property. The author of An Enquiry sought to repudiate the concept of a natural authorial property right existing at common law. In so doing, he specifically engaged with various aspects of William Warburton's earlier commentary (see: uk_1747), as well as presenting arguments that drew upon the nature of property in general, the differences between the right claimed by proponents of the common law right and other acknowledged incorporeal properties, the similarities between patents and copyright, the history of literary property, the experience of other jurisdictions (drawing upon Venice in particular), and the consequences that would follow from conceding the existence of a perpetual right both for authors in particular and society in general. This commentary, in turn, drew its own response in the guise of A Vindication of the Exclusive Rights of Authors, to their own work (1762).

Commentary on Maugham's Treatise on the Laws of Literary Property (1828)

The first British legal treatise dedicated specifically to the law of copyright written by a strong advocate of the common law rights of the author. Maugham, in addition to providing a commentary upon the law of copyright, also used his work to lobby for both an extension to the copyright term (ideally resulting in a perpetual right) and a reduction in the library deposit requirements (arguing that authors should only be required to deposit one copy of their work for the British Museum). In proselytising the need for a change to the law in both areas he drew frequent comparisons with the law of other jurisdictions (in particular France and Germany). The work became a standard point of reference for many British and American authors who followed.