Professor Ian Hargreaves – where are we now?

A Law Firm Specialising in Intellectual Property and Information Technology

A Law Firm Specialising in Intellectual Property and Information Technology

• May 2011 - Prof H publishes his report • The rationale behind the report - making sure UK has

IP framework to support growth and innovation in digital age

• Gowers 2006• The law making machine does move so slowly • Hargreaves not to be deterred by the history • The David Cameron Exam Question • 10 point action plan

4 out of 10

• Limits to Copyright (aka fair use exceptions) • Orphan Works • Copyright Licensing • Infringement and Enforcement of Copyright

It’s a fair cop

• The position before Hargreaves • Exceptions we all knew and sort of understood ……….• Fact and degree • A call to arms to resist regulation of activities which do not

prejudice the central objective of copyright? What does that mean? Activities which undermine commercial value.

• Deliver exceptions to copyright to realise all opportunities within the EU framework

New ways of fair dealing?

• The easy –

Private copyright personal use format shifting

preservation copying for archives and libraries

data mining for non-commercial research • The not so easy. The Copyright and Rights in Performance

(Quotation and Parody) Regulations No 2014

Parody

Quotation

• Use Quotation still has to be fair dealing • No more than required for purpose • Must be accompanied by sufficient acknowledgement (unless

not practical

Parody

• No infringement where work used for parody, caricature of pastiche

• The European Court of Justice October 2014 • Deckmyn v Vandersteen• Willy Vandersteen’s 1961 Suske & Wiske – The Wild

Benefactor

Parody

What was the parody?

• Vlaams Belang a Flemish far right politician • 2000 calendars• Wild Benefactor depicted as the current mayor of Ghent

Deckmyn discussion and decision

• What is a parody – invokes existing work but is noticeably different and humorous

• What is purpose of exception – balancing free speech and public interest with copyright

• Case by case basis in each national court • The nature of the parody in Deckmyn discriminatory –

legitimate interest in not being associated with such message • Not without problems • Why not apply basic copyright principles

Orphan Works

• What are they?• New Licensing Scheme from 29 October 2014• Apply IPO for licence• Requirement of ‘diligent search’• Licence Application Costs and pricing for licence• IPO building register• Compensating the copyright owner if they appear and claim

within 8 years of the grant of licence

Orphan Work Licence Terms

• UK only • Non Exclusive • Maximum Term 7 years (can be renewed subject to conduct

of further diligent search) • Sublicensing prohibited• Moral rights unaffected• Effective as if granted by rights owner

The Register as of 12 March 2015

• 22 License applied for or granted across all categories • Moving Images 0• Musical Notation 1 • Scripts 0• Sound Recordings 14 • Still Images 196• Written Works 13

And……..

• Status recorded• Still Images • 189 licenses granted • 1 waiting for more information • 6 marked application received

Extended Collective Licence

• Legislation still draft – bubbling under • Giving Collecting Society permission to licence certain types

of work i.e. a category• Representing rights holders who are not members • Permission subject to demonstrating ‘significant’

representation for the category• Permission 5 year initial term

Limits and Safeguards

• Members must consent • Non-members must be entitled to opt out (for all or some

works) • Existing Collecting Societies wishing to operate ECL must

review code of practice and ensure clear governance, transparency, clear and concise information to members and non members alike

• Consultations raised a number of issues – threshold for ‘significant’ regulation, distribution funds to rights owners and the 5 year authorisation

and of course

• Limited to the UK

Infringement and Enforcement

• Infringement inevitable• Restraining, educating, suing• Court option not viable until now• The IPEC multi track and small track • Use of kit – effective remedies• Now routine used by photographers using google image

search • Use in audio visual – tracking technology?• Stills and titles in meantime?

A Law Firm Specialising in Intellectual Property and Information Technology

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