Written by Kafka
How adding your voice to the Hargreaves Review could help the UK progress to clearer, less Kafkaesque copyright law
He sang. In his song, he told them all exactly what he planned to do under the boardwalk, and it mostly involved making love. This is a quote from Neil Gaiman’s book Anansi Boys. The first thing you need to know about it is that me putting it up there, without intending to review it or criticise it, is illegal. The second thing you need to know is that it references - but does not quote - a popular song. The reason it doesn’t directly quote the song is that the music publisher demanded $800 for seven words. This is actually the only case I can think of where copyright shenanigans have enriched a creative work. The way Neil Gaiman circumvented the need for permission to quote the song makes for much better writing. (Phew, now that I’ve said something that might be construed as a review, we’re safely back on the right side of the law!)
Here’s another common practice of dubious legality: a teacher handing out photocopies of a poem for their students to interpret and evaluate. While there is an “educational use” exception in current UK copyright law, it might as well have been written by Kafka. Copyrighted work can be copied for the purposes of teaching or examination, as long as you don’t use a “reprographic process” to do so. Yep, photocopiers and printers are right out, and so is PowerPoint; “chalk and talk” is the way forward. If you do want to use a “reprographic process”, you may only copy no more than 1% of a work per quarter. Ever tried copying 1% of a Roger McGough poem? As if this wasn’t bad enough, these exceptions only apply where no licensing schemes cover the copyrighted work in question. Such licensing schemes, like the Copyright Licensing Agency, negate existing legal exceptions and force schools, colleges and universities to pay license fees for any copyrighted material they wish to use for educational purposes. Call me a heretic but it may be this, as opposed to actual quality, why we teach kids so much Keats, Byron and Shakespeare rather than Roger McGough.
If you’re reading ORGZine, chances are you already know that copyright law is a mess. There are a number of ways in which it is a mess, but one of them has to do with the interplay between UK and EU legislation. Unlike in the US, where exceptions to copyright are based on the “Fair Use” principle and a body of case law, the European Union has specified around twenty categories of exceptions, which member states may choose to implement pretty much as they see fit. In many cases, this approach is not exactly flexible and adaptable to new technologies. To make things worse, UK law, which predates the EU directive, does not make full use of the available exceptions. So where under EU rules, an exception could cover quoting from a copyrighted work for any reason, UK law only allows it for the purposes of review, criticism or news reporting. Where the directive would allow much wider exceptions for educational use, the UK is stuck with “chalk and talk” and licensing schemes.
The good news is that the Hargreaves Review and ongoing consultation on copyright have picked up on this mess, and have put some really sensible proposals on the table to address some of the issues. There is, for instance, a proposal to extend the exception for the use of quotations and extracts beyond the current three valid reasons (review, criticism, news reporting). The government estimates a net present value for this of £3.3 million - fairly small compared to the value of extending some of the other exceptions, but that only accounts for what they could actually monetise. There are other benefits which are less easy to measure. This one seems, more or less, like a done deal. Still, if you’re a writer or blogger or find yourself quoting copyrighted works in other ways, it may be worth adding your voice to the consultation.
Another item in the consultation is the extension of the exception for educational use. Here, the government is considering a number of options and hasn’t declared a preferred approach yet as they are finding it hard to quantify either the general positive impact or any potential negative impact on rightsholders. Some of the options being considered are expanding the types of works covered by the exception, increasing the proportion of the work that can be copied (that pesky 1%), allowing students who are not physically on the premises of an educational establishment (think distance learners) to access copyrighted material under the exception, widening the definition of “educational establishment”, and finding a way to deal with the licensing schemes. Think of the amount of resources that would be freed up at schools and universities around the country by not having to think “Have I copied more than 1% of this? And anyway, is it covered under a licensing scheme?” If you’re in any way involved with education, I’d strongly encourage you to make your views heard on this one. You have until March 21st to do it.
And speaking of those licensing schemes, something else the government is considering is making copyright exceptions mandatory by not allowing them to be overridden by contracts and licenses. Many end users of copyrighted material - from libraries to anyone buying a track from iTunes find themselves bound by sometimes restrictive licensing agreements which override legal exceptions to copyright. This creates a huge amount of uncertainty: instead of knowing that you have the right to quote a work for review purposes you may find you need to check your license. It therefore also creates disproportionate administrative and transactional costs. Making exceptions mandatory would significantly reduce those costs and create a more certain legal environment.
These and a number of other proposals to extend exceptions to copyright within the existing EU legislative framework are very much steps in the right direction and we should welcome them and encourage them by responding to the consultation.
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