Considering rights in a digital age

ACTA, SOPA, the Hargreaves Review... the list of recent developments in the world of copyright goes on. But since when did copyright become such an internationally contentious issue? And what do all these twists and turns in policy and legislation mean for scholarly publishers and researchers?

Treaties on trade

Most countries have national copyright legislation protecting their creative works within their borders. But the real drive behind copyright policymaking comes from multilateral treaties, in particular those to do with trade. The Berne Convention of 1886 for the Protection of Literary and Artistic Works expanded the protection of a nation’s creative works in other countries as well.

Following this, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement introduced stringent rules around the protection and enforcement of copyright. These include a minimum term of protection for copyright works and mandate that any exceptions to copyright must be in line with the Berne three step test. This states that: ‘limitations and exceptions to exclusive rights [in copyright shall be confined] to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder’^[1]. TRIPS is one of the key agreements that underpin global copyright policy as its ratification is a compulsory requirement of World Trade Organization membership.

The latest news in the global intellectual property policy arena is the rejection of the Anti-Counterfeiting Trade Agreement (ACTA) by the European Parliament earlier this year. ACTA has been highly controversial since it was discovered to have been developed through a series of secret negotiations, arousing suspicion amongst the nations of the world as to the treaty’s actual intentions. The ACTA treaty focuses on the enforcement of intellectual property law in terms of taking action against offenders and infringers with relation to counterfeit goods and pirated copyright works.

The refusal to ratify ACTA by the European Parliament has led to a number of other signatories (such as Australia) voicing their concerns about some aspects of the treaty. Any change to ACTA will require agreement from all of the other signatories^[2] and this may be difficult as it would mean persuading them to return to the negotiation stage.

The latest version of ACTA is an improvement on previous versions in that it distinguishes between civil and criminal infringement. However, there are still a number of provisions within it which, if enacted, would have a significant impact on ordinary citizens. These include high damages and a low threshold for infringement; the ambiguous language could mean that unintentional copyright infringers find themselves in the category relating to criminal infringement.

The digital environment can be a very grey area in which to interpret exceptions and limitations for copyright, yet the text of ACTA does not specifically mention any legal defences to claims of copyright infringement. A strengthening of enforcement processes should also bring with it a strengthening of defences and to some extent a form of immunity against spurious claims, else there will be imbalance and consequences may be disproportionate to actions.

Bills and legislation that focus on enforcement may additionally impinge on the human right of freedom of speech and expression. This was clearly demonstrated in the United States with the public furore around the Stop Online Piracy Act (SOPA) and later with the PROTECT IP Act (PIPA). These bills would have introduced disproportionate measures for dealing with online infringement and potentially would have threatened ‘safe harbour’ provisions which ISPs and other websites currently have under the Digital Millennium Copyright Act. Both SOPA and PIPA have been shelved until a more agreeable solution can be reached.

Researchers in countries that have become signatories of ACTA should consult their national laws to determine activities that they are permitted to do under the law. For example, although the treaty has not been ratified in the European Union (EU), it is still important to note that member states are bound by the Information Society Directive, which permits use of works for the purpose of scientific and non-commercial research.

In a world where the boundaries between commercial and non-commercial are increasingly blurred, this exception is likely to come under legal scrutiny, but until it does there is a lot of confusion around the issue of whether research is truly non-commercial. There is however a strong argument made by eminent legal authorities that it is the research activity which defines it as non-commercial, not the organisational structure nor the means of funding^[3]. If, at the time the research is carried out, there is no intention to produce results for commercial use, the activity is more likely to be deemed non-commercial for the purposes of this exception.

Suitable for a digital age?

National reviews of copyright law are currently underway in several countries, including the UK, Canada and Australia. Generally speaking, creators and rights holders believe that copyright law works well and does not need major reform. On the other hand, the majority of users vehemently disagree, stating that copyright needs to be updated to take into account digital processes.

The power in policymaking has historically been with the creative and media industries, who have the financial power to influence politicians. The internet, however, has given a mouthpiece to another aspect of the argument: that of the users. The user influence is now filtering into policymaking in the hope of restoring copyright to a sensible, balanced and proportionate law.

The precepts of permitted acts in copyright law have generally been sensible, such as permitting the use of works for educational purposes, and copying done by librarians and archivists to support researchers. But over time these have become redundant and obsolete as technology has moved on. It is no longer possible to copy by means of a non-reprographic process to achieve the same purpose. By adjusting the exceptions and limitations to copyright to enable the continuation of the same activities and update them so that they are no longer out of sync with technological processes, copyright will be much less of a stumbling block to those who are delivering services to the public.

The Hargreaves Review

The Hargreaves Review of Intellectual Property (IP) in the UK began at the end of 2010 with a remit to investigate whether current IP law was hindering innovation and economic growth in the UK. The review, led by Ian Hargreaves, professor of digital economy at Cardiff University, found that UK IP law (in particular copyright) was not wholly suitable for the digital age. It made 10 recommendations for improvement.

The UK government broadly agreed with the recommendations and produced a consultation document at the end of 2011 that invited stakeholders to comment on different areas of copyright. These included licensing and educational uses of copyright works including research. The consultation closed in March, and the government’s first response came out in July and focused on collecting societies and orphan works. Exceptions, such as those for education and libraries, will be covered in its second response later this year.

Publishers’ organisations, both nationally and internationally, have condemned the UK government for what they perceive as ‘weakening’ the copyright regime. Publishers themselves are sceptical that adjusting the current exceptions will have a positive impact and believe that this would only serve to further muddy the legal waters and cause more confusion. However, the government’s response makes specific reference to measures that can be used by rights holders to enforce copyright, such as the use of the small claims track in the Patents County Court and the use of measures in the Digital Economy Act to take action against online copyright infringement.

Research councils and libraries, on the other hand, are supportive of the proposed changes. Researchers already benefit from exceptions such as fair dealing for non-commercial research, but the exceptions are limited, omitting audiovisual works. Research should be given the scope it needs in law to enable rapid discovery which will benefit the public.

Licensing initiatives or legal exceptions?

Intellectual property law in some countries has evolved faster than in others, which has led to discrepancies. Duration of copyright can vary between territories – a publisher wishing to publish a new edition of a text that is assumed to no longer be in copyright may discover that it is still in copyright in certain territories. Despite the discrepancies, it is vital that copyright is balanced and proportionate, permitting rights holders a high level of protection but enabling fair and reasonable use of works, whether that be in print or digital format.

Legal reform is necessary to ensure that the law does not fall behind technological advancement. Laws should provide safeguards to third parties hosting user services over which they have no control and should enable teaching, learning and research, not restrict them. However, licensing is extremely important in the digital age and will continue to be so, particularly given the increasing importance of access to information. Licensing is complex in that it fragments rights in copyright, and quite often the author can retain some rights whilst the publisher has exclusive rights to distribute, reproduce and communicate the work. In the UK, one of the government’s proposals included the creation of a Digital Copyright Exchange, a type of digital marketplace for the licensing of rights from rights holder to user. It will be interesting to see how this proposal develops over the course of the next year.

Emily Goodhand is the copyright and compliance officer at the University of Reading, UK. She is currently the vice-chair of the Libraries and Archives Copyright Alliance (LACA) and led LACA’s submission of evidence to the Hargreaves Review. She tweets as @copyrightgirl