Copyright Exceptions Gaining Ground Around The World — But Not For The Blind

from the exception-to-exceptions dept

There finally seems to be a growing recognition in many countries that copyright is not fit for the digital age. In the US, the Copyright Registrar has spoken on this; in the UK, the Hargreaves Review delineated many problems; and more recently, Australia, too, is starting to address the question. As part of the process of implementing Hargreaves’ recommendations, the UK government is carrying out a consultation on whether the UK should adopt the full list of copyright exceptions that are laid out in the EU Copyright Directive, which provides the overarching framework for copyright in Europe. It has now published some questionnaires seeking input in this area:

Each of the documents below relates to a separate exception, and contains a series of questions. We would welcome answers to the questions we have posed and any specific drafting suggestions.

The first drafts we are publishing for review are the exceptions for private copying, parody, quotation and public administration. Drafts for the other exceptions will be released as soon as they are ready.

The exception for private copying is straightforward:

will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their
own personal use.

Regrettably, it does not allow the circumvention of DRM:

the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.

That really guts the new exception, since publishers will simply add DRM to prevent copies being made. On the plus side, the proposed exception does explicitly state that contracts seeking to restrict the right to this exception will be unenforceable. That’s also true of the proposed exceptions for caricature, parody or pastiche, and for quotation.

Although welcome, the UK’s proposed copyright exceptions are hardly earth-shattering. Moreover, they don’t change the fundamental approach to copyright in the UK. Australia’s latest proposals for updating copyright, published recently as an extremely thorough and clearly-written 388-page discussion paper are considerably bolder, because they recommend shifting from the current fair dealing approach to fair use. Where the former consists of a limited set of defenses against alleged copyright infringement, fair use lists the general factors to be considered in determining whether the use is a fair or not.

Australia’s proposed list of fairness factors are as follows:

(a) the purpose and character of the use;

(b) the nature of the copyright material used;

(c) in a case where part only of the copyright material is used — the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and

(d) the effect of the use upon the potential market for, or value of, the copyright material.

These are closely modelled on those applied in the US:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

However, it’s worth emphasizing that this is only a recommendation in a discussion paper (with comments open until 31 July.) Indeed, an alternative option is also presented, whereby the current fair dealing exceptions in Australian law would be extended to include a wide range of new ones, including for ‘non-consumptive’ use (temporary copies on the Internet, for example); private and domestic purposes; quotation; education; and libraries and archives.

Those are close to the more cautious approach being adopted in the UK (the Hargreaves Review noted the virtues of fair use, but claimed that there were “significant difficulties” in moving to it because of EU law.) But what’s interesting is that both the UK and Australia, with its two alternative proposals, recognize that exceptions offer an effective way to update the copyright system. That contrasts with the obdurate position of the copyright maximalists, who claim that granting any copyright exception for the blind, no matter how limited, would somehow cause the whole system to collapse. That’s simply absurd, as the current moves by both the UK and Australia to widen greatly the scope of copyright exceptions clearly demonstrate.

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Comments on “Copyright Exceptions Gaining Ground Around The World — But Not For The Blind”

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14 Comments
Anonymoussays:

in typical UK fashion, they have basically done similar to the US. given permission to reproduce what you own, but not circumvent the DRM. that being the case, can someone explain to me how the fuck you can ‘make a copy for personal use of a legally purchased original’? this is about as sensible as giving a red hot curry to a man with diarrhea and then locking the toilet door!!
mind you, the UK are a gutless bunch that always do what the US tells them over (not)copying. add in the bit where they are falling over themselves to please the BPI as well and you’ve got a recipe for disaster, as usual!!

the UK’s proposed copyright exceptions are hardly earth-shattering. Moreover, they don’t change the fundamental approach to copyright in the UK.
that’s because they haven’t got the balls, just like the US, to stand up for the people, you know, the ones that actually make or break a business. the fundamental approach to copyright is you buy it, you use it, you want a different format, you re-buy it, you fuck it up, you re-buy it! but if you want to make your own copy and can do so without bypassing or breaking the inbuilt protection, you’re very welcome! it takes the piss on top of your money then rubs your face in it!! and the labels and studios wonder why people act how they do and do what they do when they’re treated like this?

Richardsays:

Re: Re:

n typical UK fashion, they have basically done similar to the US.

Actually the UK have not copied the US in that. They actually started the whole anti-circumvention thing some years before the DMCA and the EU directives.
However there is a cimbersome workaround as follows.

Permitted acts

Whilst it may be legitimate for right holders to use these tools to prevent copyright infringement, they can also prevent permitted activities that fall under copyright exceptions.

The exceptions for use of DRM protected works are narrow, but if you consider your use falls under one of the exceptions you may request a workaround to the protection measure from the right holder.

Under UK copyright law, if the right holder does not provide an effective workaround, you may issue a ?notice of complaint? to the Secretary of State. If your complaint is upheld the Secretary of State may issue directions on how to ensure that you are able to make use of the work in the way permitted by law.

Dukesays:

Re: Re: Re: Re:

Under UK copyright law, if the right holder does not provide an effective workaround, you may issue a ?notice of complaint? to the Secretary of State. If your complaint is upheld the Secretary of State may issue directions on how to ensure that you are able to make use of the work in the way permitted by law.

Iirc when the Hargreaves review looked into this they found out that there was no record of anyone ever using the complaints procedure. I’m not sure if this means that no one wants to circumvent DRM to do something legal, or that no one cares about circumvention of DRM being illegal.

I’m also not aware of any cases being brought against someone for circumventing DRM (merely for producing/selling stuff to help with it) – and the law itself is a bit ambiguous as to what it actually covers.

Dukesays:

Re: Re: Re: Re:

The current wording of the UK proposals don’t allow this, but it is something I will be bringing up with the IPO (and other people may want to as well, if they send in comments) – either we should be allowed to circumvent DRM to do something that would otherwise be legal, or we should be able to acquire are “personal copy” from any source (or both).

out_of_the_bluesays:

Uploading to file hosts to "share" with the world NEVER fair use.

The misleading title had me expecting some big change: “will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use.

Regrettably, it does not allow the circumvention of DRM:”

Looks to me like Europe is aligning with US law.

“That contrasts with the obdurate position of the copyright maximalists, who claim that granting any copyright exception for the blind, no matter how limited, would somehow cause the whole system to collapse.” — One must be obdurate when in the right: anything less is actually a failing. From there minion trots out an egregious “for the blind” ploy.

PaulTsays:

Re: Re: Uploading to file hosts to "share" with the world NEVER fair use.

So, you’re saying you don’t give a shit about the disabled as long as your masters’ agenda is complete? Typical. If only there was a similar way to block someone with your mental disability from posting here as easily as you remove rights from the blind…

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