A limit to freedom or just protection of creative works? A Lay Law Tips Opinion by Rabia Majeed
A Brief History of Copyright
Copyright law or the law that prevents individuals from copying other peoples work can generally be traced in the UK all the way to the Statute of Anne in 1709. This statute granted rights to the author instead of the printer for the first time in the UK. The act was generally produced in an effort to encourage learning. Copyright exists in an effort to incentivize individuals to work hard and produce artistic or factual works in exchange for the right to benefit financially from that work. At the time of the Statute of Anne the time period that was deemed fair for the author to continue to benefit solely from their works was 14 years after the production of the work.
What is the law?
In the UK today copyright, unlike patents, is automatically granted to the author of a work from the date of its creation. Currently, copyright in literary, dramatic, musical or artistic works expires 70 years from the end of the calendar year of the author’s death. The law of copyright is governed by multi-national treaty’s such as the Berne Convention, the Rome Convention and the national Copyright Designs and Patent Act of 1988 (CDPA) (Updated in 2003). The owner of the copyright to a work is given the rights by virtue of section 16 of this act to copy and distribute their work for financial profit in multiple forms.
Exceptions to copyright in the UK and USA
In the UK under the CDPA copyright exceptions are generally acknowledged as highly restrictive.
These exceptions include for the facilitation of visually impaired persons, for libraries and archives, for public administration, for computer programs and “fair dealing”. Fair dealing is very limited as it can only be used to justify research and private study of a work or criticism/review of that work.
The “fair dealing” exception to UK copyright should not be confused with the “fair use” exception, which is legal across the pond (in the US). Fair use as opposed to fair dealing includes a vast list of ways to copy but not infringe copyright including commentary, search engines, criticism, news reporting, research, teaching, library archiving, scholarship and most interestingly parody. There is a four-step balancing test that can be used to provide legal incorporation of copyrighted material of another authors work.
Is the law fair?
According to “The Hargreaves Recommendations”, a set of recommendations made by a UK judge to changing UK copyright law, there are four exceptions that need to be added to UK copyright law.
The first is format-shifting which would allow for the making of copies on different media for their own and their family’s immediate use. Hargreaves argues that the cost of having these extra copies available could be made up for in the pricing of the purchase of the work.
The second recommendation in expanding non-commercial research to include text mining and data analysis for the purposes of research.
The third exception is to expand the exception to library archiving to include copying to preserve audiovisual works and sound recordings.
The fourth and final recommendation Hargreaves contemplates is that of parody, which is already incorporated as a fair exception in US law under fair dealing. Hargreaves suggests the law in the UK should be expanded to reflect social norms such as video parody on sites like YouTube and social networking sites. He argues that parody has an economic and cultural impact that would justify this exception.
In my opinion copyright law has gone too far in two ways: the span of the copyright protection (70 years after the authors death) and the limited exceptions to copyright in the UK. The intention of copyright is to protect individuals so they can benefit economically in a fair way from their creative work, however I believe that the balance has tipped in favor of the authors. Another crucial factor for me is the right for others to use previous works to further society. In this way individuals can “stand on the shoulders of giants” and improve life for all of humanity. Furthermore copyright has become more and more restrictive as time goes by to accommodate not only the author but the author’s remaining family. I believe that when you create something you only stand to gain so much from it before it belongs officially or unofficially to the public domain.
This problem is also reflected in my second objection to current UK copyright, in the limited amount of exceptions of the law. Parody is in my view a highly valid form of human expression and can stand to further advertise the author of the work as well as glorify their creative genius. A current example of this is the series of Hitler Downfall parodies on YouTube. The film although not unheard of was hardly as popular prior to this trend, illustrating how multiple parties can benefit from the parody of a work.
I therefore find myself agreeing with Hargreaves recommendations and wondering if we have let the law bend itself too far in the favor of individual authors, but also wondering how we can fix this by bending the law back in the favor of the public. Something to ponder for lawyers and politicians of the future.
Rabia Majeed is a senior honours student in International Relations and Law at the University of Edinburgh. She specialised in information and technology law during her final year. In 2014-15 she will be pursuing her juris doctor in the US. She also runs not-for-profit custom photography project at Pictures to Help (www.picturestohelp.com) where individuals and businesses donate to a charity of their choice in exchange for personal or corporate photography services. Rabia was born in Oslo, Norway, and believes in the law as a practical and empowering tool. She writes in pursuit of sharing legal knowledge with all.