Copyright in the Digital Age

Still the bedrock of creativity and the creative industries

Choose a subject

●     New EU Copyright Act takes another step

●     Filesharing highlights collision of free speech and copyright

●     Introduction to Collective Licensing seminars

●     Brexit and the realpolitik of trade agreements

●     Three post graduate bursaries in copyright

●     Orphan Works Database given user approval

●     Seven-year-olds given copyright lessons to curb online piracy

●     Why Europe’s New Copyright Proposals Are Bad News for the Internet

●     ‘EU copyright legislation will not change in UK after Brexit’ argues Kaye

●     EU copyright reform proposals “sensible” say publishers

●     Publishers stress importance of Robust Copyright Regime Post Brexit

●     Congratulations to Dr. Aislinn O’Connell

●     Fit for Change? Copyright for Publishers in the Digital Age – Abstract/Intro

●     Copyright thesis – Chapter 1 Literature Review

●     Copyright thesis Chapter 2 – A Historical investigation of copyright

●     Copyright Thesis Chapter 3 – Legal Investigation

●     Copyright thesis Chapter 4 – Blocking initiatives

●     Copyright thesis Chapter 5 – Copyright and the UK Economy

●     Copyright thesis Chapter 6 – The Hargreaves Exceptions

●     Copyright thesis Chapter 7 – Alternative approaches

●     Copyright thesis – Conclusions

●     Index, List of Abbreviations, Tables of Cases & Legislation, Bibliography, Appendices 1&2

●     World Book and Copyright Day

●     EU’s new action plan for copyright and digital platforms

●     Google News Leaves Spain

●     Exceptions impact on business: air your views on 20 October 2014

●     Last Copyright Exceptions Come Into Force Today

●     Copyright and the UK Economy

●     Copyright Briefing – July 14

●     Culture of the Public Domain – A Good Thing?

●     An Employment Focus on the Creative Industries

●     Copyright exceptions back on track

●     Exceptions Update

●     LBF14 – Day 2

●     LBF14 – Day 1

●     New Director for Copyright and Enforcement Speaks

●     Copyright and the Future of Global Content Industries

●     Commons Committee warns against diluting IP rights

●     CLSG Launch Report: Streamlining Copyright Licensing for the Digital Age

●     IPso FACTo debate at Stationers Company

●     Publishers Launch Global Exchange on Copyright

●     Funding given to kick-start Copyright Hub

●     IPO thoughts on copyright and the economic effects of parody

●     Modernising copyright – February 2013

●     Stationers and UCL in joint copyright research initiative for communications and content industries

●     Government publishes proposals for changes to UK copyright

●     Stationers offer bursary to copyright research student

●     Hooper recommends UK Copyright Hub

●     Copyright adds extra £3 billion to national accounts

●     Hargreaves warned on damaging UK creative industries

Stationers Bursary PhD student Aislinn O’Connell (see here for more information) is now in the second year of her studies, researching copyright, the impact of the digital shift, and the case for copyright in the future, both economically and otherwise. As part of her research programme, she gave a seminar in November of 2013, on the topic of “Copyright and the Future of Global Content Industries”. The text of that seminar is reproduced on this site for anyone who may be interested.
Aislinn’s current plans include passing the university’s upgrade procedure, followed by commencing an economic investigation of the rationale behind copyright and the value of copyright to the UK economy.

Introduction and Summation of the Past Year

Good evening and welcome. Over the course of the last ten months, I have spent a substantial amount of time grounding myself in copyright. As well as this, I have met with each of you, my sponsors individually to ascertain their ambitions and aims for this PhD project. I have begun to develop the academic skills necessary to complete the project through attending seminars within my department, making presentations to the department staff and students, and attending a range of conferences, workshops and forums to develop my knowledge of the subject as a whole. I am also immensely grateful to you for inviting me to a range of interesting and relevant experiences such as publisher’s content forum meetings, licensing negotiations, open meetings, report launches and a host of other activities. At present, under the supervision of the Rt Hon Professor Sir Robin Jacob, I am developing a chapter of my thesis titled ‘A legal investigation of copyright’. Tonight’s talk will focus largely on the content of this chapter. I will start by discussing the copyright situation in the UK, including the currently on-hold graduated response system. I will then expand to consider copyright reform in the rest of the world, discussing Canada, Australia, the US, Ireland and Europe and how they may be compared or contrasted to the UK before concluding, leaving time for questions or comments.

Background of Copyright in the United Kingdom

As you are all no doubt aware, there has been a substantial amount of movement in the intellectual property arena as a whole, as well as within the copyright sphere, with great strides being made with the copyright hub in the UK, licensing being discussed at EU level and in other major common law countries. Reaching back almost a decade now, to the Gowers Review of 2006, the copyright regime in the UK was declared fundamentally strong, but more than 50 recommendations were made to improve it, probably the largest of which would have been increased flexibility in private copying and format-shifting. Gowers was superseded by Hargreaves in 2010, of course. The reform of copyright has been strongly lobbied for by interest groups and the intellectual property regime has been derided as “obstructing innovation and economic growth”[1] by Professor Hargreaves in his 2010 report. But is copyright legislation really so broken as it seems? Is drastic reform needed to encourage the creativity which is apparently being stifled by the restrictive and archaic laws put in place back in the dark ages of… the 1980s?

As it stands, copyright in the UK is governed by the 1988 Copyright, Designs and Patents act. Various changes have been made to the Act since its inception 25 years ago, most notably to give effect to EU Directives (the most important of which being the Information Society (InfoSoc) Directive 2001. This Directive’s effect in the UK was mainly to change the definition of broadcast and broadcasting to include the internet. The Directive also provides for a suite of optional exceptions to copyright for a variety of reasons, including teaching, disability, reporting, criticisms, public security, religious celebrations, caricature, parody or pastiche, etc., but the UK did not implement these exceptions.

Beyond the specific legislation which regulates the existence of any exceptions to copyright, there are various measures in place to ensure the enforcement of copyright in the UK. Unfortunately, these are not quite as developed or implemented as one might have hoped.

The Digital Economy Act 2010, which came into force on June 8, 2010, envisages a system which aims to make it easier to track down and stop persistent copyright infringers. It provides for the existence of a ‘graduated response’ system which acts to stop copyright infringers with a ‘three strikes’ ISP policing method. While Ofcom published their code in 2012, supporting this three strikes system, it has yet to actually be implemented in the UK.  Graduated response has also been implemented in other jurisdictions – but it hasn’t always had an easy time.

Graduated Response Schemes and their Difficulties

Graduated response in other jurisdictions has had a rocky ride – France’s HADOPI (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet) was established in 2009, and in the four years to 2013, according to the online weblog the IPKat[2], issued only one disconnection order, coupled with a fine of €600. For a country of some 65 million people, this is an astonishingly small number of prosecutions.

In the United States, graduated response differs slightly in that it is a voluntary, private system run by ISPs known as the Copyright Alert System. It has been branded a ‘six strikes’ programme with penalties not fines or disconnection, but in-browser alerts, online copyright education courses or bandwidth throttling[that is to say, limiting the speed of the customer’s internet]. Although the framework for the CAS was put in place in 2011, after multiple delays, implementation was only achieved in February of this year, meaning that it has been running for some nine months now. However, as some entrepreneurial pirates have shown,[3] the system is not fool-proof, and it can be difficult for ISPs to actually flag users who are sharing copyrighted content; avoiding alerts can be as simple as masking one’s IP address. It will certainly be interesting to see if reports are issued on the effectiveness of the CAS in the future and use them as an example for the UK. Certainly, it seems that a more sophisticated system will have to be developed if an effective graduated response system is to be put in place.

Small Claims

On a far smaller scale, a recent addition to the copyright enforcement schemes in the UK has been the introduction of the small claims track to the Patents County Court (now known as the Intellectual Property Enterprise Court) last October (2012). This allows small claims (up to £5,000) to be made by small and medium firms in an informal hearing, without legal representation. This is an important provision to allow small stakeholders to pursue infringers without the deterrent effect of massive legal costs. The IPO also provides mediation and IPO tribunal hearings, affording a suite of options to small businesses to protect their intellectual property rights (including copyright).

Licensing and Exceptions

Although the current exceptions to copyright are quite slim [largely composed of non-commercial research, private study, incidental copying, criticism, review and reporting, and visually impaired persons], there is a movement towards expanding exceptions [such as for education, parody, text and data mining, and quotation]. This is in contrast to the aims of the Copyright Hub, which aims simply to enable easier licensing. These two movements have differing strengths and backers. The weight of Hargreaves behind the movement to expand exceptions lends credence to its aims, but it is currently snarled in a mire of debate between content owners and content users. The move to expand exceptions is certainly one which requires further discussion, but unfortunately I do not have the time for that here tonight.

Copyright Reform Around the World

There is little doubt that copyright reform is a hot topic of the moment. The UK was both ahead of and behind the curve with the Hargreaves Review in 2010 and the IP Bill[4] currently making its way through the House of Commons (at present awaiting a date for second reading). But it is definitely a part of a wider movement to consider the changes afoot in the copyright arena. The movement for change and reform in copyright has been seen in Canada, with their IP Modernization Act of 2012[5], shortly followed by no fewer than five Supreme Court decisions[6] on a single day relating to copyright; in Germany[7] and India[8], with their legislative changes; in Australia[9], which is due a Law Reform Commission report by the end of this month, expected to recommend substantial change; in the European Union, which has on-going processes regarding licences[10], orphan works[11], and infringement procedures[12]; in Ireland, whose Copyright Review Committee recently released  a report[13]; and in the US, where the Copyright Office has recommended an administrative tribunal for small claims[14].

Certainly, the UK is not alone in the movement towards copyright reform. It is apparent that copyright is in a state of flux the world over. I hope that by considering, comparing and contrasting the measures implemented and recommended by various legal authorities around the world, I will be able to evaluate and assess the impact of the measures already implemented in the UK and potentially model the effectiveness of the recommendations which are planned to be implemented in the future.

In this section, I will discuss firstly Canada, followed by a short discussion of Australia’s forthcoming  ALRC report. I will then move on to discuss the US, and its fair use doctrine. Following from this, I will discuss the Irish reform report, comparing with the UK, and finally, I will touch briefly upon the movement at European level with regard to licensing.

Canada and the Copyright Pentalogy

First, then, to the Canadian copyright regime, which was so hugely reformed a mere eighteen months ago. The Canadian legislators passed the Copyright Modernization Act in 2012, an Act Amending the Copyright Act 1985. The Act was amended following Canada’s signature of the WIPO internet treaties (although that was in 1997) and allowed the Canadian government to ratify those treaties, some fifteen years later. Along with the long-awaited ratification of the WIPO treaties, the Canadian modernisation of their Copyright Act had, according to its own summary, eight aims, which were to:

a)      update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

b)      clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;

c)       permit businesses, educators and libraries to make greater use of copyright material in digital form;

d)      allow educators and students to make greater use of copyright material;

e)      permit certain uses of copyright material by consumers;

f)       give photographers the same rights as other creators;

g)      ensure that it remains technologically neutral; and

h)      mandate its review by Parliament every five years.

As you can see from this brief summary, technological development was a strong driver of this reform. The liability of internet service providers (ISPs) has been contentious the world over. While many ISPs have taken responsibility for the content they provide access to (this can be seen in our earlier discussion of the Copyright Alert System), actual liability for providing access to content is less well received. The Canadian Act means that it is an offence to provide access to infringing material. Similar liability for ISPs can be seen in multiple different territories, including the UK, where the High Court in 2012 granted an injunction against an ISP (British Telecom) under Section 97A of the CDPA.[15][16] In contrast to this, we can see the Australian decision in iiNet[17], which was a decision substantially more favourable towards ISPs. The effect of this, however, may well be nullified by the ALRC report. In my personal opinion, however, ordering ISPs to block infringing websites, and indeed linking websites, as was ordered in Paramount & Others v BskyB & Others, is akin to fighting the hydra by cutting off its head. Three will spring back in its place. The stumps must be charred to prevent regrowth. This may, however, prove difficult for the EU, considering Advocate-General Cruz Villalón’s opinion this morning that while specific injunctions blocking infringing sites are permissible, general filtering is not.[18]

Technology Neutrality and Future-Proofing Legislation

When considering Canada again, an interesting point which arose from the Supreme Court decisions of 2012 was that of technological neutrality, that is to say laws which are absolutely not dependent on a particular technology.  It is in reality difficult to achieve. Ideally, neutrality would mean that laws are perpetually effective, eliminating the need to redraft laws every time there is a technological development.

Neutrality is enshrined in many different jurisdictions – the US has described it as ‘a fundamental principle of the Copyright Act’ and intentionally ‘future-proofed’ their legislation so that the rights it protects are not technology-specific. The UK similarly has tried to future-proof its legislation with the existence of the ‘communication to the public’ right – the ability of copyright owners to regulate and control this means that they should, in theory, be able to prevent unauthorised distribution of their works. Technology neutrality was first mentioned in an EU publication in the late 1990s: “Regulation should be ‘technology-neutral’: as few as possible new regulations, policies and procedures should be specific to the new services.”[19] Similarly, the Australian Law Reform Commission has declared an objective of their copyright law revision process to ‘replace technology-specific rights with technology neutral rights so that amendments to the Act are not needed each time there is a development in technology’. The movement towards technology neutrality would then ease the development of copyright law greatly in the future, as it would theoretically eliminate the scramble for legislators to keep up with technological developments.

For the Canadian Supreme Court, technological neutrality made an appearance in three of the five decisions of the Copyright Pentalogy. Interpretation of technological neutrality is as varied as the technologies it attempts to circumvent – from the theory that the method of technology used is irrelevant (e.g. a photocopied book is no different to a DRM-free ebook) to the theory that neutrality should balance the relative differences of the technology – i.e.  slightly different regulations can be implemented for different technologies, similar to this cartoon:  The approach taken by the Canadian Supreme Court would be analogous to the right hand side of the picture – providing equivalent effect across technologies, may justify different treatment as substantively technologically neutral, as overlooking differences would lead to unequal results.[20]

In ‘future-proofing’ legislation, however, difficulties still arise – it is difficult to tell, in new technologies, which rights should apply. The rapidity of development means that even rights written intentionally neutrally can still require a certain amount of interpretation. As Shira Perlmutter observed – “which rights are implicated by a particular type of dissemination – for example, ‘making available’ online? Reproduction? Distribution? Rental? Communication?”[21]

The Canadian Supreme Court in the Copyright Pentalogy could not seem to come to agreement on this. The minority in ESA considered dissemination over the internet to be a communication right, where the Rogers decision declared it communication ‘to the public’. The possibility of future-proofing legislation is one which has to be carefully considered. If Canadian Supreme Court decisions issued on a single day in 2012 cannot agree with each other, then what hope is there for a variety of UK cases to be decided over the coming years, attempting to apply a deliberately vague framework to yet more new technologies?

Australia and the ALRC Report

Australia is currently awaiting a Law Reform Commission Report, which is due before the end of the month. The ALRC has been conducting an inquiry into copyright since June of 2012. In the 18 months since then, it has published an Issues Paper in August of 2012 and a Discussion Paper in June of 2013, to which responses were open until the end of July of this year. It is clear that this has been a long-term project, with ample opportunity for consultation given to interested parties. The publication of their report at the end of this month will certainly be an interesting time, as the reforms suggested in the discussion paper were quite expansive. They included the repeal of statutory licenses and the introduction of a ‘fair use’ exception, as well as discussion on orphan works, broadcasting, private and domestic use and a variety of other topics. The discussion paper was broad and wide-ranging, and proposed some radical changes to Australian copyright law. I await with interest the publication of the report to see if the ALRC maintains its recommendations, especially with regard to education and private and domestic use. With the release of the report so soon, it would be foolish to discuss what is likely already decided, and so I will not make any substantive analysis of the Australian position.

The United States, Fair Use and Small Claims

Continuing on, then, I shall discuss the United States. The single biggest difference between the American and British copyright regimes is that between fair dealing and fair use. In the UK, fair dealing is a narrow set of exceptions to copyright, for the purposes of non-commercial research and study, criticism or review and reporting of current events.[22] In order to apply these exceptions, it is necessary to prove first that infringement has occurred, and secondly that the infringement falls under these sections. Incidental inclusion, although not included in the CDPA, is also not an infringement.

In the United States, fair use is defined in 17 U.S.C. § 107[23]. Although the section appears at first glance to provide strict definition, fair use is infinitely more confusing than that. With a variety of purposes for which fair use may be applied (criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research) and four factors to consider when determining whether or not a use is fair (purpose, nature, amount and substantiality, and effect on market and value), the determination of fair use or not is a complex and potentially impenetrable field.

A recent application of fair use can be seen in the Google Books judgement[24], which was published on November 14th, and declared the scanning of copyrighted works held by libraries, without the permission of the rights holder, to be fair use. This was certainly a shock to many copyright commentators and may have far-reaching consequences. The Author’s Guild is appealing this decision, but it certainly will be interesting to observe how this develops in the future.

For the above reasons and more, Gowers and Hargreaves both rejected the idea of implementing a US-style fair use provision in UK law. The recent Irish copyright review council report, which I will discuss in more detail later, however recommended that Ireland  “[e]xamine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context”. It has been suggested[25] that this would be impossible under the current EU framework, as it would contravene Article 5 of the InfoSoc Directive. The Irish report does not seem to agree with this viewpoint, but certainly it remains to be seen what will happen here.

Earlier in this talk, I discussed the small claims track of the IPEC in the UK. It is clear that the UK is not the only jurisdiction which is considering the difficulties which small and medium businesses may face in protecting their intellectual property rights. The US Copyright Office was asked by Congress to conduct an investigation into the challenges of the current system for resolving small copyright claim disputes. This study resulted in the publication of a report of the Register of Copyrights last September 2013, which agreed that the challenges for small companies in protecting their copyright are formidable. The report recommends an adjudication process in which participation is voluntary, and suggests the creation of a tribunal process within the Copyright Office. Parallels can be drawn to the UK system, which, while not adjudication (although that is offered by the IPO), is informal and conducted in judges’ chambers rather than in the courtroom, and is limited to relatively small amounts. The movement towards simpler adjudication of copyright disputes is certainly one which will be welcomed by small and medium businesses – as the report stated, while they are known as ‘small claims’, they are surely of no small importance to the businesses whose rights are infringed.

Ireland and the Copyright Review Council Report

The Irish copyright regime is singularly interesting in comparison to the UK copyright regime, given how similar the two jurisdictions are. Being a former territory of the British Empire, the majority of basic principles of Irish law are identical to that of the UK and indeed, some UK acts are still binding authorities in the Irish courts. Given also that Ireland is a member of the European Union, and thus is subject to the same provisions as the UK, it is easy to draw parallels between the two and their respective copyright regimes.

It is with interest, then, that we shall look to the Copyright Review Committee’s report, published in October 2013, and its recommendations for the future of copyright in Ireland. It makes several recommendations to change the copyright law of Ireland, which is contained in the Copyright and Related Rights Act, 2000 (as amended). Some recommendations follow the example set by the sterling work of Richard Hooper and Dr Ros Lynch, in that it recommends the establishment of a Copyright Council independent of government, which will then set up a digital copyright exchange, while others differ.

The report recommended the extension of the Small Claims procedure in the District Court to include IP claims up to the same standard limit. This is largely similar to the current regime in the UK, albeit IP claims here are heard in the IPEC. The fact that Ireland doesn’t have one of those may be a reason for the difference there. It was also recommended that the Controller of Patents, Designs and Trademarks be renamed the Controller of Intellectual Property. This is another recommendation which has echoes of the UK system, in which the Intellectual Property Office is an operating name of the Patents Office

A particularly interesting recommendation of the council was that hyperlinking should not be considered an infringement of copyright “except where the provider of the link knew or ought to have been aware that it connects with an infringing copy”. They also make a recommendation that such links may be accompanied by a “very small snippet” of the work, and give suggested limits for this snippet length (“no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words”). An interesting point to consider for this would be how this would interact with the questions raised in the NLA v Meltwater case – in linking to a newspaper article, would the headline be considered a separate work, or would it be permissible to link to a (legitimate and non-infringing) work and include the entire title or headline? This is certainly a question worth considering a little further. In fact, hyperlinking is being considered by the CJEU in Svensson (Case C-466/12), C More Entertainment (C-279/13), and Bestwater (C-348/12), which is paused pending Svensson’s decision, as well as in independent opinions by the European Copyright Society[26] and ALAI(Association Littéraire et Artistique Internationale)[27], as well as contradictory rulings from the Spanish criminal courts.[28] Last week, Mr Justice Arnold declared that a link is not a communication to the public[29], but declared that the websites in question were doing more than just linking and ordered six British ISPs to block the websites considered in the case.

The Irish report also puts forward a suggested range of remedies for copyright infringement. It is certainly difficult to envisage an arena in which each and every copyright breach will be prosecuted, but a range which varies from ‘no damage intended’ to the most serious of commercial breaches is one which may be considered to be a flexible and modern regime which is appropriate in the content creation arena we now find ourselves living in.

A certainly important recommendation of the council is that Ireland brings into effect the full range of exceptions permitted by EU law – this is something which I am aware that the UK has not been keen to do, as it may negatively affect business models – some certainly consider the range of exceptions to be too wide. However, it certainly seems like a logical step to the everyday user – a large proportion of the British public is unaware that format-shifting is not actually permitted, according to Gowers, and it would not be unreasonable to assume that this misconception has only become more widespread in the following years. Many users would certainly argue that it is an instinctive and natural use of the IP which they have paid for. The report also, as discussed earlier, recommended the investigation of a US-style Fair Use exception, but that certainly may not interact well with InfoSoc.

The report differs from Hargreaves’ 2010 opus in that a large part of it is made up of a draft bill which would allow the enactments of the recommendations the committee has made, effectively removing a step in the process of implementing those aforementioned recommendations. This may speed its progress through the Oireachtas along, and so it is possible that we may see the implementation of an Irish IP bill before that of the UK bill, despite the three-year time lag between their respective consultations.

The European Commission, and Licences for Europe

In the European Commission, the Licences for Europe group has been working diligently since the publication of the Communication on Content in the Digital Single Market. The final Plenary Meeting took place on 13th November and produced ten pledges:

The discussion of licensing seems, according to Richard Hooper[30], to be not focused on actually extending exceptions, just in making it easier to licence content. This can be seen also in the multiple appearances of the word ‘easier’ in these ten pledges. This appears to be in parallel with the movement in the UK, which is attempting, through the Copyright Hub, to make it easier to obtain high frequency, low value licenses. The difficulty of obtaining licences for these often deters users. Rectifying this is the aim of the Copyright Hub, and certainly it seems to be well matched with the attitude in the European Commission at present.

Other European consultations on orphan works and infringement procedures are also in the works, but unfortunately my time tonight is limited.


In conclusion, it is clear that we are living in a time of great change for copyright the world over. New issues of technology, interoperability, small and large claims and enforcement are coming to light every day and to discuss everything is simply impossible. I hope that today I have given you some small idea of the areas in which I am working. I discussed the UK and the changes afoot here, as well as the still-pending notice and takedown system which will hopefully be the UK’s graduated response system. I also discussed the movement for copyright reform which is visible all over the world, highlighting what has been changed in Canada and the US, mentioning the forthcoming change in Australia and commenting on the recommendations for change made in Ireland. I also touched upon the Licences for Europe movement and how it relates to the UK.

For content providers, it is not the drastic abolition of copyright which must be feared, but rather the slow creep of the gentle erosion of the limits of use permitted without specific permissions from content owners. The global movement around reform must be carefully assessed and considered.

In the coming months, I hope to continue my investigation of the legal changes afoot in the copyright world in various common law jurisdictions. I also plan to conduct a comparative analysis of the UK as a common law European jurisdiction and the differences or difficulties it may present as against a civil law jurisdiction. After finishing this chapter, I am hoping to begin work on my economic investigation of copyright, attempting to model the value of copyright in the UK and comparing and contrasting it with other jurisdictions.

I would like to thank you all for listening to me tonight and would like to take this opportunity to invite any questions or comments you may have at this time.

[1] pg 1[2], accessed 13/11/2013

[3] Dailydot, accessed 4/11/2013



[6] July 12, 2012, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada – 2012 SCC 34 – [2012] 2 SCR 231 – 2012-07-12;Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada – 2012 SCC 35 – [2012] 2 SCR 283 – 2012-07-12;Society of Composers, Authors and Music Publishers of Canada v. Bell Canada – 2012 SCC 36 – [2012] 2 SCR 326 – 2012-07-12;Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) – 2012 SCC 37 – [2012] 2 SCR 345 – 2012-07-12;Re:Sound v. Motion Picture Theatre Associations of Canada – 2012 SCC 38 – [2012] 2 SCR 376 – 2012-07-12

[7] See Achtes Gesetz zur Änderung des Urheberrechtsgesetzes Vom 7 Mai 2013 available at


[8] See the Copyright (Amendment) Act, 2012; available at

[9] See Australian Law Reform Commission Inquiry on Copyright and the digital economy, available at

[10] See Licences for Europe (2013); available at

[11] See Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works; available at

[12] Commission Communication To The European Parliament, The Council, The Economic And Social Committee And The Committee Of The Regions A coherent framework for building trust in the Digital Single Market for e-commerce and online services (SEC(2011) 1640 final) (11 January 2012); available at and see generally

[13] See

[14] See Copyright Small Claims. A Report of the Register of Copyrights (US Copyright Office, 2013); available at

[15] Twentieth Century Fox et al. v. Newzbin Ltd [2010] EWHC 608

[16] Several other decisions have been made since then relying on the same section, including EMI & Ors v BskyB & Ors [2013] EWHC 379 (Ch), which ordered blocking of three filesharing websites last February, to be implemented by this winter.

[17] Roadshow Films Pty & Ors v iiNet Ltd [2012] HCA 16

[18] Discussion on this can be seen on the IPKat weblog,

[19] Opinion of the Economic and Social Committee on the “Proposal for a Council Recommendation concerning the protection of minors and human dignity in audiovisual and information services”, OJ C 214 10 July 1998 p. 25 para. 3.2.5

[20] Carys J. Craig, Technological Neutrality: (Pre)Serving the Purposes of Copyright Law, The Copyright Pentalogy, Edited by Michael Geist, pp. 271-299, @p274

[21] Shira Perlmutter, ‘Convergence and the Future of Copyright’ (2000) 24 Colum-VLA JL & Arts 163 at 173

[22] CDPA, ss. 29, 30, 178.

[23] Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[24] Authors Guild Inc et al v. Google Inc, U.S. District Court, Southern District of New York, No. 05-08136

[25] By Eleonora Rosati, on the IPKat,, accessed 13/11/2013

[26], last accessed 21st November 2013

[27], last accessed 21st November 2013

[28], last accessed 21st November 2013

[29] In Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 3479 (Ch)

[30]Speaking at the launch of the CLSG’s Annual Report in September 2013

© Copyright in the Digital Age