Chapter 1: Literature Review
In order to conduct a literature review for this thesis, a grounding in the basics of copyright was first necessary. Thus, for the purposes of this thesis, a preliminary reading of core IP textbooks was conducted. While this established the basics of copyright, it also quickly became clear that it was not possible to use only textbook literature to study the development of copyright in the early 21st century. Indeed, textbook literature became outdated only too quickly. Therefore, this literature review focused on the literature that called for reform in copyright which became visible in the early 2010s, specifically in Anglophonic countries. In this short period, literature appeared from the UK, Ireland, Australia, and the United States advocating for copyright reform – and in some cases extensive copyright reform. For the UK and Ireland, this was compounded by the wider European movement for copyright reform. This review will look at the sources of this call and analyse the gap in the literature within which this thesis will sit. Due to the nature of the literature within which a call for reform can be found, this review focuses very much on ‘grey literature’ – that is to say, literature which is published for a specific purpose in order to achieve an aim, whether to convince the government that legislative change is needed, or otherwise, or indeed government publications themselves.1 The issue with grey literature is that it can tend to be biased – because it is commissioned or written for a specific purpose, it lacks the academic neutrality which comes with journal and textbook publications. The lack of academic literature is a problem which has been noted by members of government; Benjamin Mitra-Kahn, an economist with the UK Intellectual Property Office (IPO), discussed this in the wake of the Hargreaves Review.2 Despite the difficulties of working with grey literature, it is with regard to this call for change, which has come from multiple jurisdictions, that this literature review will position itself, while noting that the nature of grey literature is such that it will naturally fall on one side or other of a debate. Although there are other countries which have also made changes to their copyright legislation – including Canada,3 India,4 and Germany5 – this review elected to focus on the literature which preceded those legislative changes, rather than the legislation itself. Thus, due to language barriers and availability of grey literature, this
1 Charles P Auger, Information Sources in Grey Literature (4th edn, KG Saur 1998).
2 Benjamin H Mitra-Kahn, ‘Copyright, Evidence and Lobbynomics: The World After the UK’s Hargreaves Review’ (2011) 8(2) Review of Economic Research on Copyright Issues 65.
3 Copyright Modernization Act 2012 (Canada).
4 Copyright (Amendment) Act 2012 (India).
5 Achtes Gesetz zur Änderung des Urheberrechtsgesetzes Vom 7 Mai 2013 (Germany).
Chapter 1: Literature Review
review will use Ireland, Australia, and the United States as comparative jurisdictions against the UK, as well as considering the European Union on a larger scale.
The six years from 2010 to 2015 were a time of rapid change with regard to copyright. When considering textbook literature, it is essential to bear in mind that while the broad strokes may still be relevant, changes made to copyright legislation in the time since publication can render those textbooks out of date. Thus, with regard to copyright, many of the core textbooks have been unable to keep up with developments in UK and European copyright law. This is visible almost across the board; the Laddie, Prescott and Vitoria6 was published after the Hargreaves Review,7 but before it was accepted by government,8 and Copinger and Skone Jones, the sixteenth edition of which was published in 2011,9 and had its second supplement in 2013,10 does not include the nuances of the development of the Hargreaves exceptions. These two core texts on copyright could not keep up with the rapid developments of European and UK Copyright law. The rapid development of copyright law is problematic for textbook literature, and this holds true also for Bently & Sherman,11 which too was updated in 2014.12 While this is equally a clear and dependable text, a staple in the library of the IP scholar, it became outdated even a year after its publication, due to updates to the Hargreaves exceptions and orphan works provisions. The issue of the rapid development of copyright is clear across the board – although Tritton on European Intellectual Property13 was superseded during the course of the research by its updated edition,14 it too failed to keep pace.
In Ireland, which features heavily for comparative purposes in this thesis, Eva Nagle’s 2012 Intellectual Property Law15 emphasised the need for a ‘smart economy’.16 It is an authoritative and comprehensive text which outlines not only copyright, but other intellectual property rights in Ireland as at date of publication. However, in the three years from publication of the textbook
6 Mary Vitoria and others, The Laddie, Prescott and Vitoria: The Modern Law of Copyright and Designs (4th edn, LexisNexis 2011).
7 Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’ (2011).
8 HM Government, ‘The Government Response to the Hargreaves Review of Intellectual Property and Growth’ (2011).
9 Nicholas Caddick, Gillian Davies and Gwilym Harbottle, Copinger and Skone Jones on Copyright (16th edn, Sweet and Maxwell 2010).
10 Nicholas Caddick, Gillian Davies and Gwilym Harbottle, Copinger and Skone Jones on Copyright (2nd supp, 16th edn, Sweet and Maxwell 2013).
11 Lionel Bently and Brad Sherman, Intellectual Property Law (3rd edn, OUP 2009).
12 Lionel Bently and Brad Sherman, Intellectual Property Law (4th edn, OUP 2014).
13 Guy Tritton and others, Intellectual Property in Europe (3rd edn, Sweet and Maxwell 2007). 14 Guy Tritton and others, Intellectual Property in Europe (4th edn, Sweet and Maxwell 2014). 15 Eva Nagle, Intellectual Property Law (Round Hall 2012).
16 ibid, The Hon Justice Clark, Foreword.
Chapter 1: Literature Review
to the end of the research period, it had already been outmoded by the implementation of, inter alia, orphan works provisions,17 subject to the authority of the European Orphan Works Directive18 and the introduction of a legislative provision for blocking access to websites which enable copyright infringement.19 Thus, from this we can observe the rapidly advancing and changing face of copyright legislation in operation.
Textbook literature is an invaluable source of grounding and basic copyright provisions. However, given that this thesis focuses on the response to the digital shift, up-to-date information is essential to keep pace with the rapid changes in copyright, both in industry and through legislation. It is in response to this rapid pace of development that the majority of the literature discussed in the remainder of this review arises. The development of digital and ensuing flood of material available online brought copyright to the forefront of many minds, where previously it would have been a secondary concern. This increase in copyright content meant that copyright rules were analysed and assessed as to whether or not they stand up in a new digital age. The majority of literature relevant to this research project takes the form of reports, consultations, and articles. For each of the United Kingdom, Ireland, Australia, and the United States, there is a work recommending change within that particular territory. The publication of these reports, reviews, and articles has acted as a benchmark: the point from which the development of copyright may be marked.20
In the United Kingdom, the first fifteen years of the 21st century were a hotbed of IP research and development, mainly in the context of copyright. The UK government was active in the field of IPRs, first by creating the Commission on Intellectual Property Rights (IPR Commission) (which disbanded after publishing its report), secondly by commissioning the Gowers Review, and following this up with the Hargreaves Review, then finally continuing to commission and conduct research over the course of the following years.
17 European Union (Certain Permitted Uses of Orphan Works) Regulations 2014 SI 2014/490 (Ireland).
18 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works  OJ L299/5 had only been proposed at the time of publication, and thus logically the book cannot discuss the subsequent statutory instrument which implemented the Directive. It does mention that the Directive had been proposed, and puts forward the position of the Copyright Review Committee, that it was insufficiently broad to cover non-digitisable orphan works.
19 European Union (Copyright and Related Rights) Regulations 2012 SI 2012/59 (Ireland); these Regulations are discussed in Chapter 4.
20 These countries were selected on the basis of being both common-law countries and English- speaking, making for easiest comparison with the UK copyright regime.
Chapter 1: Literature Review
The IPR Commission was established in 2001 to consider the ways in which IPR regimes affect developing countries, and how UK regimes can be developed to allow for this.21 Its final report, ‘Integrating Intellectual Property Rights and Development Policy’22 was published in September 2002. The chapter considering copyright pointed out how the transition to digital could be a struggle for developing countries, and pointed out the crucial line which all digital copyright regimes must walk – ‘getting the right balance between protecting copyright and ensuring adequate access to knowledge and knowledge-based products.’23 This balance is a question which appears time and again throughout this thesis – copyright plays a dual role of encouragement and access, and balancing the two interests is a vital part of the copyright objective. The report also considered the questions of educational copyright pricing and suggested that developing countries adopt broad educational exceptions to copyright. It recommended that developed countries’ publishers review their pricing structures to allow access to knowledge in less-developed countries.24 Although the report did mention the concerns surrounding the possibility of digital piracy, it was a minor concern, as the whole-scale shift to digital had not yet truly occurred. This report did acknowledge the possibility of difficulties in the shift to digital, but at this early stage, it was not clear exactly how paradigm- changing the advent of digital would truly be. Nonetheless, this report was clear in its emphasis of the essential balance which copyright must find.
The ‘Gowers Review of Intellectual Property’,25 commissioned by Gordon Brown as Chancellor of the Exchequer in December 2005, was conducted by Andrew Gowers, former editor of the Financial Times. With a 12-month research period, its publication in December 2006 pre-dated the global economic crisis. Although the ten years from its commission to the end of this doctoral research period have seen distinct developments in the copyright framework, several of its recommendations have stood the test of time. The review concluded that the intellectual property regime in the UK was fundamentally strong, but it made 54 recommendations for changes to the UK IP regime. The recommendations were organised by theme, such as coherence and balance of instruments, and enforcement, and governance operations. The Gowers review also recommended a private copying exception, with no levy for format-shifting
21 Commission on Intellectual Property Rights, ‘Welcome’ (Website of the IP Commission) <http://www.iprcommission.org/home.html> accessed 14 December 2015.
22 Commission on Intellectual Property Rights, ‘Integrating Intellectual Property Rights and Development Policy’ (2002).
23 ibid 96.
24 ibid 102.
25 Andrew Gowers, ‘Gowers Review of Intellectual Property’ (2006).
Chapter 1: Literature Review
works published after the coming into effect of the exception.26 Given that the Gowers Review did not organise its recommendations by type of intellectual property right, it takes rather longer to whittle out the copyright-related recommendations. Nonetheless, we can see that besides the private copying recommendation, the Gowers Review also suggested, inter alia, an exception for libraries and archives for preservation purposes,27 an exception for parody, caricature or pastiche,28 and a provision for orphan works.29 A further recommendation was that the UK Patent Office change its name to the Intellectual Property Office, which did occur – the Patent Office is now generally known as the Intellectual Property Office or IPO. While the Gowers Review did make recommendations for change, it concluded that, in general terms, the IP regime in the UK was functioning well, and only minor amendments needed to be made in order to maintain a robust yet flexible copyright regime. Several of its recommendations were reiterated in the Hargreaves Review.
Nonetheless, the importance of the Gowers Review, and any governmental response to it, was eclipsed not long after by the review conducted by Professor Hargreaves in 2011, ‘Digital Opportunity: A Review of Intellectual Property and Growth’30 (known as the Hargreaves Review). Commissioned in late 2010, with a research period of six months, the call for evidence was answered by nearly three hundred interested parties, each attempting to answer the central question of the review – ‘what, if anything, should we do to change the UK’s IP system in the interests of promoting more rapid innovation and economic growth?’31
The Review’s final report was published in May 2011. The conclusions of the Review were varied, and considered more than just copyright, as was its remit. However, it gave extra consideration to copyright, pointing out that it specifically was falling behind. The overriding opinion of the Review was that the IP framework of the UK was outdated and in need of updating – that it was stifling economic growth and innovation:
26 Gowers (n 25) Recommendation 8. This was also recommended by the Hargreaves Review (n 7). It is discussed more extensively in Chapter 6.
27 Gowers (n 25) Recommendations 10a and 10b. These were also recommended by the Hargreaves Review (n 7).
28 Gowers (n 25) Recommendation 12. This was also recommended by the Hargreaves Review (n 7).
29 Gowers (n 25) Recommendations 13 and 14a. This was recommended by Hargreaves (n 7), as well as being mandated by the EU with its Orphan Works Directive (n 21).
30 Hargreaves (n 7).
31 Ian Hargreaves, ‘Call for Evidence: Independent Review of Intellectual Property and Growth’ (2010) 1 <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e.pdf> accessed 14 December 2015.
Chapter 1: Literature Review
Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed.32
The Review made ten recommendations for the development of the UK IP regime,33 organised by type of IP right. For this thesis, recommendations 3, 4, and 5, which concern copyright licensing, orphan works [works for which no rights holder can be found] and copyright limits will be considered.
Recommendation 3 of the review was the suggestion of the establishment of a digital copyright exchange, which would allow consumers to obtain the low-value, high-frequency licences which form the long tail of copyright licensing in the UK.34 This challenge was taken up by Richard Hooper and Dr Ros Lynch, who produced a two-part consultation, ‘Copyright licensing: fit for purpose for the digital age?’,35 beginning the process of establishing the Copyright Hub.36
Recommendation 4 suggested that the government take steps to legislate for the licensing of orphan works. This happened in 2013 and 2014, through the ERR Act37 and the establishment of the orphan works register38 and orphan works licensing scheme.39 These schemes allowed for the use of works for which the rights holder could not be found, with a provision for the government to reimburse a rights holder if they were subsequently identified.
Recommendation 5 suggested that the government deliver exceptions to copyright to the fullest extent permitted by EU Directives40 – in format shifting, parody, non-commercial research, and
32 Hargreaves (n 7) 1.
33 Hargreaves (n 7) 8-9.
34 Hargreaves (n 7) 8.
35 Richard Hooper, ‘Rights and Wrongs: Is Copyright Licensing Fit For Purpose in the Digital Age?’ (2012) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/dce-report- phase1.pdf> accessed 14 December 2015.
36 The Copyright Hub was discussed in the introduction, and is discussed again in Chapter 7.
37 Electronic and Regulatory Reform Act 2013.
38 IPO, ‘Orphan Works Register’ <https://www.orphanworkslicensing.service.gov.uk/view-register> accessed 21 December 2015.
39 See Aislinn O’Connell, ‘Copyright in Unpublished Works: 2039 and Orphan Works’ (2015) 39(121) Library and Information Research 41.
40 Hargreaves (n 7) 8.
Chapter 1: Literature Review
library archiving. It also suggested something new – a text and data mining exception.41 The Review also suggested that the new exceptions be protected from contractual override.42
Other recommendations in the Review suggested that the UK IP regime should be more flexible and adaptable to change, and that enforcement of IPRs be improved43 – at the time of publication, the DEA44 was supposed to come into effect the following year, thus the Review suggested careful monitoring of its effectiveness. It also suggested that monitoring of benchmarks should not wait until the implementation of the DEA enforcement regime, but rather should be started immediately – this was a fortuitous recommendation, as it led to five waves of research to consider, even before the DEA regime came to fruition, if indeed it ever does.45
The Hargreaves Review in general took a negative view of the state of IPRs in the UK.46 It was very definite in stating that the intellectual property arena was stifling innovation, profit and creativity.47 This was a stark contrast to the Gowers Review of only five years earlier, which was generally very positive about IP, even while making recommendations for change. While there is no doubt that there was a shift in terms of the global economy between 2006 and 2011,48 the complete difference in tone between the two consecutive British Reviews is still noteworthy. It is worth considering also that the tone of the Hargreaves Review was mirrored more closely in other Reviews and Reports than that of the Gowers Review – the idea that copyright was stifling innovation and preventing the creative industries from achieving true growth is one which was reflected across a variety of territories. Although the Hargreaves Review did not call for an entirely new Copyright Act, and thus was not as revolutionary as it might have been,49 it was unequivocal in its statement that copyright was preventing innovation in the UK, and needed to be reformed. This vehement statement of the unsuitability of copyright was backed up by
41 The Hargreaves exceptions are discussed in more detail in Chapter 6.
42 Hargreaves (n 7) 9.
43 Hargreaves (n 7) 8-9.
44 Digital Economy Act 2010. This Act laid out the framework for an enforcement regime which was designed to deter consumers from downloading copyright content illegally. It is more fully discussed in Chapter 3.
45 IPO, ‘UK consumers give boost to legal downloading and streaming for TV, films and music’ (Press Release, 22 July 2015).
46 ‘It is impossible to avoid the conclusion that there is something deeply and persistently amiss
in the way that policy towards IP issues in the UK is determined and/or administered’ Hargreaves Review (n 7) 93.
47 Hargreaves Review (n 7) 10.
48 Jean Imbs, ‘The First Global Recession in Decades’ (2010) 58 IMF Economic Review 327.
49 Simon Crompton, ‘Hargreaves Review Lacks Detail and Ambition’ (June 2011) Managing Intellectual Property 12.
Chapter 1: Literature Review
economic impact assessments which extolled the virtues of implementing new exceptions to copyright in order to improve innovation. However, these impact assessments have been criticised for their poor supporting evidence.50 In fact, a lack of supporting evidence is a criticism which has been levelled at the Hargreaves Review more than once.51 As well as this, the Review has been subject to criticism for missing the mark, with its recommendations described as being ‘likely to cause irreparable damage’.52 Hargreaves himself responded to the House of Commons committee on this.53 Further, the weakness and lack of evidence was acknowledged by IPO economist Benjamin Mitra-Kahn, who discussed the effect of ‘lobbynomics’ on policy-making, and outlined that government departments were very much in need of cooperation from the public with regard to economic research.54
In several chapters of this thesis, standards of evidence are referenced. Given the criticisms levelled at the Hargreaves Review and the difficulty of implementing the exceptions recommended by the Review (discussed further in Chapter 7), it is crucial that evidence in support of changes to legislation is solid and verifiable. In referring to standards of evidence, this thesis relies on the IPO’s own documentation, setting these out. The IPO’s ‘Guide to Evidence for Policy: Update 2013’55 sets out clear guidelines for what constitutes acceptable evidence for the IPO, including clear explanation, verifiability by a third party, and peer reviewing. It lays out common concerns for evidence, and gives solutions to those concerns, eg stating who has funded research and who sponsors them. To say that these standards should be met in policy-making is something of a redundancy, given that it is the IPO itself which set these standards of evidence. Throughout the thesis, good evidence is mentioned as being necessary in order to make changes. Thus, introducing new systems or exceptions, and equally abolishing old systems or exceptions, should be supported by solid evidence which meets the
50 Oxford Economics, ‘Consultation on Copyright: Comments on Economic Impacts’ (2011). This is discussed more fully in Chapter 5.
51 Andrew Sharples, ‘The Hargreaves Review: Destinations without Routes’ (eIP, 2011) <http://www.eip.com/uk/updates/article/the_hargreaves_review_destinations_without_routes> accessed 6 October 2015.
52 House of Commons Culture, Media and Sport Committee, ‘Supporting the Creative Economy’ (2013) <www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf> accessed 8 October 2015, 25.
53 Ian Hargreaves, ‘MPs Have Missed the Mark in Copyright Reform’, (The Conversation, 30 September 2013) <https://theconversation.com/mps-have-missed-the-mark-in-attacking-copyright-reform-18703> accessed 18 January 2016.
54 Mitra-Kahn (n 2).
55 IPO, ‘Guide to Evidence for Policy’ (2013) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/consult-2011- copyright-evidence.pdf> accessed 01 July 2016.
Chapter 1: Literature Review
standards laid out by the IPO in its own Evidence Policy Guide. Where evidence which meets the standard laid out in the IPO’s guidelines cannot be provided, then the status quo should be maintained.
As time passed since the publication of the Hargreaves Review and its conclusions, specifically with regard to copyright, were largely implemented, it continued to inform the governmental attitude towards copyright in the following years, and thus remains a seminal piece of literature in the field of copyright, together with those works which have followed on from it. These include Hooper and Lynch’s Digital Copyright Exchange Feasibility reports,56 which were substantially more positive, stating that copyright licensing was a functional system, if only there was a framework to support it – which is taking the form of the Digital Copyright Exchange57 – and the governmental response to Hargreaves, ‘Modernising Copyright’,58 which accepted wholesale the Hargreaves recommendations with regard to copyright. The Hargreaves assessment of copyright then maintained the thread of copyright modernisation and reform in the years following the publication of the Hargreaves Review.
Next door to the UK, in October 2013, the Copyright Review Committee in Ireland published its own work titled ‘Modernising Copyright’.59 This report was the product of a two-year consultation process, complete with recommendations to improve the contribution of copyright to innovation in Ireland. The Committee was established in 2011, at the same time as the publication of the Hargreaves Review, by Minister for Jobs, Enterprise and Innovation Richard Bruton, TD.60 It consisted of Dr Eoin O’Dell, lecturer in law at Trinity College Dublin, taking the position of Chair of the Committee; Professor Steve Hedley of University College Cork; and Patricia McGovern of DFMG Solicitors. The combination of both academic and professional perspectives on copyright gave the Committee a credence which added authority and balance to its report, both through the considerable experience of the panel and the consultation process
56 Richard Hooper and Ros Lynch, ‘Copyright Works: Streamlining copyright licensing for the digital age’ (2012) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/dce- report-phase2.pdf> accessed 21 December 2015;
Hooper (n 35).
57 The Digital Copyright Exchange is discussed in more detail in Chapter 7.
58 HM Government, ‘Modernising Copyright: A modern, robust and flexible framework’ (2011) <http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/response-2011- copyright-final.pdf> accessed 6 October 2015.
59 Copyright Review Committee, ‘Modernising Copyright: The Report of the Copyright Review Committee’ (2013).
60 Teachta Dála, or Member of the Irish Parliament.
Chapter 1: Literature Review
which sought public opinion at several junctures before the publication of the final report. The Hargreaves Review, by contrast, was conducted by a journalist, not a legal professional or academic, and had a very short consultation period. The difficulty of obtaining evidence from academics is highlighted in the Lobbynomics paper published by one of the IPO economists also, thus by having two academics on the Committee, there was an attempt to circumvent this difficulty.61 The report itself was not published until October of 2013, eighteen months after the Hargreaves Review. The extra eighteen months notwithstanding, the report’s recommendations were in many ways similar to those of the Hargreaves Review.
When considering similarities between the Hargreaves Review and Modernising Copyright, it is important to bear in mind that while the Hargreaves Review considered the IP spectrum as a whole, Modernising Copyright focused (as the title suggests) solely on copyright, and how it may best be improved to reduce barriers to innovation. Specifically, the remit of the Committee was to consider its Terms of Reference as follows:
- Examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation.
- Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation.
- Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.
- If it transpires that national copyright legislation requires to be amended but cannot be amended (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on copyright and related rights and other international obligations), make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation.62
61 Mitra-Kahn (n 2) 67.
62 Copyright Review Committee (n 58) 8.
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The consultation process for the final report was extensive. Beginning with a public meeting in July 2011, the Council also opened up for submissions, through email and via a website.63 On the foot of these and the Terms of Reference, the Council published a consultation paper64 which discussed the concerns put to them and possible solutions to those concerns. This paper was then used to inform further discussion, submissions, and public meetings before the eventual publication of the final report. Standing at a weighty 180 pages (as against Hargreaves’ 130), it is no small, unconsidered, nor hastily thrown together report. Its conclusions were the product of a lengthy process conducted by experts, with the assistance and submissions of interested parties, consumers, content owners, licensing organisations, and heritage institutions. The report made several recommendations which were largely similar to those made by Hargreaves, albeit with a less negative outlook on how functional the current copyright framework was.
The report’s recommendations included both specifically legislative and procedural changes, and also more organisational changes. On the organisational front, the report suggested the creation of a Copyright Council, an independent body which would administer the operation of copyright in Ireland, similar to the Press Council,65 which is government-supported but independently run. This Council would then have responsibility for education and promotion of copyright in Ireland and abroad, as well as the remit to establish alternative dispute resolution services, an Orphan Works Licensing system, and a DCE, similar to that of the UK; the report suggested that the UK DCE could be used as an example for an eventual Irish DCE, including interoperability between the two systems. Further, the report put forward a change of name for the Controller of Patents, Designs and Trade Marks (similar to the suggestion of the Gowers Review which resulted in the renaming of the IPO) to the Controller of Intellectual Property.
On the legislative side, the report recommended, among other things, introducing the full range of exceptions allowed by the 2001 InfoSoc Directive,66 as well as creating an innovation exception which would allow specifically transformative uses of copyright works. This is something which is available under the US fair use doctrine, which is much more broadly drawn than the narrow European fair dealing exceptions. Together with exceptions for linking67 and
63 Now defunct, it was located at <https://www.djei.ie/science/ipr/copyright_review_2011.htm>.
64 Copyright Review Committee, ‘Copyright and Innovation: A Consultation Paper’ (2012).
65 Irish Press Council – Office of the Press Ombudsman <http://www.presscouncil.ie/> accessed 14 December 2015.
66 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society  OJ L167/10 (InfoSoc Directive).
67 Copyright Review Committee, Report (n 58) 52.
Chapter 1: Literature Review
marshalling,68 the report suggested much which would allow the operation of a digital world to ensure the continuing creativity of the Irish economy. However, the implementation of such exceptions would have to be carefully considered, as the InfoSoc Directive provides an exhaustive list of exceptions, and thus linking, marshalling and innovation exceptions would have to be drawn so as to sit inside of those existing InfoSoc exceptions.69
The third point of the Terms of Reference for the Committee was to investigate the feasibility of a US-style fair use exception in an Irish/EU context. This was taken on gamely by the Committee, which recommended in its draft bill that a tightly-drawn fair use exception be included, but only as a last resort, after existing exceptions had already been exhausted. This suggested provision was informed not only by the US fair use system, but also Holland, India, Israel, the Philippines, and Singapore, as well as the terms of the Berne Three-Step Test.70 In the consultation paper, it proposed a wording for a fair use exception which drew on the US fair use system together with others around the world, including the Dutch system which, naturally, can work within the framework of the EU to which Ireland is also bound, and sought opinions on their draft section.71 Fair use would, the report then argued, enable Ireland to adapt to cloud computing and 3D printing, regardless of which way they developed, and would send a signal to innovators that Ireland was supportive of both their efforts, and of protecting the rights of copyright holders.72
Part of the reason why the Modernising Copyright report was so much longer than the Hargreaves Review was related to the fact that the second half of the report consisted of a draft bill with tightly drawn provisions for enacting all of the recommendations of the report. This draft bill would, it was hoped, then help to speed along the reform of copyright in Ireland in order to promote innovation, simplify licensing, make copyright less confusing, and move Irish copyright into the modern, digital age. Given that the report contained a full bill drafted by the Committee, under the direction of the Minister for Jobs, Enterprise and Innovation, one would have thought that it would then have been a natural follow on that the draft bill be tabled for debate in the Oireachtas.73 However, almost two years after the publication of the report, and
68 ibid 54.
69 InfoSoc Directive (n 68), Recital 32.
70 Copyright Review Committee, Consultation Paper (n 63) 111-123. 71 ibid 120-121.
72 Copyright Review Committee, Report (n 58) 93.
73 The Irish Parliament.
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despite the coverage given to it at the time,74 there was no sign of the wholesale copyright reform which the report recommended. It is given only passing mention in the occasional newspaper article,75 and still listed on the website of the Department of Jobs, Enterprise and Innovation,76 although with no indication whether or not any further action would be taken to implement the review. Of course, with the European Commission promising copyright reform before the end of 2015, the focus at the time was on a wider area than just simply Ireland.77
The European Union, too, was not silent on the issue of copyright reform. However, there was no single document from which one could take their analysis. Rather, there are the results of several proceedings which have considered copyright reform at a European level.
At its most basic, and most authoritative, of course, the European Union was the source of the Directives which administer copyright across the European Union. From the 2001 InfoSoc
74 Bruce Baer Arnold, ‘Eire’ (Barnold Law, 29 October 2013) <http://barnoldlaw.blogspot.co.uk/2013/10/eire.html> accessed 15 December 2015; Damien Mulley, ‘Link Without Fear – Copyright in Ireland in a Digital Age’ (Damien Mulley, 29 October 2013) <http://www.mulley.net/2013/10/29/link-without-fear-copyright-in-ireland-in-a-digital-age/> accessed 15 December 2015; Arthur Beesley, ‘Expert committee calls for establishment of copyright council’ (The Irish Times, 29 October 2013) <http://www.irishtimes.com/news/ireland/irish-news/expert-committee- calls-for-establishment-of-copyright-council-1.1576122> accessed 15 December 2015; Peter Flanagan, ‘Copyright law to embrace digital age’ (The Irish Independent, 29 October 2013) <http://www.independent.ie/irish-news/copyright-law-to-embrace-digital-age-29707320.html> accessed 15 December 2015; Conn Ó Muinnecháin, ‘Copyright Report Proposes Major Overhaul of Irish Law’ (Technology.ie, 29 October 2013) <http://technology.ie/copyright-report-proposes-major-overhaul- irish-law/> accessed 15 December 2015; Jeremy Phillips, ‘Modernising Copyright: The Irish Plan’ (The 1709 Blog, 29 October 2013) <http://the1709blog.blogspot.ie/2013/10/modernising-copyright-irish- plan.html> accessed 15 December 2015; Rónán Duffy, ‘Proposals on new online copyright laws presented to Government’ (TheJournal, 29 October 2013) <http://www.thejournal.ie/online-copyright-1150856- Oct2013/> accessed 15 December 2015; Sources taken from Eoin O’Dell, ‘Modernising Copyright: The Report of the Copyright Review Committee #CRC13’ (Cearta.ie, 29 October 2013) <http://www.cearta.ie/2013/10/modernising-copyright-the-report-of-the-copyright-review-committee/> accessed 15 December 2015.
75 Karlin Lillington, ‘Dancing Baby can lead the way on Irish Copyright law’ (The Irish Times, 17 September 2015) <http://www.irishtimes.com/business/technology/dancing-baby-can-lead-the-way-on- irish-copyright-law-1.2354251> accessed 17 November 2015.
76 Department of Jobs, Enterprise and Innovation, ‘Copyright’ (Department of Jobs, Enterprise and Innovation) <https://www.djei.ie/en/What-We-Do/Research-Innovation/Intellectual- Property/Copyright/> accessed 24 November 2015.
77 Eoin O’Dell, ‘The present of copyright – where are we now with copyright reform?’ (Cearta.ie, 23 November 2015) <http://www.cearta.ie/2015/11/the-present-of-copyright-where-are-we-now-with- copyright-reform/> accessed 25 November 2015.
Chapter 1: Literature Review
Directive78 to the 2012 Orphan Works Directive,79 with all the copyright-related Directives which were issued in between, there was much authoritative literature which stemmed from Europe and concerned copyright. However, this literature review will focus specifically on that which considered copyright reform as a priority in the years 2010-2015.
From 2011 to 2013, the European Commission conducted its Licences for Europe initiative, which aimed to simplify licensing at a European level through the use of ten pledges to ease the difficulty of licensing. These were issued in November of 2013.80 Licences for Europe was an initiative led by three European Commissioners, with the aim being that it would ‘seek to deliver rapid progress in bringing content online through practical industry-led solutions.’81 Nine of the ten82 pledges made by Licences for Europe were backed by a statement from the relevant stakeholders, outlining a plan for how they would implement these promises.83 These pledges were another example of different industries working together to overcome the issues that the digital shift presented, in order to both remain profitable, and also to ensure that consumers and customers could access content in the way which had become expected with the advent of digital life.
Licences for Europe was not the only initiative concerning copyright reform in Europe at the time. In 2014, a Directive was voted on84 which concerned licensing – or rather, those that administer the licences. MEPs voted 640-18 in favour of adopting the bill, which allowed music
78 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society  OJ L167/10.
79 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works  OJ L299/5.
80 Licences for Europe, ‘Ten pledges to bring more content online’ (2013) <http://ec.europa.eu/internal_market/copyright/docs/licences-for-europe/131113_ten-pledges_en.pdf> accessed 21 December 2015. The text of the pledges is also available in the introduction.
81 Licences for Europe, ‘About’ (Licences for Europe) <http://ec.europa.eu/licences-for-europe- dialogue/en> accessed 21 December 2015.
82 Promise Eight, Freeing up TV footage archives through digitisation: discussions between public broadcasters and rightholders, has no statement. As yet, the author has not managed to find an explanation for this.
83 The pledges, the statements, and the organisations which have been party to those statements, are all available at Licences for Europe, ‘Final Plenary Meeting’ (Licences for Europe) <http://ec.europa.eu/licences-for-europe-dialogue/en/content/final-plenary-meeting> accessed 21 December 2015.
84 See European Parliament, ‘Texts adopted, 4 February 2014’ (European Parliament) <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014- 0056&language=EN&ring=A7-2013-0281> accessed 21 December 2015.
Chapter 1: Literature Review
providers to buy licences allowing them to offer music across the entire EU.85 This simplified the case as it previously stood, which was that organisations managing authors’ rights had to obtain individual licences on a country-by-country basis.86 The Directive received some criticism, especially with regard to the lack of distinction between categories of rights holders and the Commission’s sectorial approach to cross-border licensing.87 Nonetheless, it met with wide approval in the European Parliament, and obtained final sign off from EU governments within a few weeks. The Directive was implemented by February 2014.88 Although the Directive applied only to musical works, the precedent had been set to allow greater cross-border flexibility with regard to copyright works. The Directive itself was expected to come into force by 2016,89 but actually did so in 2015, with PRS for Music, STIM, and GEMA90 coming together to create a Pan-European Music Licensing Hub.91
The question of cross-border licensing was also considered in the EU Commission’s Public Consultation on the Review of Copyright Rules,92 specifically in the very first question: Why is it not possible to access many online content services from anywhere in Europe?93 The consultation was launched in December 2013, with an original closing date of February 2014, but this was extended by a month until March. Before the publication of any official responses to
85 Ben Challis, ‘The Owl, the CopyKat – and the Tiger: All at (C) in a beautiful EC boat’ (The 1709 Blog, 6 February 2014) <http://the1709blog.blogspot.co.uk/2014/02/the-owl-copykat-and-tiger.html> accessed 21 December 2015.
86 Benjamin Fox, ‘MEPs back pan-EU music licence deal’ (euobserver, 5 February 2014) <http://euobserver.com/news/123011> accessed 21 December 2015.
87 Eleonora Rosati, ‘EU Parliament adopts Collective Rights Management Directive’ (The IPKat, 6 February 2014) <http://ipkitten.blogspot.co.uk/2014/02/eu-parliament-adopts-collective-rights.html> accessed 21 December 2015.
88 Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market  OJ L84/72.
89 Fox (n 85).
90 PRS for Music, STIM, and GEMA are British, Swedish, and German CMOs.
91 Tom Pakinkis, ‘PRS, STIM and GEMA launch licensing hub for Europe’ (MusicWeek, 20 July 2015) <http://www.musicweek.com/news/read/prs-stim-and-gema-launch-licensing-hub-for-europe/062333> accessed 21 December 2015; Coral Williamson, ‘PRS for Music, STIM, GEMA combine for pan-European hub’ (MusicWeek, 16 June 2015) <http://www.musicweek.com/news/read/prs-for-music-stim-gema- combine/062067> accessed 21 December 2015.
92 Commission, ‘Public Consultation on the review of the EU copyright rules’ (2013) <http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm> accessed 13 January 2016.
93 ibid 7.
Chapter 1: Literature Review
the consultation, an Impact Assessment94 and Copyright White Paper95 were leaked, which detailed the possible impact of changes to copyright, as well as the ambitions of the Commission as regards copyright. The Commission released a report detailing the responses to the consultation.96 However, due to the summer break of Parliament, together with the change of Parliament in 2014, no response was forthcoming, and the comprehensive consultation, which considered such issues as linking, browsing, e-lending, mass digitisation, TDM, term of protection, reselling digital files, and the possibility of establishing a single EU Copyright Title,97 was abandoned. However, some of the questions were simultaneously considered, such as hyperlinking, on which a decision was issued by the CJEU on February 13 2014,98 and TDM, which was also the focus of a working group in the Licences for Europe process.99
In the months leading up to August 2015, the end of the research period, it became abundantly clear that copyright was a priority for the European Parliament and Commission, as well as the Court of Justice. Copyright was also one of the pillars of the European Digital Single Market Strategy. As this is discussed further in Chapter 7, it will suffice here to state that Europe was, at the same time as the UK and other territories discussed here, focused on copyright as an area ripe for updating and reform, in order to adapt to digital.
94 Commission, ‘Draft Impact Assessment on the modernisation of the EU copyright acquis’ (2014) <http://statewatch.org/news/2014/may/eu-draft-impact-assessment-copyright-acquis.pdf> accessed 13 January 2016.
95 Commission, ‘A Copyright Policy for Creativity and Innovation in the European Union’ (2014) (Draft) (White Paper) <https://dropbox.com/s/0xcflgrav01tqlb/White%20Paper%20%28internal%20draft%29%20%281%29.P DF> accessed 13 January 2016.
96 Commission, ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules’ (2014) <http://ec.europa.eu/internal_market/consultations/2013/copyright- rules/docs/contributions/consultation-report_en.pdf> accessed 21 December 2015.
97 The Commission did not cease to work on copyright development, publishing a proposal for a Regulation on content portability and a Communication entitled ‘towards a modern, more European Copyright framework’ in December 2015. Eleonora Rosati, ‘BREAKING: EU Commission unveils next steps for copyright reform, including draft content portability regulation’ (The IPKat, 9 December 2015) <http://ipkitten.blogspot.co.uk/2015/12/breaking-eu-commission-unveils-next.html> accessed 14 December 2015.
98 Svensson and others (Case C-466/12), which stated that linking to an existing work online is not in and of itself an infringement, but making available to a new public (by, for example, working around a paywall) would be infringing. For more on this, see Eleonora Rosati, ‘Early thoughts on Svensson: communication/making available, “new” public, altering the scope of exclusive rights’ (The IPKat, 13 February 2014) <http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html> accessed 21 December 2015.
99 Text and Data Mining Working Group (Working Group 4). See Licences for Europe, ‘Text and Data Mining Working Group (WG4)’ (2013) <http://ec.europa.eu/licences-for-europe- dialogue/en/content/text-and-data-mining-working-group-wg4> accessed 21 December 2015.
Chapter 1: Literature Review
Similar to the Irish copyright reform consultation, a multi-year copyright consultation was conducted by the Australian Law Reform Commission (ALRC). After being given a reference in 2011, the ALRC produced firstly an issues paper in August 2012,100 followed by a discussion paper101 in May of 2013, which was open for comment until the end of July of that year, before it presented its final report to the Australian government in November 2013. The report was then published in February of 2014, after it was tabled in the Australian parliament.102 The ALRC Inquiry was headed by Professor Jill McKeough, who took leave from her position as Dean of Law at the University of Technology, Sydney, to join the ALRC for the duration of the inquiry.103 The ALRC Report, similar to the Irish and British offerings, contained a multitude of recommendations for copyright reform, and similarly to the Irish offering, suggested that the Australian government expand the current fair dealing exceptions to copyright into a full fair use provision, which would be fairer, more transparent, more comprehensible and better able to withstand the test of time than the then-current copyright provisions in Australia.104 It made recommendations with regard to orphan works105 and specific exceptions to copyright which were very similar to those recommended by the Hargreaves Review,106 including quotation,107 private use,108 TDM,109 libraries and archives,110 education,111 and disability access.112 However, the report maintained that any and all exceptions should be superseded by a fair use exception, which would eliminate confusion and uncertainty.113 The report pointed to the largely successful operation of fair use in the United States in the previous 35 years as an example which could be followed in Australia. This is not necessarily the most luminous example, however, as fair use
100 Australian Law Reform Commission, ‘Copyright and the Digital Economy’ (2012) ALRC Issues Paper 42.
101 Australian Law Reform Commission, ‘Copyright and the Digital Economy’ (2013) ALRC Discussion Paper 79.
102 Australian Law Reform Commission, ‘Copyright and the Digital Economy: Final Report’ (2013) ALRC Report 122 (ALRC Final Report).
103 Australian Law Reform Commission, ‘Copyright and the digital economy’ (Australian Law Reform Commission, 30 May 2012) <http://www.alrc.gov.au/inquiries/copyright-and-digital-economy> accessed 14 December 2015.
104 ALRC Final Report (n 101) 123. 105 ibid 289.
106 Hargreaves Review (n 7) 41.
107 ALRC Final Report (n 101) 209. 108 ibid 227.
109 ibid 249. 110 ibid 267. 111 ibid 311. 112 ibid 355. 113 ibid 160.
Chapter 1: Literature Review
in the United States is often a complex, dense and impenetrable body of decisions which are difficult to extract guidance from – one need only look at the controversy surrounding the late 2013 Google Books decision,114 an appeal against which was still pending more than ten years after original date of filing, to see how contentious fair use can be.
The Australian Report was a more limited consultation than the Irish and UK reviews discussed above – the ALRC was required to abstain from offering issues on the topics of technical protection measures (TPMs), safe harbours, peer to peer distribution, and print disabled access to copyright works, as these issues were all the subject of separate processes.115 In essence, the ALRC inquiry was limited to considering the Australian copyright licensing process, exceptions relating to it, and whether these were adequate in the digital age. Finally, it was asked whether new exceptions should be introduced in order to modernise the Australian copyright licensing regime. As mentioned above, the ultimate conclusion of the ALRC was that the best option it could offer would be a US-style fair use exception, which would remove questions of future- proofing legislation, and make it simpler to adjudicate copyright debates in the future.116 Failing this, it recommended the introduction of a range of fair dealing exceptions, for:
(a) research or study; (b) criticism or review; (c) parody or satire; (d) reporting news;
(e) professional advice;
(g) non-commercial private use; (h) incidental or technical use; (i) library or archive use;
(j) education; and
114 The Authors Guild Inc, and others v Google, Inc 954 F Supp 2d 282 (SDNY 2013). 115 ALRC Final Report (n 101) 30.
116 ibid 21.
Chapter 1: Literature Review
(k) access for people with disability.117
These exceptions were broadly similar to those suggested by the Hargreaves review in the UK and the Irish report Modernising Copyright – they were, according to the words of the ALRC final report, the sorts of uses which would:
- serve an important public purpose;
- stimulate the creation of new works and the use of existing works fornew purposes; and
- not harm rights holders’ markets—ensuring exceptions do not undermine the crucial incentive to create and publish copyright material.118Further, the ALRC report also recommended that legislation be amended to specifically remove the possibility of contracting out of these exceptions – again, similarly to the UK provisions.119 This would be a logical step, as an exception which can be contracted around is one which has little to no effect.
With regard to implementation, although there was some change to copyright in Australia in 2015, it was not the implementation of fair use. Rather, the power to force ISPs to block infringing sites was introduced, and will be discussed in chapter 4. There was no movement to implement the recommendations of the ALRC in 2015, a fact which mirrors the situation in Ireland. 120
Although the UK, Australia, and Ireland are very different territories in terms of location, the parallel recommendations in their reports informed each other – each subsequent review has referenced that which came before it, and their recommendations could be drawn against each other quite easily. We will now move on to consider the United States copyright reform consultation process, which began slightly later, but nonetheless was similarly framed.
117 ALRC Final Report (n 101) Recommendation 6-1.
118 ibid 27.
119 Hargreaves Review (n 7) 8.
120 Simon Collinson, ‘Explaining Australia’s Fair Use Publishing Conundrum’ (Publishing Perspectives, 26 February 2014) <http://publishingperspectives.com/2014/02/explaining-australias-fair-use- publishing-conundrum> accessed 12 January 2016.
Chapter 1: Literature Review
While the Australian and Irish Copyright Review papers were published in 2013, meaning that with a two-year consultation period, they began in 2011, the beginning of the American copyright review was almost concurrent with the conclusion of the Irish and Australian. In 2013, the US Register for Copyrights and head of the Copyright Office, Maria Pallante, called for ‘The Next Great Copyright Act’,121 a reworking of the Digital Millennium Copyright Act (DMCA)122 to encompass the changes which the previous fifteen years had brought to the content creation and distribution arena. She spoke of the need for an efficient way of dealing with orphan works and asked Congress to consider changing the length of the copyright term.123 She also emphasised the need to consider the effect of the growth and development of the internet and legislate appropriately to deal with this.124 She did not, however, discuss any change to the current fair use provisions – given that the US was held up as a shining example by Australia and Ireland’s reform reviews, perhaps this is unsurprising.
This precipitated a two-year music copyright consultation process in the US which consisted of no fewer than twenty copyright hearings before Congress, covering a wide variety of topics relating to copyright – this time including, inter alia, the scope of copyright protection, fair use, the doctrine of first sale and whether there was a digital first sale right, the role of technology and copyright in America, the role of the copyright office, and disability access to copyright materials.125 The twenty hearings in before Congress were varied and in-depth on a number of copyright modernisation topics. Maria Pallante was the sole witness at both the first (where she delivered a similar set of views to those mentioned above, in a hearing titled ‘The Register’s Call for Updates to US Copyright Law’126) and the last of these (‘The Register’s Perspective on Copyright Review’127), giving it a sense of symmetry. Among other things, the US consultation process resulted in greater calls for independence from the Copyright Office, wanting to move out from under the umbrella of the library of Congress, and the publication in February 2015 of
121 Maria Pallante, ‘The Next Great Copyright Act’ (2013) 36(3) Columbia Journal of Law & the Arts 315. Published in journal article form, the work is an extended version of a speech given at the Columbia Law School in March of 2013 – the Twenty-Sixth Horace S Manges Lecture.
122 Digital Millennium Copyright Act 1998, Pub L 105-304.
123 Pallante, ‘The Next Great Copyright Act’ (n 119) 336-7.
124 ibid 327-9.
125 The full list of hearings, together with links to their proceedings, can be found online: United States Copyright Office, ‘Congressional Hearings on the Review of the Copyright Law’ (Copyright.gov) <http://copyright.gov/laws/hearings/> accessed 9 October 2015.
126 Maria Pallante, ‘The Register’s Call for Updates to US Copyright law’ (March 20, 2013) <http://copyright.gov/regstat/2013/regstat03202013.html> accessed 9 October 2015.
127 Maria Pallante, ‘The Register’s Perspective on Copyright Review’ (April 29, 2015) <http://copyright.gov/laws/testimonies/042915-testimony-pallante.pdf> accessed 9 October 2015.
Chapter 1: Literature Review
a report on the music licensing system in the US.128 This report pointed out something which had been mentioned by the Irish and UK publications also – the difficulty of licensing in the digital age. Although the report, and indeed the consultation in general, related specifically to music licensing, its recommendations could easily be extended to other areas of copyright works. The American music industry was at the time the largest in the world, and thus an area of great concern for the US Congress.129 The two year American consultation process ended in April of 2015, leaving the onus to act on Congress.130 Although there was no helpful single document produced summarising the views and recommendations for change of the entire consultation process, the perspective of the Register for Copyright, as delivered in the final hearing of the system, could be viewed as a summation of the process in general. This final hearing testimony pointed out once more the need for immediate change to the copyright system in the US – ‘we’re already torturing our music community on music issues’.131 The February 2015 licensing report stated the need for more efficient licensing processes, while still emphasising the need for music creators to be fairly compensated for their efforts.132 Building on this, the final hearing documentation stated the need for eight separate actions which could be implemented without the need for foundational research first:
- overhauling the music licensing provisions of the Copyright Act;
- codifying a resale royalty act for visual art;
- creating a tribunal for small copyright claims;
- enacting felony streaming provisions;
- updating the outdated exceptions that libraries, archives, and museums use;
- creating a framework to use orphan works;
128 Maria Pallante, ‘Copyright and the Music Marketplace: a report of the register of copyrights’ (2015) <http://copyright.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf> accessed 8 October 2015.
129 IFPI, ‘Recording Industry in Numbers’ (2014).
130 Glenn Peoples, ‘Copyright Review Concludes with Final Hearing, Ball Passes to Congress’ (Billboard, 29 April 2015) <http://www.billboard.com/articles/business/6546372/copyright-review-concludes-with- final-hearing-ball-passes-to-congress> accessed 8 October 2015.
131 Pallante, ‘The Register’s Perspective on Copyright Review’ (n 125) 76.
132 Pallante, ‘Copyright and the Music Marketplace’ (n 126) 1.
Chapter 1: Literature Review
7. updating the exceptions for persons who are blind or visually impaired; and,
8. shifting the regulatory presumption in the section 1201 rulemaking133
As with the other reports, the issues of simpler licensing, small claims, disability exceptions and heritage institutions loomed large – it seems that there is a consensus between the literature around the world with regard to the need for licensing simplification, especially for low value, high volume transactions, as well as a range of exceptions for heritage institutions and the use of orphan works. Register Pallante’s testimony in the final hearing focused on the need for updating provisions which had become outdated, due to the passage of time and the development of new methods of sharing, licensing, and using creative works. It is worth noting also that, after extensive study, the office recommended that the fair use doctrine and making available right should not be updated or changed, as they were functioning well in their current states. This is unsurprising, given that the American fair use doctrine, as mentioned above, was used as the example from which other territories developed their own suggestions for such a doctrine. The collection of literature which comprised the American copyright review process over the two years from 2013-15 was more fragmented than those already discussed, but nonetheless it, too, stated the urgent need for updating copyright rules in the face of a new, modern, digital age, in order to maintain the operability of copyright, encourage content creators, and improve innovation in its home territory. As of August 2015, any action on implementation had yet to happen.134 This is not so notable as with the Australian and Irish reports, as the period of time between the conclusion of the review process and research period was much shorter.
The literature around copyright in 2010-2015 was extensive – much of it discussing the need for change. There was a general consensus between several different territories that there was a need to improve licensing procedures, and adapt exceptions to copyright, specifically for research (including text and data mining), disability adaptations, format shifting, and cultural and heritage institutions. Jurisdictions around the world saw fit to legislate,135 or commission
133 Pallante, ‘The Register’s Perspective on Copyright Review’ (n 125) 4-5.
134 The conclusion of the Trans-Pacific Partnership (TPP), a multilateral trade agreement, will also have implications for copyright trade and enforcement. TPP negotiations were continuing past the cut-off date of this thesis, and thus will be a topic for consideration in further research.
135 Copyright Modernization Act 2012 (Canada); Copyright (Amendment) Act 2012 (India); Achtes Gesetz zur Änderung des Urheberrechtsgesetzes Vom 7 Mai 2013 (Germany).
Chapter 1: Literature Review
enquiries considering how to legislate, for the changes which the digital shift brought. The author has found, however, that in considering the literature, there was little that considered the positives of the current copyright system. Reports and reviews spoke of the stifling effect of copyright and advocate for immediate reform, pointing out the restrictive effect of copyright on innovation, which is the lifeblood of the digital age.136 Copyright, the grey literature proclaimed, was what was standing between the next Google and profits which would benefit the entire world. 137
Thus, through this literature review, it is clear that there is a niche in which we can position this research. It considers the reports and grey literature which viewed copyright as a barrier to innovation and then takes an open-minded look at what can be achieved within the current framework of copyright. It is not a blind acceptance of copyright as perfect – indeed, to deny the almost universal agreement that exceptions to copyright were needed would be redundant, but it aims for balance in investigating the impact of the digital shift on copyright. Furthermore, it investigates how adaptation is possible within the copyright framework in order to successfully take advantage of the opportunities which digital opened up – both for legacy larger copyright businesses and for those new, innovative start-ups which rely on copyright.
Thus, perhaps the need for reform is not as legislatively pressing as one may assume. In this project, the author will fill a gap in the literature by pointing out the function which copyright performs – Pricewaterhouse Cooper, in 2014, estimated the Australian copyright industries to be worth over Aus$100 billion, and around 7.1% of GDP.138 The UK in 2013 was ranked first in the world in the Global Intellectual Property Index – both for IP as a whole and for copyright as an individual intellectual property right.139 It was estimated in 2014 that the creative industries in the UK were worth £8 million per hour (an annual value of £71.4 billion) to the UK economy – 5.2% of GDP.140 Copyright and copyright industries made a measurable, substantial contribution to the economies of the countries they operated in – in this project the author will quantify what the value of the UK copyright industries was in 2010-2012, how copyright adapted to the digital shift, and how, or whether, the copyright regime of the UK needs to be overhauled in 2016 and beyond to allow this profitability to continue. Furthermore, this thesis will point out the
136 Hargreaves Review (n 7) 41.
137 Hargreaves Review (n 7) 44.
138 Pricewaterhouse Cooper, ‘The Economic Contribution of Australia’s Copyright Industries 2002 – 2014’ (2015) 3.
139 Taylor Wessing, ‘Global Intellectual Property Index 4 Report’ (2013).
140 Department for Culture, Media and Sport, ‘Creative Industries worth “8 million an hour to UK economy”’ (Press Release, 14 January 2014).
Chapter 1: Literature Review
inherent adaptability of copyright to change, considering how it has grown and developed in its three hundred year history, from the first great copyright Act, the Statute of Anne in 1709. This project considers the ways in which copyright enforcement has been attempted, through graduated response, notice and takedown, and website blocking injunctions and how these enforcement measures have developed. It will consider whether there was a need for wholesale copyright reform in 2015, or whether minor changes to future-proof copyright were possible. The specific details of a major copyright reform are deliberately not laid out here, as there are many forms it could take, from a harmonisation of European copyright law to abolishing copyright entirely, running the gamut of changes such as introducing a US-style fair use exception, turning copyright into a remuneration right, and shortening the duration of copyright. It does not class codification of national law or the introduction of limited exceptions to copyright as drastic change or overhaul of copyright. The deliberate non-inclusion of the specific form that major copyright form should or could take is due to the difficulty and huge scope of developing such reform. Developing such reform would be the provenance of further research. The aim of this thesis is to consider whether the grey literature published and accepted (and in some cases then ignored)141 around the world is indeed correct, and there is an urgent, pressing need to reform copyright as soon as possible, or whether it is possible, with cooperation and some small changes, to forge a more functional and modern copyright system which enables innovation through interaction between interested parties, and a little patience as the process of adaptation develops. Specifically, this thesis points out some of the ways in which copyright can be utilised, through cooperative, voluntary, industry-funded or government-backed initiatives to better encourage a vibrant, creative and innovative digital economy which continues to enable consumers to make use of the copyright materials which surround them, but also allow creators to be sufficiently remunerated for their works. As ever, there is a delicate balance to be found between the interests of parties involved in copyright works,142 but as Charles Clark advocated, ‘the answer to the machine is in the machine’143 – the answer to the quandary of copyright parties can be found within those copyright parties, through their cooperation and interaction, and the use of voluntary initiatives combined with some legislative reform.
141 See the section entitled ‘Ireland’ in this chapter.
142 Commission on Intellectual Property Rights (n 22) 18.
143 Charles Clark, “The Answer to the Machine is in the Machine”: And Other Collected Writings (Institutt for Rettsinformatikk 2005).