1709 Blog: for all the copyright community

Thursday, 27 March 2014

Here come some new Exceptions

As Eleonora reported earlier over on the IPKat,
the Government has finally issued an extensive pile of paperwork dealing with its implementation of the new Exceptions recommended by the Hargreaves report.

There are to be five separate exceptions, dealing with:
  • what used to be called private copying and what we must now learn to call Personal Copying for Private Use;
  • Quotation and Parody;
  • Public Administration;
  • Research, Education, Libraries and Archives; and
  • Disabilities.
While the process that has led to these drafts has been long and convoluted, at least (from a purely legal perspective) the drafting has been much improved since the initial attempts were put out for consultation in July of last year.

To take personal copying as an example, the new Regulations have made clear that the personal copying right does not extend to copies that have been made pursuant to other exceptions, such as time shifting; they have also made clear that the exception only applies to (purchased or gifted) copies that can be kept forever and does not apply to streams or to rented or other temporary copies - including time limited downloads.   The right is backdated so that a copy made before implementation which would have been permitted if it was made post-implementation becomes lawful.

However, other controversial measures remain in place - the much-debated "contractual over-ride" and the Secretary of State's powers to intervene to protect user rights where technological measures (such as DRM) are being used to prevent permitted personal copying.  The latter power is now at least modelled on the existing powers to intervene - so the delightfully numbered section 296ZEA is, at least in form, very similar to the existing section 296ZE which applies where technological measures prevent other permitted acts.  There is also a recognition that the Secretary of State needs to take account of what rights-holders are offering voluntarily in terms of copiability of DRM protected works.

Finally - there is still no provision of fair compensation for private copying - which appears to be a requirement of the Directive.

Alongside the draft laws, the IPO has issued an Explanatory Memorandum, an explanation of the outcome of last Summer's consultation, new Impact Assessments - and a set of guidelines designed to explain the new laws to a range of different interest groups.   All of this is available here.  Once the 1709ers have had a chance to read the other exceptions, further coverage may follow.

The Regulations are set to come into force on 1 June, having been approved by a vote in both Houses of Parliament after Easter.

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