Wednesday, 29 March 2017

The Future of Copyright post Brexit

On the day that the UK begins the process of leaving the EU, it is an appropriate moment to take a look at where copyright in the UK might go from here. Of course, much will depend on what sort of overall trade deal is finally agreed between the UK and the EU, but given that copyright is not a core competence of the EU, I suggest this provides the UK with an opportunity to pick out the best bits of the current European acquis but at the same time to discard some of the more bizarre developments, whilst obviously remaining compliant with our wider obligations under treaties such as the WIPO copyright treaty (WCT),  the WIPO phonograms treaty, TRIPS etc. There's a lot to unpick so apologies in advance for the length of this posting

Ideally this affords the UK the opportunity for a new Copyright Act, to replace the Frankenstein monster which the 1988 CDPA has become. But given the fact that Parliamentary time is going to be in short supply over the next few years because of the adjustment to the statutory law in all areas, that is probably not going to be a high priority. At best we might hope to reduce the number of lacunae and other features which impede development of the creative industries so that they can become even more competitive in the world marketplace, whilst not so radically different to the rest of the EU that it makes trade with the remaining member states problematic. But of course we must ensure that the relationship between the rights of creators and the rights of the public remains in balance. We also need to distinguish between those parts of the EU law which have been introduced to UK law by statutory instrument alone, and those which have been fully incorporated into the CDPA itself. The former can, in the main, be revoked by ministerial authority but they can't be amended by ministers as the authority for them often rests on section 2(2) of the European Communities Act 1972 which is likely to be an early casualty in the cull of legislation. As already mentioned, I don't think Parliamentary time will be available to do much to the CDPA itself, and thus it is reasonable to assume its provisions will remain unaltered at least in the medium term.

Here is my list of suggestions for areas which might need to be examined in the shorter term, grouped loosely under the headings of the main EU Directives:

Copyright term. There seems little point in trying to revert to the previous term of lifetime plus fifty years, which though arguably a desirable step in the right direction for copyright generally, would cause immense difficulties in trading with partners like the USA, who are hell-bent on forcing other nations to come up to the plus 70 years standard (vide TPP and the changes to Canadian copyright law). But we do have the opportunity to tidy up the situation regarding previously unpublished works which currently will not become free of copyright until 2039, even though in some cases the authors died in the nineteenth century or earlier. And I would advocate removing the little-understood and unnecessary provision of the original Article 10 of the Copyright Term Directive (03/98/EEC). This was the principal cause of many works (particularly photographs) having their copyright revived merely because some EU member states previously had a term of protection which exceeded the lifetime plus 70 years rule. The copyright term for cinematic and audiovisual works, sound recordings and broadcasts should remain as they currently are, which obviously includes the new term for sound recordings (phonograms) of 70 years from the date of fixation to accord with the afore-mentioned Phonograms Treaty.  However, this might be the opportunity, under the ambit of wider rationalisation of copyright, to look again at some other types of work such as computer programs and databases - more on this in a moment. Articles 4 and 5 of the Term Directive introduced fixed length terms for, respectively, previously unpublished works (the so-called and confusing Publication Right), and for certain scientific publications.  Since the latter was not adopted by the UK, we need only consider the former. Such fixed terms are anomalous when we already have the lifetime of the author plus 70 years as a simple yardstick. Clearly the purpose of this provision was to encourage the publication of such works by giving the publisher a monopoly right, but does this really serve the public good? The recitals provide absolutely no justification for introducing this extra right. I suggest that if a work is in the public domain by virtue of the lifetime + 70 rule, then all that a publisher of a previously unpublished work should be entitled to is the existing protection for the typographical layout of his published edition under section 8 CDPA. If other publishers also wish to compete in the same market place, by publishing the same work, then the public benefits. We have many different editions of Shakespeare's plays or Sherlock Holmes stories by different publishers, so why not the same economic playing field for a previously unpublished Shakespeare sonnet or the private letters of Arthur Conan Doyle?  Let's face it, the impediment to publishing an unpublished work is less about the financial incentive and all to do with who controls access to the original work itself. 

Article 6, concerning the protection of photographs, is largely pointless and since it has not been directly incorporated into UK law, it can be safely jettisoned. 

Chronologically we next come to the InfoSoc directive. Before moving to the most problematic part - Article 5 - we need to take a look at Articles 2 to 4 in the light of our obligations under the WCT, and to a lesser extent, Berne.  The WCT introduced the specific concepts of the Distribution Right and the Right of Communication to the Public (including the making available concept) but did so in outline terms only. The InfoSoc Directive expanded on these outlines and added the Reproduction Right. While there is nothing contentious about Articles 2 - 4 as statements of the principal components of copyright, they do blend together the traditional forms of literary, musical, dramatic and artistic works along with performers rights, films, sound recordings and broadcasts in a way which is, in my view, unhelpful. The CDPA clearly delineates copyright from performers' rights, and also treats broadcasts separately. If the CDPA is to remain in its current form, the UK should abandon the EU definitions of the three rights as given in Articles 2 to 4 and rely on the CDPA definitions, which do not conflict with the WCT.

Article 5 has been subject to so many referrals to the CJEU that even the most europhile of commentators should admit, it is poorly expressed. The UK has now adopted into the CDPA the majority of the exceptions provided for in Article 5 and so that is where we stand. However the case-law clarifying Article 5 emanating from the CJEU is a major problem, largely because we cannot say this is settled law yet. In particular we have the CJEU's wide-ranging and, arguably, equally confusing set of decisions about what constitutes an act of communication to the public. In part this is because both the CDPA and the InfoSoc Directive fail to take account of the Internet as it operates today, but it also reflects the fact that the interpretations of the CJEU have to take account of the smooth running of the internal market. Henceforward that will not be a primary concern of the UK courts. But completely abandoning all CJEU case-law would leave a large hole in the UK common law which the courts would need to fill with their own decisions, otherwise the law becomes uncertain. It is arguable that this has happened to the extent that some cases like FAPL v Murphy, or the Meltwater trilogy, have resulted in good precedents made by the UK courts, albeit backed up by CJEU referrals. But until a case is brought to the courts, they can't make the new case-law which is required to fill the vacuum. For instance, we haven't so far had any cases in the UK which engage the issues raised by Svensson, Bestwater, GS Media et al. And assuming that no such cases arise before the end of our membership of the EU, how should the UK courts treat such issues thereafter? Clearly the decision on how much if any of the existing European acquis is to be followed by the UK courts in future extends well beyond just copyright issues, but it does no harm to consider some of the issues in isolation.  

The other main area covered by the InfoSoc Directive is the use of TPMs, and rights management information. Again these provisions have been incorporated into the CDPA and there is no pressing reason to alter the statute in this area at this stage. However, clearly, technological changes in DRM and similar methods may well require changes to the law in the not too distant future.

I don't propose to make any suggestions on the Enforcement Directive. The provisions are largely common-sense and reflect how the UK courts operate in any case.  

Examination of the Computer Programs Directive and the Databases Directive, while bearing in mind obligations under the WCT, provides an opportunity to launch off in different direction. Notwithstanding the fact that the WCT defines a computer program as a literary work, we should recognise both these types of work as being entirely different in character to other copyright works. Not least among the reasons for doing so, is the fact that both have utterly different economic lifetimes. I challenge any reader to name a single computer program which will be in use even fifty years after its creation, let alone the lifetime of its author plus 70 years. Thus the need for such a ridiculous period of protection is laughable. The potential period for copying the programs of others can be measured in under a decade. To reverse the well-known words of Peterson J in a 1911 case, what is not worth copying is prima facie not worth protecting. Furthermore in today's world, there is virtually nothing 'literary' about the process of writing code. Add to that the fact that most largescale software is created by teams of programmers, usually on contracts of employment, this means that tying the period of protection to the lifetime of individuals becomes increasingly difficult to monitor, especially when ownership of the copyright vests in the employer. And we are only a few years from the point where most if not all software will be computer generated in its entirety and the black letter law has virtually no provision for this circumstance. There is also the additional issue of a lack a workable definition of 'software' or 'computer program', as evidenced by the numerous cases in the USA concerning APIs and the like.

Something similar applies to databases. But of course the period of protection here is not based a human lifetime, nor is the driving force the sort of creativity one finds in the world of the writer or musician. Like software, the use of computers to automate the process of database creation masks the true nature of any human creativity or genuine innovation. Add to this the fact that the law as it stands at present means that just adding new data to a database extends to duration to the (notionally fixed term) period of protection, even when this is may be done by the afore-mentioned computer output rather than a human.  Theoretically this could lead to perpetual protection of a database. It is hard to see any common features between database right and true copyright, and it is time to move it out from under the copyright umbrella completely. This would mean we no longer have to shoe-horn such alien 'rights' into the framework for fair-dealing or moral rights, for example.

Next is the eCommerce Directive. Given the fact that CDPA is largely oblivious of the existence of the internet in general, and the commercial nature of much of the world wide web in particular, the provisions of the eCommerce Directive are a fairly useful update and should be retained at least until something more up-to-date can be drafted to encompass new on-line developments. Obviously references to the internal market can be ignored, as can a few of the minor provisions (such as those found in Art 10). All of this could be done with a revised version of SI 2002/2013, as the CDPA does not reflect most of the Directive.

And the last two major Directives can also provide useful adjuncts to the UK law. The world of Collective Rights Management clearly relies on cross border co-operation and so documents like Directive 2014/26/EU provide a useful framework. The Orphan Works Directive also provides a useful set of criteria and practices for institutions to follow, but given their considerable overlap with the separate UK Orphan Works system there is scope for a single unified approach post Brexit which puts the IPO rather than the EUIPO at the centre of the registration process, albeit without precluding the idea of reciprocal links between the two Offices.

It is not sensible to consider here any future developments in EU copyright law which might span the next two years.  Firstly because the EU institutions have not agreed all of the provisions yet, and secondly, the likely timescale for implementing any new directives will probably fall outside the two-year negotiating window.
Conclusion. A steady-as-we-go approach to de-coupling UK copyright should work well. There remains concern about certainty in the law, especially where the creative industries are concerned, but as this will form part of a much wider uncertainty, it is manageable. Our specialist courts have all the necessary experience and tools to fill the gap left by shearing off much of the current European acquis which not already reflected in the CDPA. But reform of the overall copyright legislation is, as Sir Richard Arnold has advocated on several occasions, pressing if the law is to keep up with the pace of technological change. To do otherwise is to be forced to retain the legal fiction that a computer program is just like a book.  

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