FOCAL, UK copyright reform and the public sector: a rsponse

A correspondent who wishes to preserve anonymity but who supports the Libraries and Archives Copyright Alliance (LACA) has taken issue with some of the comments made by Hubert Best (FOCAL) and reported a couple of days ago on Ben's post, "FOCAL re-warns archive owners on the dangers of giving ministers exceptional powers", here. Our correspondent writes:

"I was somewhat dismayed by the recent post on this weblog about FOCAL and Hubert Best. Hubert might claim to speak for libraries and archives, but he represents ones that are commercial in their operation and that are more accurately categorised as image libraries. The vast majority of libraries and archives in the UK are non-commercial and most are in the public sector. They might engage in a certain amount of commercial activity, to boost their funding, but the services they provide to the public are for the most part given free of charge. The interests of the bulk of the UK library and archival communities are thus very different from those of the small sector that Hubert and FOCAL represent. To suggest that Herbert represents the views of archives generally is extremely misleading; so far as I know, he is unknown to the Archives and Records Association, the professional body for archivists, or CILIP, the professional body for librarians.

Over the last 20 years or so, copyright has been significantly reformed, as the result of directives agreed by the EU. The direction has been consistently to strengthen rights and to lessen the freedom of users: copyright term has been extended, new rights have been introduced (rental and lending, communication to the public) and exceptions have been limited (for instance, fair dealing for research has been limited to non-commercial research). The balance that was created in the 1988 Act between the interests of rights owners and users has been tilted in favour of rights owners. There were no complaints from rights owners about the manner in which those reforms were introduced to UK law. Now governments in the UK and elsewhere have recognised that rights that are too strong restrain innovation: all creators are also users, and need some freedom to benefit from the works of others. And now that the reform is aimed at extending the exceptions and limitations we hear cries that what is being done or proposed is unconstitutional.

The Enterprise and Regulatory Reform Bill contains several measures that will assist most libraries and archives in the UK, even if only in a small way:

• It gives the Government the power to remove the absurd 2039 terms: all unpublished literary works, of any age (even from say the 16th century), are protected by copyright until 2039 at the earliest. This means that copyright is an issue that every archivist dealing with conventional materials (company and government files, private papers) has to understand, because almost all their written collections are in copyright. Harmonisation of copyright term to life plus 70 years in Europe gave rights owners extra years but that harmonisation should apply across the board, resulting in the ending of copyright for older works.

• It gives the Government power to amend exceptions by statutory instrument. The purpose of this provision has been clearly stated to be to allow criminal penalties to be raised. The Government already has similar powers under the European Communities Act 1972 and these were used to reform the exceptions in accordance with the Information Society Directive. It is notable that those regulations dealt with all changes to exceptions in a single instrument, and of course those changes were uniformly restrictive. Now that there is the prospect of regulations to extend exceptions we are told that the process is flawed and that every change must be the subject of a separate statutory instrument. You state in your blog: ‘FOCAL says that what this all means is that in the future important reforms to UK copyright law will be able to be made by a Minister without the need for either debate or indeed seek sanction by Parliament. As Hubert says, these are "huge powers" and should not be "handed over by Parliament to Ministerial Order" - in effect future copyright reforms could be made by a Minister at an time without the need for debate or vote in Parliament.’ This is nonsense and I am surprised that you published it. As a lawyer, Hubert should know better. Regulations under the new provision, just like the regulations already made or to be made in the future under the 1972 Act, are by the affirmative procedure, under which both Houses of Parliament must debate and vote on them. This takes a lot of Parliamentary time, and it seems unlikely that time could be spared for a succession of instruments when a single one can do the job and has done the job in the past.

• Extended collective licensing is a voluntary process: collecting societies and their members must decide that they would like to extend their collective licensing to non-members, they must demonstrate that they represent a substantial proportion of the rights owners in the field and they must allow people to opt out. As it happens, much conventional archival material is outside the scope of ECL because there is no-one to represent the relevant rights owners, for instance of copyright in private letters. It is likely to be of benefit to conventional libraries, including some large ones, that wish to digitise their holdings.

• The orphan works proposals are a licensing solution to the problem of orphan works. One would expect rights owners to find this more acceptable than the exceptions-based approach adopted for the recent Orphan Works Directive. It requires a diligent search for the rights owner of every work and so will not assist libraries or archives with their large-scale digitisation projects, but could assist researchers wishing to use a relatively small quantity of potentially orphan material.

The IPO is expected to make public soon its plans for reforms to exceptions and limitations, which will probably for the most part be the subject of regulations under the 1972 Act. Libraries and archives in the UK that are represented by LACA (FOCAL has never sought representation, though LACA does represent all types of public sector library as well as some private sector legal and commercial libraries) are hoping to see, among other things:

• reform of the exception for preservation copying, permitting preservation copies of all kinds of work and permitting preservation copies to be made as required (for instance when digital files need to be migrated)

• reform of the exceptions for library and archive copying for users, permitting copies of all kinds of work to be made

• similar reform of fair dealing for private study and non-commercial research purposes; and

• extension of the definition of designated archives for the purposes of the preservation of folksongs".

FOCAL re-warns archive owners on the dangers of giving ministers exceptional powers

FOCAL is the UK based trade association for audio-visual libraries with members from around the globe which, amongst other activities, facilitates the use of library footage, images, stills and audio in all forms of media production; promotes FOCAL members - libraries selling content; encourages good practise in the research, licensing, copyright clearance and use of footage. It also acts as a "voice" for libraries - and for clarity I should declare that one of my clients is a member of FOCAL. 

One recent debate FOCAL encouraged was around the 'fair use / fair dealing conundrum - with commercial libraries adamant that (almost) any use of their archives would require permissions and payment, whilst an increasing number of film and programme makers considered that the use of clips could (at least arguably) fall under fair use provisions, at least in the USA. An interesting debate - but not the one I am focussing on here. 

Back in October, Hubert Best, FOCAL's legal advisor, highlighted a number of issues raised by copyright provisions contained in the Enterprise and Regulatory Reform Bill passing through the UK's parliament. The Government say their proposals are "designed to support the legitimate use of copyright works, while making sure creators are protected and properly remunerated". Hubert pointed to reforms which concern FOCAL members - widening the exceptions to copyright protection and introducing new ones; allowing orphan works to be used commercially; and introducing a Digital Copyright Exchange, in particular 

- Clause 57 will empower a Minister to add, change or remove any copyright exception by order;

- Other clauses empower a Minister  to shorten the term of copyright of some older works , introducing Extended Collective Licensing and arrangements for the use of orphan works (including commercial use) by order.

FOCAL says that what this all means is that in the future important reforms to UK copyright law will be able to be made by a Minister without the need for either debate or indeed seek sanction by Parliament. As Hubert says, these are "huge powers" and should not be "handed over by Parliament to Ministerial Order" - in effect future copyright reforms could be made by a Minister at an time without the need for debate or vote in Parliament. Apart from the lack of certainty this will provide, a serious concern for the content industries is the risk to future investment - why digitise a library when copyright exceptions stand to be widened or copyright term shortened? As Hubert says, the uncertainty will make the UK a place "to avoid for copyright investment" - certainly for archives. 

A number of concerned libraries including British Pathe, AP, Getty Images, ITN and Reuters have formally written to ministers objecting to Clause 57, but the protest seemingly faell on deaf ears. FOCAL is now calling on its members to highlight what are clearly important issues to MPs: There is an interesting Blog on the IPO's website with comment both from the Intellectual Property Office and those concerned about the legislation which 1709 readers might find interesting - and more comment on the IPKat here and more on The Publishers Association website here and the October debate in the Commons here. 

In the Winter 2012 issue of Archive Zones (No 84) Hubert has updated FOCAL members on what's happening, A wider group of concerned parties including British Association of Picture Libraries and Agencies (BAPLA), Bridgeman Art Libray, Corbis, the Chartered Institute of Journalists, the Royal Photographic Society and Magnum have working hard to resist the revisions to UK copyright law, re-emphasising that some changes would produce an adverse environment for digitising, preserving and producing on-line licensing models for archives in the UK. The IPO is also holding a series of meetings to intended to establish the 'rules' which would apply to extended copyright licensing (ECL) and orphan works. The Enterprise Bill is now at the Committee Stage in the House of Lords. The next meeting is on the 18th December 2012, The Bill is sponsored by Dr Vince Cable MP, the Secretary of State for Business, Innovation and Skills and Lord Marland of Odstock, the Parliamentary Under Secretary of State whose portfolio includes IP.

Hubert also reports that the new Steering Group for the Richard Hooper engineered 'Copyright Hub', proposed in the wake of the Hargreaves Review of IP, will haves a FOCAL representative on board, giving an important voice for libraries and archives on the Group which will look at the workings of the Digital Copyright Exchange.