Real Decreto 1657/2012: a collector's piece for Spanish copyright enthusiasts

From the 1709 Blog's helpful Spanish friend Fidel Porcuna, a Senior Associate in Bird & Bird's Madrid office, comes this update on the private copying levy in Spain:

"On Sunday 8 December the definitive royal decree on private copying (Real Decreto 1657/2012) entered into force. An earlier public consultation on the draft proposal ended on 5 November. The essential points of the new proposal remain the same: there will be no collecting obligations for the industry and compensation will be met from the State Budget instead. This compensation will be calculated according to the harm caused to copyright owners in result of copying by individuals for private use, but not for professional or business use (after the CJEU so established in its Padawan ruling on the private copy compensation complying with the spirit of Directive 2001/29).

So what has changed from the proposal? A few important things, as follows:

(a) the right for reimbursement of copyright levies "unduly paid", presumably those in relation to digital devices directed to professional or business use;

(b) removal of the six month grace period for paying the due copyright levies that were accrued according to the now old law before 1 January 2012. Debtors seem to have the obligation to pay from the day the Royal Decree enters into force, with no extension on a timely basis.

(c) an express inclusion of books and works assimilated to books, meaning (awkwardly) periodical publications with cultural, scientific or technical content provided they are published under the same title, with a minimum periodicity of one per month and maximum one per semester, and they have at least, not 47, 28 or 19 but 48 pages;

(d) the express exclusion of electronic databases and software;

(e) an express indication that a private copy is one to which the user has legal access. The Royal Decree does not follow a more restrictive position by which the private copy shall only be the copy of the original work (as it was stated in the proposal draft of a new Spanish Copyright Act leaked some time ago to the press); 

(f) the exclusion from the concept of 'private copy' of copies made in establishments whose business is the reproduction on demand, the copies for lucrative or collective use;

(g) the increase of the percentage the collective societies are obliged to preserve for promotion, assistance and education programs;

(h)  prohibition upon the use of compensation to increase salaries, bonus or other pecuniary benefits of their personnel;

(i) the express indication that control measures can be adopted by the Government to evaluate transparency and efficiency of the distribution of the compensation by collecting societies;

In addition, the Supreme Court rejected on 7 December -- the same day the Royal Decree was advertised in the Official Gazette-- the Spanish collecting societies' and the Attorney General's appeal against a 2008 Royal Decree developing the equitable compensation rules establishing the specific levies to be paid for digital devices for year 2009. The Appellate Court annulled this regulation because the Government passed it without the perceptive report of the Consejo de Estado, sitting as a State consultative board, and financial and economic reports. This makes definitive the fact that users of digital devices paid copyright levies according to an invalid regulation from 2008 to 2011. 

The consequences of this are still unknown, but probably collecting societies will press for the State's responsibility. If that happens, a strange situation will occur: (i) user pays undue copyright levy to collecting society, (b) user claims reimbursement of undue copyright levy from collecting society, (c) collecting society claims to the State damages, and (d) State (i.e. all users) pays damages to collecting society".

Modernising copyright in the UK - a modern, robust and flexible framework?

It's the year end and so the 1709 bloggers seems destined to be flooded by new proposals and debate about copyright reform. Following on from Iona's report on EU moves, and the UK's Business Secretary's statement on IP (see here and here) comes the latest paper from HM Government titled "Modernising copyright - a modern, robust and flexible framework". Why you ask? Well  following the Hargreaves Review of Intellectual Property and Growth, and an extensive consultation process, the Government believes that the copyright framework can be improved "to make the UK a better place for consumers and for firms to innovate, in markets which are vital for future growth".

The Executive Summary says that the response ... has been developed with three principles in mind, these are:

1. The copyright framework must continue to incentivise creators of content and support them in protecting their rights from unlawful use;

2. Where possible barriers to competition and growth should be reduced;

3. There are areas of life where copyright should not interfere.

"After considering the responses to the consultation from a wide range of stakeholders and individuals the Government considers that permitting people to make wider use of copyright works, but with suitable safeguards for rights holders, can make those works more valuable for everyone.  The Government aims to find a balance between the interests of rights holders, creators, consumers and  users by introducing through Parliament a revised framework of boundaries for copyright and related rights in the digital age.

Legitimate users of copyright works, the vast silent majority who pay for works and value greatly the contribution that creators make to their lives, will gain important new rights to use those works.  It should make those works more valuable, and creators and rights owners stand to gain some of that value, particularly where they themselves are innovating.

The interests of creators and owners will continue to enjoy strong protection, including requirements for people to deal fairly with copyright works and robust action against those who acquire or make use of works unlawfully."

In particular the Government plans to modernise "fair dealing" for private copying (format shifting), in education, for quotations and news reporting, for parody, caricature and pastiche, for research and private study, for data analysis for non-commercial research, for access for people with disabilities, for archiving and preservation, and for public administration.

The Executive Summary adds "To ensure that permitted acts have the maximum positive impact, the Government wishes them to be clearly established and readily usable, and to deal effectively with current and emerging technologies.   It wants to shift some of the current uncertainty about whether something can be done lawfully into a question of whether a licence is needed or not." and "Consumers and users who purchase access to content should not have to pay again to store or make use of that content, if it is for their private, non-commercial use."

The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013.

http://www.ipo.gov.uk/response-2011-copyright-final.pdf

More on copyright reform from the Commission

Further to its proposal for copyright reform earlier this month, the European Commission yesterday issued a press release giving a little more detail on the four issues to be addressed by "stakeholder dialogue" as well as suggesting what the solutions to these issues might be. The stakeholder dialogue is to be jointly led by Commissioners Michel Barnier (Internal Market and Services), Neelie Kroes (Digital Agenda) and Androulla Vassiliou (Education, Culture, Multilingualism and Youth) and will be launched in 2013 "to seek to deliver rapid progress in four areas through practical industry-led solutions".

The issues to be addressed by the stakeholder dialogue are:

- Cross-border access and the portability of services - the Commission's objective is to foster cross-border online access and "portability" of content across borders. This work should take stock of current industry initiatives and deliver practical solutions to promote multi-territory access.

- User-generated content and licensing for small-scale users of protected material - the Commission's objective is to foster transparency and ensure that end-users have greater clarity on uses of protected material. This work should identify relevant forms of licensing and how to improve information for end-users'.

- Audiovisual sector and cultural heritage institutions - the Commission's objective is to facilitate the deposit and online accessibility of films in the EU. This work should deliver concrete solutions for both commercial and non-commercial uses.

- Text and data mining (TDM) - the Commission's objective is to promote efficient TDM for scientific research purposes. This work should explore solutions such as standard licensing models as well as technology platforms to facilitate TDM access.

The stakeholder dialogue will be invited to present its results before the end of 2013.

In parallel to the stakeholder dialogue, the press release confirms that the on-going review of the EU framework for copyright legal will be completed, based on market studies, impact assessment and legal drafting work, with a view to a decision in 2014 on whether to table legislative reform proposals.

Commission President José Manuel Barroso said:

"Exploiting the full potential of the digital economy is vital to delivering growth in Europe. It is extremely important for us to work with industry in order to accelerate solutions which tap the potential of digital markets to develop new business models. A modern copyright framework can be win-win for all stakeholders, providing sustainable incentives for creativity, cultural diversity and innovation, and improving choice and access to legal offers for consumers."

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".

Cable targets IP crime and education for 2013

Dr Vince Cable, the UK's Secretary of State for Business, Innovation and Skills, has said that he will  launch a specific IP Crime unit within the City Of London Police, giving the protection of IP a formal structure for those members of the City force that already specialise in investigating copyright crimes. The force will set up a dedicated unit to target illegal downloaders next year.

Responding to recommendations from the Hargreaves Report on the future of intellectual property in Britain, Cable also announced plans to promote a consumer facing publicity campaign to fight internet piracy and counterfeiting. In a speech at The Big Innovation Centre in London Cable said "Our creativity, our openness to and talent for innovation, is a key pillar of our return to robust growth. So it is right we work to create the environment in which creative, innovative businesses of all shapes and sizes flourish" adding  "A vital part of this is making sure the intellectual property landscape encourages and cements success and growth. The new vision for how we support businesses and consumers is central to achieving this." The Times quotes IPO Innovations Director Rosa Wilkinson as saying "We're getting a tour bus and we are going to where the young people are, and that ain't necessarily schools" saying the tour bus might visit fun fairs.

Record industry trade body the BPI welcomed Cable's announcement with BPI chief Geoff Taylor saying: "the BPI has argued for some time that the Intellectual Property Office should take on a more active role in educating young people about how IP affects them in the digital world. We are very pleased to hear government's announcement today of a new campaign. We hope that it will be supported by significant funding, so that it can make a real difference in boosting the use of legal music services online".

Dr Cable also said that the Government was prepared to guarantee the proposed Digital Copyright Exchange, and that the Technology Strategy Board would making funding available for search technology that could identify copyright infringement and added that it would be 'weeks' before the Government made any announcement on the planned new exceptions for copyright, which could include an exception for parody.

More on the Guardian online

Broadcast retransmission to remain unregulated in Canada

Last week the Canadian Supreme Court ruled in Cogeco Cable Inc, et al v. Bell Media Inc et al that Canada's broadcast regulator does not have the authority to impose a "value for signal" plan under which television broadcasters would charge cable and satellite firms for retransmission of their content.

In Canada, seeking to respond to recent changes to the broadcasting business environment, the industry regulator, the Canadian Radio-television and Telecommunications Commission (CRTC) sought to introduce a market-based value for signal regulatory regime, under which private local television stations could choose to negotiate direct compensation for the retransmission of their signals by cable and satellite companies (known as broadcasting distribution undertakings or BDUs). The new regime was intended to give broadcasters the right to authorise or prohibit BDUs from retransmitting their programming services. The BDUs argued that this kind of regime would conflict with the Copyright Act. The Federal Court of Appeal held that the proposed regime was within the statutory authority of the CRTC pursuant to its broad mandate under the Broadcasting Act to regulate and supervise all aspects of the Canadian broadcasting system, and that no conflict existed between the regime and the Copyright Act. This decision was appealed to the Supreme Court who found the proposed regulatory regime to be outside the jurisdiction of  the CRTC.

The Supreme Court found that there was no provision of the Broadcasting Act expressly grants jurisdiction to the CRTC to implement the proposed regime, and in any event that the proposed regime would conflict with specific provisions of the Copyright Act. In particular the court held that the proposed value for signal regime would conflict with:

s. 21(1): because it would grant broadcasters a retransmission authorization right against BDUs that was withheld by the Copyright Act. The court held that a broadcaster's exclusive right to authorise, or not authorise, another broadcaster to simultaneously retransmit its signals did not include a right to authorise or prohibit a BDU from retransmitting those communication signals. The court said that " it would be incoherent for Parliament to set up a carefully tailored signals retransmission right in s. 21(1), specifically excluding BDUs from the scope of the broadcasters' exclusive rights over the simultaneous retransmission of their signals, only to enable a subordinate legislative body to enact a functionally equivalent right through a related regime."

s. 31: which creates an exception to copyright infringement for the simultaneous retransmission by a BDU of a work carried in local signals. The value for signal regime would have given broadcasters deletion rights, meaning that any broadcaster unable to agree with a BDU on the relevant compensation for the distribution of its programming services could require any program to which it has exclusive exhibition rights to be deleted from the signals of any broadcaster distributed by the BDU. The court held that "the value for signal regime would effectively overturn the s. 31 exception, entitling broadcasters to control the simultaneous retransmission of works while the Copyright Act specifically excludes retransmission from the control of copyright owners, including broadcasters."

Therefore the Supreme Court allowed the appeal and held that the proposed regime was outside the CRTC's jurisdiction.

This seems to be the opposite to what has been decided in Europe as in Airfield the CJEU found that satellite package providers who retransmit content give access to a "new public" and must therefore get authorisation to retransmit the work.. See here for the US and European positions on retransmission.

 

 This is what Canada looks like today... 

© carrib

 

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. 

Calling all romantic copyright experts ...

Rhoda Baxter -- better known in intellectual property circles as the author of Patently in Love -- has written for some assistance from the world of copyright.  Says Rhoda:

I'm looking for someone who would be willing to give a talk at the Romantic Novelists' Association conference next year. We would like advice/opinion on aspects of copyright law and contracts relating to publishing (in particular the Amazon Kindle/Createspace publishing contract). The conference is on 12 -14th of July 2013 in Sheffield, England. We can't pay much, but can cover reasonable travel expenses and provide hospitality and good company for the day.

If any of your readers are interested, please can you ask them to email me at rhodabaxter@gmail.com and I'll put them in touch with the conference organizers.