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PA's PA 1st August

PA's PA 1st August

Welcome to this week’s PA PA; in which one of the longest general election campaigns in recent history got underway with the Leader of the Opposition saying that he was not telegenic whilst the Prime Minister was filmed on an immigration raid….

Copyright Exceptions

Like a long-running TV series which doesn’t quite know how or when to end, the Modernising Copyright Statutory Instruments were debated again in the House of Lords this week – with the final (?) debate on private copying and parody.  The full debate can be read here, but – spoiler alert – they were passed and will now come into force in October.  The Hargreaves-based debate has been going on for so long that Baroness Neville-Rolfe is now the third IP Minister to have spoken on them to the Lords. 

In this debate, the Government reiterated its view that music rightsholders should not be entitled to compensation for private copying – even though European law requires it – because such compensation is “priced in” to the sale of CDs.  However, the IPO’s own study into this very question and published last year found the very opposite.  The Government asserted that the Recital 35 of the Directive which determines the need for compensation does not apply in the UK’s case because the proposed exception is narrower than anywhere else in Europe – despite the fact that it is the only Member State where the copying will apply to locker services

The IPO believe that “the current lack of legal clarity in this area may be an obstacle to growth in cloud services in the UK”.  This is a curious statement given that cloud services, like iTunes match and Amazon’s AutoRip services have been bounding along quite happily in the past few years thanks to innovate licensing by rightholders.   Baroness (Estelle) Morris pointed this anomaly out highly effectively.  

From the Labour front-bench, Lord Stevenson sustained the arguments raised previously that the Joint Committee on Statutory Instruments has reported that there “appears to be doubt as to whether the [proposals are] intra vires” and that Government had made a “grave error” in not bringing them forward as primary legislation.  However, the Government is sticking the guns of its (not going to be published) legal advice that there is no clash.  (We might hope, but I suspect in vain, that the Open Rights Group will campaign to see this advice made transparent and available.)

On the Lib Dem benches, Lord Clement-Jones continued to badger the Government on contract override provisions, noting that they appeared to fall foul of the  European Communities Act.  Again, he was met with the Alistair Cook-like straight bat defence that the Government believe it is acting lawfully.

A particular highlight of the debate was Lord (Michael) Grade calling out the “global army of parasites who live off the investment that creative people have made in the UK”…and…“what the Government have failed to understand throughout their deliberations on copyright since the Hargreaves report is that there is a direct correlation between investment and the investor’s ability to control and police its copyright, and to protect that investment to ensure that it gets value for it.”

So is this it?  Well very probably, but the debate was again characterised by some unusual statements from the Government which may give rise to quizzical closer interest from Learned Friends.  An article discussing that very possibility has appeared on the news site Outlaw, here.

Almost unnoticed, the parody and quotation exceptions were also passed; although Lords continued to point out that there was a startling lack of definition of the concept of parody and “fair dealing”.  Championing their “victory” the Open Rights Group tweeted to ask people to nominate their favourite example of parody from recent times: we were compelled to reply the Hargreaves Economic Assessments were the best comedy pastiche of policy analysis we’d seen in years….

European Copyright

As reported in PA’s PA two weeks ago, Commission President Nellie Kroes made a speech at the Institute for Information Law (…no, us neither…) opining that copyright law was “crying out for reform”.  In a wonderful counterblast to this view, IFRRO – the international federation of reprographic rights organisations (of which the UK’s PLS and CLA are members) has published this open letter.  Rainer Just (President) and Olav Stokkmo (CEO) demolish the Commission’s argument that Canada is a model for reform, and asks – not unfairly – exactly what should replace the system of exclusive rights and exceptions which is so apparently broken.  There are many highlights, but the peroration is worth quoting: “we would also welcome a dialogue on cooperation in developing a digital content market where it easier to access content legally than illegally.  This can only be achieved through an open dialogue in which the Commissioner has not made up her mind on the outcome before the dialogue starts and where the Commissioner is open to the possibility that copyright works also can and should be used even when a royalty to the creator has to be paid.”   It wouldn’t fit well on a banner, but it’s not bad as slogans go.

Higher Education Finance

In an interesting intervention for its content, timing and source, the recently stood-down Universities Minister David Willetts used an article in the Financial Times to suggest that universities should have the option of buying a portion of their students’ tuition fee debt.  This was an idea which has been actively considered by government, he said.  The plan would mean that universities, rather than the Student Loan Company, would own the debt and would thus have a financial stake in their students’ employment prospects.  The Times Higher Ed’s take on the idea is here.

This Week We….

Met with the IPO to discuss the Creative Industries Council recommendations.

Next Week We…

Are meeting with some Lib Dem special advisers and planning the September roll-out of The PA’s publishing manifesto.