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PA's PA 11th December

PA's PA 11th December

Welcome to this week’s PA’s PA in a week in which a decision on London airport expansion was kicked into the long grass lying just beyond next year’s mayoral election… 

Digital Single Market

The European Commission has published its much anticipated communication on copyright.  Only slightly amended from the leaked draft, Towards a Modern, more European Copyright Framework provides further insight into the direction the Commission is looking to take its programme of copyright reform and is packed with policy issues of interest and relevance to publishers.  The PA’s response to this can be found here.  

> Copyright exceptions.  As expected, the Commission confirms its intention to take action to “ensure that the EU framework on exceptions that is relevant for access to knowledge, education and research is effective in the digital age”.  Details are not provided as to what form this action will take which is a good sign; pointing to minds having not been made up and therefore arguments still able to be made and won.  The areas in their line of sight continue to be the exception for illustration for teaching (and making this applicable to digital uses and online learning – as in the UK), digitisation for the purposes of preservation by cultural heritage institutions, remote consultation of works held in research and academic libraries for research and private study, and text and data mining.  Perhaps most worryingly, in relation to this last point, the Commission’s language is causing the most concern in that they refer to allowing ‘public interest research organisations’ to carry out TDM for scientific purposes.  As we pointed out in our media statement, a ‘public interest research organisation’ could be anything including a commercial business well able to pay for a licence to undertake mining activity, as in fact many already do.  The devil is always in the detail and we will be seeking clarification on this. 

> Portability.  Of less direct immediate concern to publishers, the Commission has also published its purposed draft Regulation (a form of European legislation which does not require adoption by national parliaments – it is just immediately ‘read’ into domestic legislation) to ensure users who have subscribed to or acquired content in their home country can access it when they are abroad.  This has received the strong support of the UK Government who see it as a useful example of a benefit UK consumers get from being part of Europe.  The Prime Minister commented the UK has been driving for the change in regulations.  He said: “The UK has been pushing for a digital single market that delivers for consumers across the EU.  People who have paid for movies or sport subscriptions at home want to be able to use them across Europe. These proposals deliver just that, and show how UK leadership can secure a flexible single market that works for EU consumers and businesses. I look forward to swift agreement on these proposals.”

> Enforcement.  While this section doesn’t go a great deal further than that in May’s White Paper, the Commission confirms its commitment the ‘Follow the money’ approach and will assess the application of injunctions and their cross-border effect.  It has also launched a public consultation on the role of online platforms and the system of ‘notice and action’, asking whether it needs to be more of a system of ‘notice and stay down’.  

> Level playing field.  This section in the Communication covers a wealth of different issues in a very broad-brush way.  The section is only just over a page long and encompasses issues relating to sites such as YouTube and whether they are making inappropriate use of the safe harbour provisions which limit their liability if infringing content is posted on their sites (and which makes licencing negotiations very difficult), what acts should be considered as ‘communication to the public’ and under what conditions with the Commission committing to examine whether action is needed on the definition of this and of the ‘making available’ right, and fair remuneration of authors and performers.  

Alongside this Communication and the draft Regulation on Portability, the Commission also published a proposal for a Directive on consumer rights in the supply of digital content - the idea being to harmonise the protection and remedies for consumers when faced with ‘defective’ digital content.  We understand that this mirrors to an extent the measures the UK enacted early this year as part of the Consumer Rights Act 2015.  As with that legislation, this relates to business to consumer transactions, so will only impact publishers when they are selling directly to consumers.  

Other points to note include a last minute change to the leaked draft which saw new wording in the line (in the paragraph on levies): ‘Issues that may need to be addressed include (…) the relation between contractual agreements and the sharing of levies” (added wording in bold and underlined).  This, we believe may be a nod to the recent judgment in the HP v Reprobel case which saw the CJEU, in a bizarre ruling, state that publishers were not beneficiaries of the reproduction right and therefore not eligible to compensation.  This is clearly inaccurate and this new wording may be an indication by the Commission that this needs to be fixed.     

UK Government on DSM

The day before the Commission published its document, IP Minister Baroness Nevile-Rolfe gave a speech at Politeia about the importance of IP and made several references to the DSM. She argued that UK has long been a strong supporter of the single market, and the extent to which the EU has been able to remove barriers to trade within it has been one of its greatest achievements. But that there are still barriers that need to be tackled, in particular when it comes to the digital environment.  She felt that the issue is urgent and that if we were not act now to shape the global digital environment, the EU will increasingly get left behind. Instead we need to take advantage of our potential digital market of 500 million people.  She referenced how  79% of UK consumers sometimes shop online, far more than in other member states, and with our large e-commerce and creative industries we are well placed to benefit.  She argued that most people see no reason why they should not be able to take the iPlayer or Netflix with them when they are away .She stated that many of the proposals presented will present us with challenges, such as better cross-border provision of digital services has potentially many benefits in increasing sales of UK content and reducing incentives for piracy.  She told the audience that she expects the Commission to touch on other equally difficult conundrums – how to introduce EU-wide rules on data mining; on the freedom to photograph buildings in public places; on accessible formats for disabled people; on copyright ’s interaction with education, research, and culture; on the liability rules governing search engines and internet services providers and their responsibility to help prevent copyright infringement.  Rounding things off she stated “In each of these areas, the questions are difficult. And the devil will be in the detail. We want to make sure that copyright does not stand in the way of innovation and new markets; but we also have a responsibility to ensure it continues to reward our creators and creative industries.” 

Transition period for the repeal of Section 52

This saga continues with the Government having heard half of our plea and extended the deadline of the consultation to 23rd December.  While this is of course welcome, it does of course have no impact on the real matter at hand – the fact that the transition period is running throughout the consultation period as opposed to, as one would expect, starting from the point of when the legislation giving effect to the repeal becomes law.  A small number of documents have also been released as part of our FOI request.  As perhaps expected, they shed no light on why the Government has performed such an about turn, with many of the exemptions being invoked to hold back the majority of documents.  

Reading for Pleasure and Literacy

The National Literacy Trust has released new research which shows that using ebooks to read can help boys to make significant progress with their reading and get the most reluctant readers to enjoy reading more.  The Impact of ebooks on the Reading Motivation and Reading Skills of Young People: a study of schools using RM Books found that during the project, which lasted for an average of 4.2 months, boys’ reading levels increased by an average of 8.4 months, compared to 7.2 months progress made by girls. At the same time, the percentage of boys that felt reading was difficult almost halved from 28.0% to 15.9%, suggesting that confidence in their own reading ability also increased as a result of this project. Twice as many boys also thought reading was cool at the end of the project, increasing from 34.4% before to 66.5% afterwards. 


Further information has been provided this week on the Government’s apprenticeship policy.  English Apprenticeships: our 2020 Vision sets out the building blocks the Government will be putting in place in place to meet its target of three million apprenticeship starts by 2020.  Amongst other things, the document sets out the core principles that define an apprenticeship (such as job in a skilled occupation; at least 20% off-the-job training; develops transferable skills).  It repeats the commitment that employers are to be in the driving seat, with this supposedly being enshrined in the establishment of an Institute for Apprenticeships – an independent body, led by employers which will regulate the quality of apprenticeships.  Groups of employers will be able to develop a particular apprenticeship standard, although the approval process of this does appear to be rather onerous.  Small businesses will be given particular support as will the public sector – it being pointed out that the public sector lags far behind the private sector in provision of apprenticeships.  Management of the levy will be via a new Digital Apprenticeship Service – exactly how is yet to be announced.  

Higher Education

Universities and Science Minister, Jo Johnson MP, gave evidence this week to the Business Select Committee as part of their inquiry on Assessing the Quality of Higher Education where he was challenged by MPs over his use of the word ‘lamentable’ to describe some university teaching.  Committee Chair Iain Wright took the strong view that ‘patchiness’ doesn’t necessary equate to lamentable.  Johnson confirmed that the Teaching Excellence Framework would look at rates of entry into graduate jobs rather than graduate salaries when assessing quality in Higher Education but stressed that the exercise would not be based “just on metrics”.  THE reports on it here.    


This week we have:

Met with Baroness Neville-Rolfe at the Alliance for IP Christmas Lunch (co-sponsored by The PA); bumped into Culture Minister Ed Vaizey; caught up with The Booksellers Association, the PPA and the News Media Association; attended a CICI lunch with Jesse Norman MP, Chair of the Culture Select Committee; continued our discussions with Creative Skillet on the apprenticeship levy; met with creative industries colleagues at the Creative Industries Council IP Sub Group.  


Next week we will be:

Giving evidence to the Business Select Committee as part of their inquiry into the Digital Economy; catching up with PLS and their new Director of Publisher Relations; meeting with Creative Skillset; meeting with the Society of Authors and the Association of Authors Agents; discussing the European Commission’s communication on copyright with the Intellectual Property Office; enjoying our staff Christmas Party!