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PA's PA 16th September 2016

PA's PA 16th September 2016

Welcome to this week’s PA’s PA in a week in which Diane James was elected the new leader of UKIP – leaving male leaders of political parties as an endangered species.  This week also saw signs of Theresa May’s honeymoon coming to an early end as she came under criticism for giving the green light to Hinckley Point and single-handedly managed to do what Jeremy Corbyn has been failing to do, unite the Labour Party with her announcement on grammar schools. 

In this edition


Digital Single Market update

As indicated in last week’s edition, the Commission brought forward the publication of its directive on copyright in the digital single market.  It changed very little from the leaked draft which was report on previously in PA’s PA with the main provisions remaining:

  • New mandatory exceptions covering illustration for teaching, text and data mining and preservation. 
  • A new publishers related right for press publishers
  • Provisions on transparency, best seller clauses and alternative dispute resolution with regards to author contracts

Following our meetings with Commission officials (reported in last week’s PA’s PA), a couple of good, minor improvements have found their way into the text. 

  • There is a clear definition of public interest research organisation which according to the directive means “a university, a research institute or any other organisation the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services a) on a non-for-profit basis or by reinvesting all the profits in its scientific research or b) pursuant to a public interest mission recognised by a Member State”.   The potentially ambiguous “such as…” wording has been removed.    
  • The wording around the Reprobel ‘fix’ (the provision to ensure publishers can receive compensation for uses of their works under the exceptions, such as that for private copying) has been amended.  The original wording only referred to this being applicable when an author has transferred his rights to a publisher.  It now reads “transferred or licensed”. 
  • On the author remuneration elements (which still remain very vague) they have included an additional point in the actual relevant article (14) which says that the requirement to report back to authors on a regular basis wouldn’t have to apply if it was deemed that the authors contribution is not significant.  This was originally only in the recitals.  Major questions do still remain here and the PA will be consulting its members. 

While it would still (from a UK perspective) be unnecessary for the Commission to do anything in this space (the copyright reforms of 2014 addressed many of the policy issues here), what they have published today is significantly better than we expected a few months ago.  This will now pass to the European Parliament which is, unfortunately, less friendly to the content industries and so we will have a lot of work to do to ensure the reforms remain as limited as they are here. 

Marrakesh Treaty

As part of the Copyright package the Commission also published two legislative proposals (directive and regulation) for the European Union to implement the Marrakesh Treaty for the benefit of Persons who are Blind, Visually Impaired or otherwise Print Impaired. It has received the required 20 ratifications on 30th June 2016 and consequentially will enter into force on 30th September 2016 for the WIPO Member States who have ratified the Treaty. Neither the European Union nor any European Union member state has yet ratified the Marrakesh Treaty. As a reminder, the Marrakesh treaty has two main elements:

(i)                Limitation/ Exception for the benefit of persons with print disabilities in national law

(ii)              Limitation/ Exception for “authorized entities” to export and import accessible format copies (“cross border exchange of accessible                       copies”)

The European Commission proposes:

  • a Directive establishing a mandatory exception for persons who are Blind, Visually Impaired or otherwise Print Impaired (similar to the one already existing in the UK under Sections 31A onwards CDPA); it also provides for the exchange of such accessible format copies within the single market.
  • a Regulation enabling the cross-border exchange of such copies between the EU and third countries that are parties to the Treaty.

Delhi University court case

We finally received the long awaited judgment in the case a number of our members had brought against Delhi university for copyright infringement.  A copy shop on the university campus was copying sections of their textbooks and selling them as course packs.  In a hugely disappointing decision, the court has dismissed the publishers claim, stating that the University was acting within its rights under the exception for reproduction of works by teachers or pupils in the course of instruction.  In reversing the interim injunction awarded to the publishers in 2012, the Court decided that the exception in Section 52(1)(i) of the Copyright Act, 1957, that “the reproduction of any work by a teacher or a pupil in the course of instruction” does not constitute an infringement of copyright, applied to the case of photocopying activity on campus, despite the plaintiffs’ argument that the exception only covers reproductions made for in-classroom teaching, and certainly not reproductions made in preparation for teaching and reproduction made commercially by an outlet that sold such course packs.  The judgment also states that the exception is not a “fair dealing” exception, therefore implying that there could be no restriction on the quantum of copying.   Not only is the judgment entirely flawed, but it undermines the viability of educational publishing and licensing in India.  The judgment could still be appealed to the Delhi High Court.   See this report in The Hindu for further information.  

Innovation and Growth Report

The IPO has published its report into how its work has promoted innovation and growth, a requirement under the Intellectual Property Act 2014.  The report covers the impact of Brexit and states: “The EU referendum result has heralded the beginning of the most fundamental change in over a generation in how the UK perceives itself and in turn how it is perceived. This presents us with an opportunity to think more radically about what IP means for UK innovation and growth, to explore new opportunities and to make policy with more creative freedom than we have had for some time.”  The full report can be accessed here

UK legislation update

MPs debated the Higher Education and Research Bill at Committee Stage in the House of Commons this week, with opposition MPs raising concerns over plans to link the new Teaching Excellence Framework with a university’s ability to increase tuition fees. Meanwhile backbench Labour MP Wes Streeting proposed amendments to create greater transparency about levels of pay in universities and to put staff and student representatives on remuneration committees. Earlier this week the University of Cambridge and Universities UK warned that the bill’s plans to create a powerful university regulator in England amounts to a “harmful incursion by government”.

The Digital Economy Bill had its second reading in the House of Commons, with members and parties across the house supporting measures to equalise copyright penalties with those of physical theft. A number of MPs also said they would like to see search engines and other intermediaries do more to tackle online infringement. SNP MP Pete Wishart suggested the bill should do more to tackle the value gap between “those who create the wonderful content we have in this country and those in big tech who earn money from it”. Labour MP Thangam Debbonaire said the government should consider making online providers liable to ensure content is legally available. The bill’s committee stage will begin on 11th October, and the committee will be chaired by Conservative MP Gary Streeter and Labour MP Graham Stringer.

Culture, Media and Sports Committee launches Brexit inquiry

The House of Commons Committee for Culture, Media and Sport has launched an inquiry into the impact of Brexit on the creative industries, tourism and the digital single market. Among other things, the Committee is looking for evidence on how the UK will be able to attract and retain talent from across the world to maintain its strong reputation in the creative sector post-Brexit, what should happen in relation to copyright after the UK leaves the EU, what the impact will be of the loss of EU funding and what are the fears and advantages of the UK being outside the Digital Single Market. Damian Collins MP, acting chair of the committee said: ‘The creative industries and tourism are two of the most important sectors in our economy, and we have to make sure that Brexit can become a success for them.’ The deadline for submissions is Friday 28 October.

Nesta report on migration and the creative industries

A new report from innovation charity Nesta has urged policy makers to do all it can to ensure the UK is able to access talent outside Europe to support growth in the creative industries. The report, called “Skilled Migration and the UK’s Creative Industries”, found that between 45.5%-55.5% of jobs in the creative industries are filled by European and non-EEA migrants. It warned that a change in the future status of prospective and current European workers in the UK would disproportionately affect creative service activities like publishing, advertising and design which employ around 10% of their workforce from Europe, compared with 5.6% for the rest of the economy. In light of uncertainties around EU migrant workers in the creative industries, the report called on the government to review how to make it easier for UK creative businesses to meet their migrant talent needs from outside Europe.

Grammar schools

Theresa May’s about turn on grammar schools (to expand existing and initiate new ones) saw the new government take quite a lot of heat this week.  The new Education Secretary, Justine Greening, sounded very uncomfortable defending the policy on the airwaves and it provided Labour leader Jeremy Corbyn with a clear line of attack at PMQs, allowing him to land some (unusually) forcefully made points on the PM.  He congratulated her on the unprecedented unity in thinking on education that her proposals had brought on for Ofsted, the teaching unions and both sides of the House, and asked her to name the experts behind her proposals.  Answer came there none, though May responded with references to levelling up chances for children and a diverse schools system.  Corbyn noted that Kent’s grammar school system sees 27% of pupils on free school meals with five good GCSEs compared with 45% in London, so why expand a system that lets children down?  ‘(You) went to a grammar school and I went to a grammar school, and it is what got us to where we are today,’ said May, accusing Corbyn of pulling the ladder up behind him.  Corbyn came back to suggest a ladder for every child instead, giving them the best possible education they could have rather than dividing them at the age of eleven so that they lose out.  He also managed to get in quotations from David Cameron on the ‘hopelessness’ of grammars’ promise to offer a decent education only to a select few, and from Michael Wilshaw, outgoing head of Ofsted, on the belief that the poor could benefit from the return of grammars (‘tosh and nonsense’). 

Schools Minister at ResearchED

Speaking at this year’s ResearchED conference, schools standards minister Nick Gibb MP used the event to demonstrate how the Government will not be back-tracking on any established policies any time soon (a claim slightly undermined by the subsequent about turn on grammar schools!).  He noted that better research is gradually chasing poor practice ideas that have no evidence behind them out of the classroom but that there is a still a gap between research and impact, thanks to the indecipherable nature of research papers and the lack of time teachers have to engage.   He reiterated the Government’s related commitment to tackling teacher workload, highlighting the year that will be given to schools to prepare for significant accountability, curriculum or qualification change - also government funding for the Education Endowment Foundation.  Nor did he waver on Government’s drive for fundamentals and standards, including an emphasis on spelling and grammar at KS2, systematic synthetic phonics and maths hubs ‘introducing Asian-style maths mastery’, though he added that ‘what is succeeding and what is failing’ will become more apparent as the academy and free school policies mature.  Sutton Trust research, he said, show that those from the most disadvantaged backgrounds benefit most from the EBacc, adding weight to policy in support of a ‘demanding, knowledge-rich curriculum’.  

Draft plans for BBC Royal Charter

The BBC will have to name all employees and presenters who are paid more than £150,000 under draft plans for the Royal Charter announced this week. Karen Bradley, the new culture secretary, said the move was part of the government’s aim to make the BBC as “open and transparent as possible”. However the new rules triggered an angry response from the BBC, with its director general Tony Hall saying that it will “not make it easier for the BBC to retain the talent the public love”. The plans will also see Ofcom take on the regulation of the BBC, the BBC Board taking over its governance, and the National Audit Office becoming its financial auditor. Meanwhile the BBC’s chair, Rona Fairhead, has said she will step down from her post after Theresa May indicated she would have to apply again for the job despite being reappointed to the role by David Cameron four months ago.

This week we have:

Discussed the Commission’s new proposed copyright directive with FEP colleagues at our ‘summer’ meeting in Brussels; spoken at the NAG and TechShare conferences in Glasgow; met with the CENL (Conference of European National Libraries); discussed upcoming activity for the Publishing APPG with its chair Iain Wright MP;  met with the UK IP Attaché to South East Asia and raised our concerns with the proposed Singapore copyright reform; met with the Creative Industries Council marketing and communications sub group. 

Attending the Creative Industries Council Diversity Working Group; meeting with Oxford Economics to discussed potential research; meeting with colleagues at the Alliance for IP to discuss copyright issues and research; going to the Joint Committee on Legal Deposit.