David Cameron faces European constraints in introducing a US fair use copyright exception
David Cameron announced last week that there will be an independent review into how the UK’s intellectual property system can better drive growth and innovation. The review will be conducted over the next six months, with the results set out in a report in April 2011.
In the next week or so, the UK’s Intellectual Property Office will announce the name of the person appointed to lead the independent review.
Once the appointment has been made, that person will set out a timetable of how the review will be conducted, along with the procedure for any consultation. According to a Department of Business Innovation and Skills press release, the review will look at:
- Barriers to new internet-based business models, including the costs of obtaining permissions from existing rights-holders;
- The cost and complexity of enforcing intellectual property rights within the UK and internationally;
- The interaction between IP and Competition frameworks;
- The cost and complexity to SMEs of accessing services to help them protect and exploit their IP.
The review will make recommendations on the changes the UK can make as well as the long-term goals to be pursued through the international IP framework.
The review will also look at what the UK can learn from the US’s “fair use” rules covering the circumstances in which copyright material may be used without the rights-holder's express permission. The US fair use exception is far more flexible and less rights owner friendly than the European exceptions.
We do not believe the Government can introduce a US style fair use exception to copyright protection without first renegotiating the text of the European Copyright Directive 2001/29/EC which sought to harmonise copyright law across Europe. Such a change would entail an overhaul of the copyright laws in the 27 European Member States. The UK cannot act unilaterally on this. The possible exceptions that the UK Government (or any European Member State) is able to introduce are set out in Article 5 of the Directive. The list is fairly prescriptive and there is not a great deal of room for manoeuvre.
We await the consultation with interest. Please contact us if you would like to take part in the consultation process.
Lawyers Lorna Caddy, Niri Shanmuganathan
