The UK recently released its draft working text for a comprehensive free trade agreement with the EU. While controversial issues like fisheries and the level playing field have had all the public attention, the provisions on copyright are well worth careful consideration. The document only forms the basis for discussions and there's always the possibility that a comprehensive agreement won't be reached anyway.
However, whatever happens in the negotiations, we think the text contains some very important indicators of how UK copyright policy may develop in the coming years – it's the first reveal of the government's copyright agenda and is a clear statement of intent of how it may wish to "take back control" of copyright. If it is a sign of things to come, the UK government could be lining up material changes to the UK's copyright regime. Those changes could impact, for example, term, damages, exceptions, categories of work and safe harbours. All those involved in public affairs and lobbying in Westminster and beyond will need to be ready for the consultation and legislative processes which will follow the end of the transition period.
The overall message we take is that the UK government could be getting ready to make the UK a less friendly environment for rights holders and to draw back from the "gold standard" copyright regime developed over the last couple of decades of EU copyright reform. The proposal gives few express clues on how the government wishes to strike the balance between content and tech. For example, there are no proposals around safe harbour protection for intermediaries. However, it certainly allows for the possibility of the UK loosening protection for rights owners and striking its own balance.
There are also some obvious potential omissions/mistakes. For example, the UK is not proposing a commercial rental right for authors but is for performers and record producers (the EU's proposal, consistent with the Rental and Lending Rights Directive, proposes it for all three) and the UK's proposal doesn't reference the term of jointly authored works (even though the Berne Convention requires term to start from the death of the last surviving author).
We will shortly be publishing a detailed analysis of the UK's proposals, comparing them to the EU's proposal and current regional and international standards. For now, here are some key areas in which the UK government appears to be reserving itself room for manoeuvre:
- Term – The UK could reduce the copyright term for authors of musical compositions with words by untying the terms from each other. Currently, the terms for each of the music and words are seventy years from the year of death of the last to die of the authors of both the music and the words. However, the UK could return to the position in place before implementing the EU's 2011 Term Directive and calculate the term for the music from the year of death of the author of just the music and do the same for the lyrics.
- Exceptions – There would no longer be an exhaustive or even indicative list of what exceptions could cover. The only control over exceptions would be that they must comply with the three step test. The UK's and EU's proposals are aligned on this point. Might this enable the UK to introduce a more fair use approach to exceptions, not confined by its current approach of a closed list of specific exceptions? That approach was mooted by David Cameron when launching what became the Hargreaves Review in what was termed his "Googlesburg address" in 2010. It would also allow the UK to introduce new exceptions to deal with new technological, cultural or educational uses, when it currently wouldn't be able to if they were not on the Copyright Directive's closed list of exceptions or in the 2019 Copyright in the Digital Single Market Directive.
- Damages – The EU's proposal is based on its 2004 Enforcement Directive. For example, it requires that damages should be appropriate to the actual prejudice suffered when there is knowing infringement and that damages awards should take into account all appropriate aspects including unfair profits made by the infringer and moral prejudice caused to the right holder. However, the UK's proposal is much more focused on compensation and doesn't mention (eg moral prejudice and unfair profits). This could allow the UK to return to a more "traditional" compensatory approach to damages, which would be less generous to rights holders.
- New categories of works – Neither the UK's nor the EU's proposal includes any limit on what types of work can qualify for copyright. Might this enable the UK to recognise new types of works created by or with "non-traditional" authors such as robots or artificially intelligent machines?
- Safe harbour – Neither the UK's nor the EU's proposal requires any, or any a particular form of, safe harbour defence for digital intermediaries. There is, for example, no equivalent to the EU's eCommerce Directive's hosting exception in either proposal. May we therefore see the UK government consider whether the current safe harbour regime strikes the right balances between, for example, rights holders, intermediaries and users? There are already a number of other initiatives in play along these lines. We know from the UK government's published policy to impose duties of care on intermediaries to reduce "online harms" that there is increasing scrutiny on the roles intermediaries can and should play. The EU Commission has launched a public consultation on its Digital Services Act which will "upgrade our liability and safety rules for digital platforms". The US Copyright Office has also recently concluded that Congress may wish to "fine-tune" the US's safe harbour regime to "better balance the rights and responsibilities of [online service providers] and rightsholders in the creative industries." The UK may therefore see repeats of the debates surrounding the EU's article 17 of the 2019 Copyright Directive
All those involved in copyright in the UK and beyond may be set for a busy few years of policy consultations and legislative proposals, with even more at stake than the last flurry of copyright activity between 2010 and 2014. We're here to guide and support stakeholders through this journey.