Copyright review - what needs to be done?
WHAT does the "Gowers Review" on intellectual property mean for freelances? The assertion in March's Freelance that the answer is "not much" upset some. Mike Holderness, of the Authors' Rights Expert Group, gives his view.
First, it's a disappointment that Gowers ignored the clear, constructive and necessary proposals the NUJ made, which are at www.londonfreelance.org/ar/gowers.html But our immediate task is to respond to the recommendations he did make. Some are concerned about the Review's proposal to ease use of so-called "orphaned" words and pictures and what this might mean. It is true that this would be serious if, as some of the "copyright's soo old-fashioned maan" brigade would like, it meant a law allowing anyone to use a picture if they'd failed to find out who to ask, after not trying very hard.
But this is not something the UK government can do. It would breach international law: the Berne Convention on the rights of the author; and the trade-related intellectual property (TRIPS) agreement of the World Trade Organization. More to the point, it would breach European Union law - which is enforceable against the UK government in years, rather than in decades.
This isn't just my opinion. The UK government's Patent Office, which oversees copyright, is as a result of the Review renamed the UK Intellectual Property Office (UK-IPO) on 2 April. It disdainfully notes the current illegality of the Gowers proposal in its summary of the Report: "recommendation is to the European Commission". Or: "not one of ours, guv". (See www.patent.gov.uk/policy/)
And if the Commission were to decide to spend years on an EU Directive to change the law just to humour Gowers, we are confident that, with other trade unionists in joined-up Europe, we could beat it.
Gowers recommended drawing up guidelines for what would constitute a reasonable search for an author to ask for a licence. The IPO says it won't bother thinking about that unless or until the EU Commission decides to act.
Another cause for concern is that the UK government might change the law to permit including words and pictures in "parodies". That could get messy if changes to the law were sloppily worded. It is not clear to us that such an "exception" to copyright would be legal under EU law, unless there are parodies that do not "conflict with the normal exploitation of the work".
The IPO will hold consultations on this soon, and the NUJ, with other creators' organisations, will be in there warning loudly of the dangers. The same applies to proposals on private copying: we shall argue that this would be legal only if creators receive fair remuneration. We shall be reminding the IPO that the point of this was to regularise home taping of TV programmes, and that any sloppy wording that created a wider exemption than that is very likely against EU law.
The IPO says the proposed wider exception allowing "transformational and derivative works" - which we think was Gowers trying to be cool with the electroclash mash-up massive - would also require an unlikely change in European law.