COPYRIGHT
of the proposal, Adam Rendle, a lawyer at Taylor Wessing LLP, says it’s unclear to him who a “lawful owner” is in the online world.
“Traditionally, you might buy a CD, rip it onto iTunes and you own the CD on which the music is contained. But it’s unclear how the exception will apply to downloads. I don’t think you own an MP3 in the same way as you own a CD—you license that MP3, a licence that typically allows you to reproduce the fi le on to a device. It’s not like a CD on your shelf. Again, cloud storage, you don’t own it—you have a licence to use it,” he says.
“THE RECORD COMPANY HAS 12 MONTHS TO MAKE USE OF OR LOSE THE COPYRIGHT—THE CHANGES HAVE BEEN NICKNAMED THE ‘USE IT OR LOSE IT’ RIGHT.”
criticism, review or news reporting. Now, people can more freely use quotations of any work, provided that the use is “fair”.
While the government has described this as a minor amendment, Rendle says this may have the biggest practical implications for copyright owners. From now on, there will be a more liberal approach to the use of quotes such as text extracts, hyperlinks, tweets, video clips or music samples.
Joel Smith, partner at Herbert Smith Freehills LLP, says: “Potentially, this is a very, very broad exception. T e idea is that there will be a more generous fair dealing test but we don’t know how it will be applied.”
He adds: “It seems to me that the government intends for downloads to fall under the exception, but it will be interesting to see how it draws the distinction between what can and cannot be privately copied.”
T e ambiguities in the private copying provision could actually work in favour of copyright owners.
If it’s not clear that a download is
lawfully owned—and therefore qualifi es under the exception— content owners could try to narrow the provision.
Perhaps more interestingly, the impact of the copying provision on specifi c areas of the copyright industry may vary. Even if individuals have more scope
to copy protected works, will music and fi lm producers really care? Illegal copying is nothing new for them, and many rights owners have long experience when it comes to fi ghting illegal fi le-sharing. T e exception may prove more problematic for newer industries such as e-book producers, which have not suff ered
from copying to the same extent and may have more to lose.
Fair dealing
T e private copying exception poses some interesting questions, but it is merely one of nine exceptions for copyright owners to contend with. A second prominent change relates to fair dealing with quotations, which is no longer limited to
Parody
Clearly a hot topic, fair dealing extends further than mere quotations. T e third major exception is a new copyright defence under English law: fair dealing with parody, caricature and pastiche. For years there has been a fi ne line between the rights and wrongs of using copyrighted works to poke fun, to mimic and to provoke a smile.
“T e introduction of this exception has been a long time in the making,” says Rendle.
Smith disagrees: “I’m somewhat surprised it made it in. T ere are some areas in music where there are debates about whether ‘mashups’ copy music, but in many areas it is not an issue.”
Determining what constitutes parody, caricature or pastiche will not be easy, however. T e government has not explained the provision in detail, so it will likely be up to the courts to decide.
As with many of the nine provisions, the parody defence poses some tough questions for rights owners in a world where the government is seeking to place a higher value on the role of
the consumer. Smith says the balance has
Traditionally, the fair dealing test assesses whether the use competes commercially with the original work, whether too much has been taken and whether the original work has been published. T e government rejected calls to reform the test, but there is expected to be a gradual reshaping of it as courts apply the exception.
“T e courts won’t radically change the current fair-dealing test,” says Rendle. “My query is will the three-step test have a more explicit role than it has to date in UK law—identifying whether there is a special case in which the quote can be used and whether the second two limbs of the test would serve to limit it in any way.”
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Trademarks Brands and the Internet Volume 2, Issue 2
www.worldipreview.com
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