Back to the Future Part Two: Are copyright laws stifling the digital future?

The EU Commission’s Vice-President for the Digital Agenda, Neelie Kroes, in her recent keynote address at the International Broadcasting Convention in Amsterdam, gave a warning that present copyright laws are having the effect of stifling the digital future.


Ms Kroes noted that "technology is three steps ahead of our legal framework" and that "today’s rules are obstructing tomorrow’s digital future". She criticised the fact that "today, broadcasters spend years on paperwork to clear licenses, so they can show material … that’s expensive enough for established players; new innovative players can’t afford it at all. Only those with patience and deep pockets can afford to negotiate that maze."

In the wake of Ms Kroes’ speech, and as touched upon in the previous edition of our Commercial Notepad, the Intellectual Property Office ("IPO") released updates to one of its publication series - "Exceptions to copyright" - that clarified some of the recent modifications to copyright exceptions which came into force on 1 October 2014:

  • Consumers will be particularly interested in the clarification that allows them to make copies of media that they have purchased in order to back-up the content or to format shift (e.g. copying a CD to play the files on an MP3 player);

  • Academics are now permitted: (1) reasonable copying or recordings and broadcasts for non-commercial research; (2) to utilise copyright materials in teaching practices such as distance learning; (3) to perform computer-based analysis of copyright material for non-commercial research; (4) to quote the works of others with greater freedom by expanding the "fair dealing" exemption; and (5) to archive copyright works;

  • Public bodies are now allowed to share some third party copyright materials online, for example, for the purposes of maintaining a public register; and

  • Artists are now allowed (albeit within certain limits) to make reasonable use of copyright material (e.g. songs, films and artworks) for the purpose of parody, pastiche or caricature. The use of the copyright material will need to be fair and proportionate and the IPO give the example that "the use of a few lines of a song for a parody sketch is likely to be considered fair, whereas use of a whole song would not be and would continue to require a license".

Whilst the amendments fall short of bridging the full "three steps" that Ms Kroes suggests legislation is lagging behind, the amendments show progress from the relevant authorities, illustrating an understanding of maintaining a sensible balance between protecting the owners of copyright material and those who may wish to legitimately use such material in certain circumstances.

The IPO has also updated publications aimed specifically at the owners of such copyright material to assist them with understanding what the changes mean practically for them.

Whilst legal frameworks will always (to some degree) have to play catch-up to advances in technology, it falls to the lawmakers to keep the ‘lag’ as small as is possible; and until legislation catches up with advances, it is important to take suitable advice on how existing regulatory frameworks apply to innovation.