The UK System of Copyright Exceptions - Essay Example

Intellectual Property Law

Discuss the UK system of copyright exceptions and their effectiveness in allowing uses by educational establishments and the public which would otherwise be infringements.

Introduction

In general, there are 2 exceptions in which copyrighted material can be used. Firstly, it can be used when the copyright-holder itself gives permission to utilise the particular material either through a license or through some other means including authorisation. The second situation is a situation in which the law would provide support which is very limited to do activities with regards to a certain copyrighted material to a certain extent and to a very limited period for certain purposes only. These activates if not used for the mentioned purposes may be conspired an infringement. Some of the examples of copyright exceptions include fair use and compulsory licensing (Hargeaves 2011).

Body

Often questions are being asked for the basis or justification of such copyright exceptions. Often it can be noted that the transaction costs with a particular copyright are too high and often difficult because there may be too many copyright holders, too many copyright users or both. An example of this is when there are too many songs to be used by too many users across the globe making it difficult to keep several transactions running. Hence, in case if it is difficult to keep a watch on so many transactions it would be ideal to leave a narrow exception. An important factor to be taken into account is that the exception should be outside the normal market of the material, and ensuring that the copyright holder can still use the market. Take for example, the case of parodies. There are actually a very few people who may be interested in doing parody, and usually the number of parodies that may be present for a particular work are reasonably low. However, if a particular artist is interested in doing a parody, there are chances that the copyright holder may not allow him to do the parody with relation to his/her work as he may feel that it would defame his or her work. However, parodies are also required in society in order to ensure that each individual has the freedom of speech and make comments that are subject to public debate, without actually defaming the work. Hence it is appropriate to permit parodies to avoid taking licenses from the copyright holder, without actually interfering with the marketing of the work (Hargeaves 2011).

Another reason for providing exceptions would be for the dissemination of information within a reasonable extent such that it does not unduly interfere with the rights of the copyright holder. For example, libraries can disseminate information in the since that people can take photocopies of the book provided that they are using it for an academic cause and do not use it for public circulation. This is because libraries may be considered as storehouse and preservers of information and anybody who wants a particular material that may not be freely distributed in the market can visit a library, search for the book and take a copy of a few pages of the book. Here, the library would not be within the normal market exploitation of the work and hence this exception would be justified. Likewise would be the exception of news reporting and critics as the same is made exclusively for the purpose of public information and not for working the film in public or making profits of the same (Burrell 2005).

In the US, the fair use clause does not mention the list of exceptions but considers the various factors that could form a part of determining the fair use criteria. These include:-

• The very purpose of the fair use
• Nature of the work that has a copyright
• The amount of the work being used
• The impact the use is going to have over the normal use of the copyrighted work by the legitimate holder (Stanford 2005).

The fair use clauses of the US has been developed mainly based on case law, whereas in the UK both case laws and statutes have affected the creation of copyright exceptions. In the UK, the fair use criteria is not well-defined and is often made based on a case-to-case basis. The main intentions of having copyright exceptions if for research and educational purposes and to promote innovation in society. According Ian Hargreaves, the British law may permit the use of these exceptions although the international law may actually not permit. Even the European Union law actually classifies the exceptions into lists. With regard to each member nation of the EU, they would implement the exceptions to various degrees; however, they would not create additional exceptions. Even in the UK, the copyright exceptions are restrictive in nature compared to the US due to which parody and archiving may be difficult. Unlike in Australian law, parodies are considered an exception (Stanford 2005).

The EU has tried to overcome any loopholes in copyright exceptions to prevent the use of technology. Further, the EU laws on copyright exception are not as flexible as the US laws, as they are subject to implementation by the national laws of each member state. Due to rigid applications of copyright laws, research may be hampered and innovation prevented from further developing. Also by having rigid laws, there is a disconnect between the development of technology and copyright exceptions. For example with technology, people are able to access copyrighted material from across the world. However, the EU has not changed the status of copyright exceptions due to which people are unable to understand the regulations in place and hence, such regulations become ineffective in preventing copying of protected content.

The Google founders have said that the laws of Britain would have never permitted their company to kick start business had they chosen their base to the UK. The US laws allows certain amount of breathing space to companies and also offers certain trial and errors procedures along with stronger risk-taking. UK laws are becoming more and more outdated due to which taking backups and shifting formats has become illegal (Macmillan 2007).

However, the UK companies are apprehensive of the American law in the UK mainly because it would promote unlicensed copying, increase litigation costs and create confusion amongst the sellers and buyers of the copyrighted material. Another issue noted that in spite of the UK laws not being very supportive of the fair use criteria, they are equally effectively applied by the British company that function in the UK or the US (Burrell 2005).

Gower has put forth a few recommendations before the government to implement as copyright exceptions. However, the same is still not implemented after 5 years. Thus there is a failure on the part of the government on copyright framework. Hence, though the UK government has been able stand up to the challenges and prove to be effective to a good extent, there is a need to develop new laws and workflows for copyright exceptions (Burrell 2005).

Conclusion

Currently, the UK government is trying to over-regulate the activities that may be performed under the copyright exception. No doubt the UK copyright exceptions have not acted as a restrain, but in several instances, the UK law has not been flexible. There is no justified basis for applying the copyright exceptions, and the government is not considering becoming more flexible at implementing parody, non-commercial research, archiving and format shifting as copyright exceptions. Besides, though the UK laws appear to be stopping abuse of copyright, with a growth of technology, it would become more and more tempting for the users to g-ahead to do something illegal. This it can be seen that if reasonable fair use clauses are not implement, then it would be difficult for such laws to succeed. However, Hargreaves is against setting up and liberalising the fair use clause and in a legal environment like UK may be difficult to adopt (Neill 2011).