Copyright

Q4. Is there evidence of areas where the UK copyright framework does not deliver the
optimal outcomes?

do established rules or practices obstruct research and innovation?

Yes, UK copyright framework does not deliver the optimal outcomes and needs reviewing for the
digital age!

To confirm this see the source with the title: Driving UK Research. Is copyright a help or a
hindrance?
http://pressandpolicy.bl.uk/imagelibrary/downloadMedia.ashx?MediaDetailsID=628

To make it more concrete, here some keypoints from the three first statements in this document ( all
statements in this document are relevant for this IP review- and not just to Q4- !).
The first statement is from Professor Lionel Bently-(Member of the Wittem Group)- .He calls for an
extension to fair dealing provisions to bring them into line with the fair use doctrine.
The second statement is from Professor Nick Cock, some keypoints of him are:
• The difficulties of applying fair dealing provisions in the study of music and sound recordings.

• The uncertainty because, fair dealing allows to reproduce a small proportion of a copyright
work but the definition of small is not clear.

• The ignorance on the law in part of researchers, publishers and right holders a online
document of guidance is needed
• The fundamental contradiction between copyright law and public access to the cultural
heritage, and that this has been lost sight of discussions of revenues. After all, recordings that people
cannot access create no revenues for anyone”. He gives an example on sound recordings for this
issue.
• The Fundamental Problem according to him is that: “copyright is built on an inadequate
concept of intellectual and artistic creation. Virtually all scholarship and a great deal of artistic
practice involve the creating re-working of existing praxis.

In the third statement Dr. Estelle Derclaye statement is that the current UK copyright law for teachers
and researchers is in some ways inadequate ( use of film or sound recordings) and in many ways very
complicated:
• Problems with the "non commercial condition", Is a university professor teaching for
commercial purpose when the university he teaches at is funded partly with public and partly with
private funds? According to her the law does not give a clear answer to this question.
• According to her, teachers need to be super-experts in copyright law in order to comply with
educational exceptions. For example to make a Power Point Presentation using a variety of works.

[As a subscriber of the The Göttingen Declaration on Copyright for Education and Research
http://www.urheberrechtsbuendnis.de/index.html.en
I support the following:
In a digitised and networked information society, access to global information for the purposes of
education and science must be guaranteed at all times from any place.]
Q5. Is there evidence to suggest that the current framework impacts the production and
delivery of goods and services which consumers want?

e.g. derivative and transformative works

development of new goods and services

This source seems to give an interesting overview, especially from the “consumers”
-(nowadays more and more ”produsers”) - point of view.

http://a2knetwork.org/reports2010/uk

and based on this Uk is one of the worst-rated countries.

See here: http://a2knetwork.org/sites/default/files/IPWatchList-2010-ENG.pdf
The worse ranking of the UK ( in 2009 and 2010) is also in the above E.I.P.R. 2010, 32(11), 582-590)
mentioned.

For background information to this source see:

http://a2knetwork.org/appendix-biographies-2011-contributors

Saskia Walzel( the policy advocate at Consumer Focus) also wrote this recently:
http://zine.openrightsgroup.org/comment/2011/fair-use-rights-in-the-uk...-it%E2%80%99s-the-80s-
all-over-again

Q9. To what extent are the international rules around copyright more or less important than
those in the UK? How should the UK approach this matter?

do international frameworks adapt effectively to support innovation?

Q 1. Is there evidence from other national frameworks to suggest how the UK (and EU)
copyright systems could better support innovation?
• e.g. comparisons with the USA’s system (including "fair use") along with other
jurisdictions in Asia and Europe.

Some keypoints from the research paper with the title: Is "fair use" an Option for U.K. copyright
legislation? http://www.wirtschaftsrecht.uni-halle.de/Heft71.pdf

The fair dealing defence is seen as to be:

• rather rigid and complex

The Features of a fair use test are:

• Flexibility
• Breadth
• Simplicity
(This features entail also disadvantages, like:
• uncertainty and unpredictability).
And A simple fair use test is inconsistent with:
• art. 9 (2) Berne Convention
• art.13 TRIPS
• Directive 2001/29/EC
• And judicial attitudes towards the interpretation of copyright exceptions need to change, to
benefit from the features of a fair use test. It is questionable if a mere introduction of a fair use test
lead to such a change.

In their opinion the fair dealing provisions should not be replaced by a simple fair use test. There
suggested approach is that judges should construe the fair dealing defence more liberally (a recent
example is mentioned in the source).

More other examples ( “cases”) are to find in: The European Intellectual Property Review 2010
(E.I.P.R. 2010, 32(11), 582-590). This paper takes an insight especially into the “criticism and review
“ aspect of the fair dealing provision, although considering “cases” which have not -yet- reached a
court of law in the UK.

Some more interesting references concerning international (EU) rules out of the :

From the Journal of Intellectual Property, Information Technology and E-Commerce Law

Limitations: The Centerpiece of Copyright in Distress: An Introduction

http://www.jipitec.eu/issues/jipitec-1-2-2010/2604/JIPITEC%202%20-%20Dreier-Limitations.pdf

Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under
Directive 2001/29/EC
http://www.jipitec.eu/issues/jipitec-1-2-2010/2603/JIPITEC%202%20-%20Guibault-
Cherrypicking.pdf.pdf

The International Three-Step Test: A Model Provision for EC Fair Use Legislation
http://www.jipitec.eu/issues/jipitec-1-2-2010/2605/JIPITEC%202%20-%20Senftleben-
Three%20Step%20Test.pdf