Sunday 26 June 2011

IPO opinions – inside or outside copyright?

One concrete recommendation of the Hargreaves Review is that, in an effort to reduce uncertainty and confusion about what infringes copyright, the UK government’s Intellectual Property Office should be able publish statutory opinions. 

Hargreaves proposes that these official opinions would clarify copyright law, specifically exceptions to copyright, where new circumstances have arisen, or where there is evidence of confusion about what copyright allows.  While these opinions would not be binding, the courts would have a duty to take account of them in cases to which they are relevant.

This could be a good idea where the question of what does and does not infringe can be answered by looking no further than the copyright legislation.  The IPO would interpret the statutory provisions, a task for which it could be well suited (if it can be guaranteed lobby-proof, but that is another issue). 

However the present reality is quite different.  To answer the most difficult digital and online copyright infringement questions the courts often have to look beyond the copyright legislation.  This is largely a result of the very imbalance in copyright protection that Hargreaves has identified and says must be fixed.  The courts have to fish in other waters for ways of reining in copyright’s digital overreach or, in the other direction, of catching perceived bad online actors whose activities do not fall neatly within the copyright statutes.

Take format-shifting.  It is often suggested that millions of people in the UK infringe copyright - even if only technically – by copying legitimately acquired music tracks from CDs to MP3 players via their computers.  What could an IPO opinion usefully say about this? 

In June 2006 the BPI (the representative voice of the UK recorded music business), making submissions to the House of Commons Culture Media and Sport Committee, said that it would not pursue litigation against end-users who did this for their own private use.  An opinion would have to consider whether a forbearance to sue can amount to consent sufficient to negative infringement, and whether the BPI’s statements (both its written memorandum and its oral evidence) did amount to such consent.  The opinion might also usefully consider whether an estoppel had arisen, (a legal doctrine that would prevent the BPI withdrawing at will any consent or forbearance), and whether the estoppel was permanent or time-limited. 

This analysis is at the very edge of and, in some respects, outside the boundaries of the copyright legislation.  It is far removed from the scope of a statutory exception.  Yet in the present state of copyright legislation, the BPI statement from 2006 is one of the most relevant points to consider if someone wants to know if format-shifting is legal in the UK.  Would the IPO relish the task of taking that on?

Similarly courts considering digital copyright infringement issues in the UK and Europe have grappled with, and sometimes deployed, legal doctrines including implied consent, derogation from grant, freedom of expression under Art 10 European Convention on Human Rights and its equivalents, involuntary copying, public interest or benefit, the EU Ecommerce Directive and accessory liability.  

If and when the scope of copyright is corrected  there should be less need for the courts to look for answers outside the four corners of the copyright legislation.  The same would apply to IPO opinions.  Does this suggest that copyright scope has to be fixed before the IPO can perform a useful role in publishing statutory opinions?

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