Copyright under review
THE NEARLY-FINAL debate on the Enterprise and Regulatory Reform (ERR) Bill has opened in the august setting of the House of Lords, with the first of a series of amendments dealing with the Bill's copyright provisions debated late on 6 March.
That amendment called for an annual report on copyright, to ensure that matters not dealt with in the Bill, that should have been, stay on the agenda. One example raised on Wednesday was proper protection for "rights-management information" included in the "metadata" of a digital text, image or music file,
This was a so-called "probing amendment" and was withdrawn after the responsible Minister, Viscount Younger, gave an assurance that there would be an annual review.
Lord Howarth reported that "at last, we have a working group looking at the problems that arise with metadata and digital photography. The working group is trying to find out why this stripping happens, why creators do not get paid and, above all, what solutions might be found, presumably by way of new technology but perhaps in other ways, to ensure that intellectual property is not stolen from photographers." The Association of Photographers, the BBC and the British Association of Picture Libraries and Agencies (BAPLA) are among the members of this working group.
Baroness Buscombe made the interesting point that "The UK Government will not be in a position to demand appropriate safeguards for licensing of UK copyrights by ECL in China if we ourselves do not have them in our own legislation as the Nordic countries do. Nor will UK rights holders or their representative bodies be in a strong position to safeguard UK rights abused by ECLs in foreign countries if the UK's own statute lacks the necessary safeguards."
The Nordic countries, of course, have law implementing some of the changes the government proposes - but against the background of far stronger protection for authors and performers.
The government has withdrawn the highly-controversial clause in the Bill that appeared to give Ministers new powers to extend "exceptions" to copyright - that is, circumstances in which your work can be used without permission from, or payment to, you. However, the Intellectual Property Office said weeks ago that they planned to implement the exceptions in their report Modernising Copyright (PDF here using the European Communities Act 1972, not this clause. The government's replacement for this clause simply states that they can do that, while preserving criminal penalties at a higher level than the EU standard - which is what they said they wanted 67 for, once they settled down on being able to explain it at all.
Expect several almighty battles in the near future: several over the scope of the proposed widened exceptions, and more over the devilish detail of the mechanisms for licensing "orphan works" and for "extended collective licensing" for which the ERR Bill lays the ground.
Debate continues on Monday 11 March, with Lords proposing several amendments trying to get the details of these schemes clarified. It then remains to be seen whether the government will seek to overturn in the House of Commons any sensible amendments which are passed in the Lords.
The bulk of our campaigning work, however, must now focus on the "Statutory Instruments" laying out the machinery. There is a continuing battle to offer Parliament the chance of some debate by having one Statutory Instrument dealing with one issue - not, as the Creators' Rights Alliance said in a briefing, letting the government "'bundle' a raft of changes - beneficial, neutral and harmful to creators - in one Regulation". Doing that would put Parliament in the position with which freelances are so familiar - a .
"take-it-or-leave-it" offer of contract.