Wherever we stand on the issue, one thing we all know is that copyright law is subject to intense and extended debate. Some say it should be relaxed, some say it should be tightened up, but the law doesn’t actually change without a big debate.
But what is this?
“28ZA Power to add or remove exceptions to copyright
(1) The Secretary of State may by regulations amend this Chapter to
provide that any act is or is not an act which may be done in relation to
copyright works notwithstanding the subsistence of copyright.(2) Regulations under this section may—
(a) make supplementary or transitional provision;
(b) make consequential provision, including provision amending
any enactment or subordinate legislation passed or made before
this section comes into force.(3) The power to make regulations under this section is exercisable by
statutory instrument.
The UK is proposing that the Secretary of State (aka a here-today-gone-tomorrow politician) should be able to alter copyright law whimsically, adding or removing exceptions to copyright by means of a Statutory Instrument. These are a mechanism in UK lawmaking whereby changes can be made without a full debate and vote in Parliament.
There are lots of circumstances where SIs are the best way of achieving things, especially when things need to be done fast, but copyright law is not one of them.
Copyright exceptions are compulsory requisitions of property. Unlike compulsory purchase orders, if the government decides to give your content away via an exception, you’re unlikely to get paid anything at all. Your ability to stop people using your stuff in ways you don’t like is reduced and if the exception happens to cover something your business depends on, you’re stuffed.
In other words, exceptions need very careful consideration, not a rubber-stamp from a minister who, on recent form, is extremely unlikely to have a clue about the issues.
If that sounds dramatic, consider recent form. Exceptions have been proposed for “data mining” (which involves copying and processing vast quantities of other peoples stuff and which is well served commercial market). And for education, which as well as being an important social function is also a thriving market. The recent Hargreaves review was prompted, according to David Cameron, by Google telling him our laws are too strict. And according to copious recent evidence, as well as many people close to the process, the Intellectual Property Office, which is supposed to advise ministers on IP law, has become the vehicle for the personal ideological views of some of its civil servants.
Now someone (a civil servant no doubt) has tried to sneak a massive and hugely impactful new power for ministers into, er, the Enterprise and Regulatory Reform Bill – that well known home of copyright legislation.
Copyright isn’t a thing for ministers to dish up as a sort of free gift to companies and causes which they want to help. It is someone else’s property, and exceptions should be as narrow and sparing as possible. They should always be subject to a full debate and the onus should be on the government to prove the overwhelming benefit to society which justifies robbing people of their property.
I’m not saying that the case for exceptions can’t be made, I am saying that it needs to be done openly and subjected to a full debate and scrutiny. Something which Statutory Instruments are specifically designed to avoid and parliamentary democracy is supposed to achieve.
Sneaking this in to an unrelated bill is just a way to side-step debate and discussion – not only about exceptions to copyright but about this change too.
There’s democracy in action!
Copyright Blog 
Comments
Well I (for once) agree with you that this SI is a bad idea, though don’t agree with you reasoning. Having the ability to sidestep Parliament in this case is indeed a pretty irresponsible thing to do for such a complex issue issue that would most benefit from thorough scrutiny- and is is also fundamentally anti-democratic, given that ministers are not directly elected in that capacity, MPs are, and executive decisions are further away from the people.
But you have fallen into (what I see as) the trap of the “intellectual property” misnomer again- as I recal larguing in a previous article’s comments, it’s not de facto property, but a time-limited right of monopoly that just so happens to be tradable. But like all rights, of course it needs to be applied fairly which does indeed mean limited exceptions- it is wrong to have one law for one and another law for the other.
Well, I guess the debate about what copyright is and should be is a fundamental one which has become much more polarised in the last few years. Which is, as you say, all the more reason why changes to it require the full scrutiny and debate which goes with primary legislation. And especially because the IPO has shown itself to be somewhat less than neutral on some of these issues.
Thanks Young for such a nice debate. I have the same opinion upon the statement that “exceptions need very careful consideration” because copyright exceptions are essential requisition of property.
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