The 22 December 2002 deadline for implementing the EU ” E Copyright” directive, will not be met by UK legislators, but when it does become UK law next year, what will it mean for advertisers?
Who: The UK Patent Office
When: November 2002
The UK Patent Office issued probably its last consultation document on proposed amendments to UK copyright legislation to bring it into line with the EU directive on the "harmonisation of certain aspects of copyright and related rights in the information society".
This directive was signed off in June 2001 and it was due to have been transposed into the laws of EU member states by 22 December 2002. Our Patent Office has found the task more challenging than it previously thought, however, and now says that it will endeavour to implement the directive by 31 March 2003 at the very latest. The directive sets out to harmonise the basic rights relevant to uses of copyright material in the information society and e-commerce, namely the rights of reproduction (copying) and communication to the public (electronic transmission, including digital broadcasting and "on demand" services). From that point of view it is not of direct relevance to the UK's marketers, and at first glance, other provisions which deal with available defences to copyright infringement claims look more interesting.
One specific, proposed EU-wide defence that features in the Directive and might otherwise have been leapt upon by advertisers, is a proposed defence covering "use for the purpose of caricature, parody or pastiche". In the UK, there is currently no such defence under existing copyright law. The rule for whether a parody infringes copyright is the same as for any other derivative work, namely does the parody reproduce a substantial part (in both quality and quantity terms) of the original? So on the face of it, a revolutionary change of enormous benefit potentially to UK marketers and advertisers looked to be in the offing. On closer reading of the Directive, however, this is only one of a long shopping list of possible defences which EU member states can decide whether or not to introduce into their own laws.
Some might say that such a smorgasbord of optional defences which might or might not apply from one EU member state to another is a recipe for entirely the opposite of harmonisation, but that is the regime which we will have to live with for some years to come now and there are no prizes for guessing whether the UK government proposes to introduce a new "parody" defence. No chance.
On a completely different front, namely photocopying, the Directive again looks on the face of it to be making a significant change. Indeed, some legal commentators have described the impending law changes as a "clampdown on illegal copying". Again, on closer inspection, however, it appears that the impetus behind these "clampdown" warnings may well have come from partisan quarters such as the Copyright Licensing Agency and the Newspaper Licensing Agency, whose role in life is to operate on behalf of newspaper, magazine and book publishers so as to police and extract royalties in respect of photocopying of printed works.
The fact is that under existing UK law it is illegal to take even one photocopy of a magazine or newspaper article unless what is known as the defence of "fair dealing" applies. This exonerates the copier from copyright infringement if the copying is "fair" and the purpose of the copying can be said to be research, criticism, private study, review, the reporting of current events, (except that in the case of the "reporting of current events" saving this does not apply to photographs) and within certain tight constraints, educational purposes. Although the current legislations does not say it in so many words, it has become generally accepted that none of these savings is, except possibly the "reporting of current events" exception, will operate to exonerate businesses that photocopy printed materials either for staff know-how or client information purposes. As regards "reporting current events" there is some feeling that this may assist some commercial reproduction of materials, but probably only contents pages or indexes and not the substantive material.
So against this background, will the implementation of the new EU copyright directive make any real change? The answer is no. Even when where one might have hoped for further clarification of the precise position, namely the area of the "reporting of current events" fair dealing defence, there is actually no amendment in the offing.
So far as research, private study and educational purposes are concerned, the amendments now put the business use position beyond doubt. They introduce an additional express requirement that the use must be for "non-commercial purposes" for the defence to apply.
Why this matters:
In some ways it is not a bad thing that businesses may be reminded by this new legislation of their existing legal obligations in the area of photocopying. In a similar vein, it will be no disadvantage to marketers and their agencies to be reminded that "parody" or "pastiche" is not an arguable defence to a claim that marketing or advertising material infringes copyright in an existing work. From a more positive point of view, however, it would be an interesting exercise, and one marketinglaw.co.uk will carry out over the next few months and report on to its readers, to see which EU members states do favour the option given in the new Directive and have in place a "parody" defence to copyright infringement claims.