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Thursday, 9 August 2012

Lamb comforts Parliamentarians: to ERR is human

One of the legal developments which has been quietly creeping along in the wake of London's long summer of royal celebrations and Olympic festivities is the progress of the Enterprise and Regulatory Reform Bill -- in particular clause 55, which would amend, and clause 56, which would provide powers to amend, the Copyright, Designs and Protection Act 1988.  If the Enterprise and Regulatory Reform Bill were a piece of US legislation, everyone would be very sensitive about the fact that the initial letters of Enterprise and Regulatory Reform, omitting the word 'and', come out as ERR. Readers may have better ideas.

Anyway, since so many members of the IPKat team seem to have been spending the summer watching the royal celebrations and Olympic festivities unusually busy in their pursuit of IP excellence, this Kat is pleased to report that the following piece has been commissioned from his friend Melanie McGuirk (Intellectual Property Partner at Manchester Solicitors Pannone LLP). Melanie writes:
An update on clauses 55 and 56 of the Enterprise and Regulatory Reform Bill

Following some interesting recent debates in Parliament, I thought it would be worth providing a summary of the clauses and an update on their status. First I shall deal with clause 55, which would allow artistic works exploited through industrial processes the same copyright protection as other types of work, and then tackle clause 56, which would allow exceptions to copyright infringement to be amended by the Secretary of State, subject to the approval of Parliament. I will also make brief mention of some additional clauses which would further amend the  Copyright, Designs and Protection Act 1988.

Clause 55

Section 52 of the Act reduces the period of copyright available for works which are reproduced using industrial processes; in such cases, copyright exists only for 25 years from the date when such reproductions are first marketed, whereas copyright usually lasts until 70 years after the death of the author.

Alongside Romania and Estonia, the UK is only one of three EU Member States which makes such a distinction. If clause 55 of the new Bill is enacted, section 52 and all references to it would be deleted, bringing protection for copyright in items such as furniture and jewellery into line with the rest of the European Union.

When the provision came before Common’s Bill Committee, it was acknowledged both that the change has drawn the support of well-known figures in the design industry such as Sir Terence Conran. However, it has also caused concern amongst those who currently manufacture unlicensed replicas of classic designs. For the latter, Norman Lamb, Minister for Employment Relations, Consumer and Postal Affairs, offered reassurance. He stated that transitional provision would be made to allow sellers sufficient time to assess which replicas might infringe copyright, seek permission from copyright owners where needed, and sell any existing stock which would otherwise infringe.

Clause 56

Clause 56, which would permit the Secretary of State to amend the exceptions to copyright infringements, triggered more debate than clause 55 at Committee. It seems that the original purpose of clause 56 was to address a technical issue. There are occasions where the exceptions may need to be amended to implement EU law or to deal with matters arising out of such implementation; there is a power to make such changes using a statutory instrument under section 2(2) of the European Communities Act 1972.

The exercise of this power is subject to Schedule 2 of the 1972 Act. This provides at paragraph 1(d) that no new criminal offence punishable by more than two years imprisonment can be created; and therefore if such a power were used to remove an exception, creating an offence of the excepted act, in such cases only a maximum penalty of two years imprisonment rather than 10 would be available.

Will steakholders find Lamb to their taste?
Clause 56 as drafted would give the Secretary of State the power to implement EU-wide changes to copyright law without the risk that the criminal penalty for such clauses would need to be reduced to two years. While it might be expected such a provision would be welcome in the creative industries, a range of stakeholders had expressed concern that the broad drafting of clause 56 would allow exceptions to copyright infringement to be created and modified without full parliamentary scrutiny.  These stakeholders no doubt accept that the copyright exceptions can be and are amended by statutory instruments.  The argument could however be run that, were these statutory instruments to be used in order to implement a specific objective which had been scrutinised by Parliament, if the 1972 Act were used, that would be to implement an objective which had been scrutinised by the European Parliament. The statutory power referred to in clause 56 would however be to implement any objective which the Secretary of State decided on and Parliament had simply approved, rather than debated and amended in great detail.

The Committee considered two amendments aimed at limiting clause 56 to its original purpose. Norman Lamb successfully argued that such amendments would be too narrow. He reassured the Committee by confirming that an impact assessment would precede any specific amendments, reminding the Committee that any amendment would need to be approved by both Houses. He persuaded 10 of the remaining 16 Committee members that neither amendment should be made.

However, if the questions put to Baroness Wilcox (Parliamentary Under-Secretary for Business, Innovation and Skills) in the House of Lords are anything to go by, those copyright holders concerned by clause 56 are not short of sympathisers to voice their concerns in Parliament, and clause 56 may yet be amended either in the Commons or the Lords.

Additional amendments

The Committee also considered and accepted further clauses to amend the Act. These amendments followed the Government's response to the IPO consultation on modernising copyright and relate to the licensing of "orphan works"; the extension of collective licensing and the implementation of Directive 2011/77 (which amends Directive 2006/116 on the term of protection of copyright and certain related rights). 

2 comments:

Francis Davey said...

I am still at a loss to know what we - as in the general public - get out of clause 55. As far as I can see it increases protection for certain mass-produced items which is almost certain to put prices up. That benefits us all how....?

Lionel Bently said...

IPKat readers may be interested in the letter published in The Times on 31 July from seven law professors opposing the proposed repeal of section 52. The letter (before editing down) read:

Dear Sir,
If enacted, Clause 56 of the Enterprise Act and Regulatory Reform Bill (as reported) would repeal section 52 of the Copyright, Designs and Patents Act 1988, so that copyright in the artistic features of mass-produced products will subsist until seventy years after the death of the designer, rather than the present period of 25 years. No persuasive policy reason has been offered for such a change, whereas the current 25 year limitation ensures that copyright protection does not extend further than the special system of protection offered to designers who register their designs.
One practical effect of the reform will be to make replica versions of classic designs, such as Jacobsen’s ‘Egg’ chair or Breuer’s ‘Wassily’ chair, unaffordable to many consumers until they return to the public domain in 2041 and 2051 respectively. But others will be affected too: follow-on designers will need to ensure that their works do not step on the toes of their older predecessors, while publishers of books on designs, and websites using images of these designs for illustrative purposes will need to obtain many more permissions than hitherto. While these social costs are clear, there is no evident public benefit from the reform.
The reform has been justified as a response to a decision of the European Court of Justice in Case C-168/08, Flos v Semararo, which itself can be seen as a misinterpretation of various EU Directives in the area. In particular, during the passage of the Designs Directive 98/71, the Government secured modifications of the legislation specifically to permit the retention of the 25 year term. The UK did not intervene in the proceedings in Flos, and thus the Court appears to have proceeded without being fully informed. In the circumstances, the appropriate action would thus appear to be to wait for a further opportunity to clarify that the law is what it was intended to be.
In contrast with the repeated rounds of consultation over reform of copyright exceptions following the Gowers and Hargreaves Reviews, there has been no consultation at all. In our view, the change is intrinsically undesirable, but also goes well beyond what would be required to achieve the Government’s limited aim of implementing Flos. The freedom to limit the extent of protection of copyright in designs, if not its length, survives that decision. A full consultation would enable those likely to be affected to object, and a more measured response achieved.

Yours faithfully,

Lionel Bently, Herchel Smith Professor of Intellectual Property Law, University of Cambridge

Tanya Aplin, Professor of Intellectual Property Law, King’s College, London

Ronan Deazley, Professor of Intellectual Property Law, University of Glasgow

Graeme Dinwoodie, Professor of Intellectual Property and Information Technology Law, University of Oxford

Rt Hon Sir Robin Jacob, Hugh Laddie Professor of Intellectual Property Law, University College, London

Martin Kretschmer, Professor of Information Jurisprudence, Bournemouth University
(from 1 November, University of Glasgow)

Hector MacQueen, Professor of Private Law, University of Edinburgh

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