Copyright in a Post Brexit World

Craig Statham 21st-century items, Digital resources, Illustrations and photographs

On 13th October the National Library of Scotland hosted a Special Libraries Association event that saw Professor Charles Oppenheim give a talk titled ‘Copyright in a Post Brexit World’. After a brief introduction by John Coll, Head of Access at the Library, began by giving an overview of copyright:

  • copyright basics
  • what can be copyrighted
  • how long copyright lasts
  • ownership
  • public domain
  • copyright restrictions
  • infringement of copyright
  • licences, exceptions and Creative Commons
  • orphan works
  • Technological Protection Measures (TPM)IMGP1928

After this introduction Professor Oppenheim began to study certain aspects in greater depth. In 2014, for example, some changes were made to copyright law in the UK:

  • CDs already owned can be copied for private use (currently being challenged by music companies)
  • fair dealing exceptions for parody/pastiche (this will require to be tested in court)
  • work can be text and data mined
  • accessible copies can be made for those with visual impairments, dyslexia, or physical disability (does not apply if a version is available commercially)

This final point led Professor Oppenheim on to discuss the Marrakesh Treaty. This treaty is an attempt to make copyright less restrictive for those with disabilities. It has encountered opposition – from Germany and Italy due to pressure from rightsholders, and from the UK because its own legislation is already more generous than that in the Treaty. Professor Oppenheim then summed up his thoughts on the Marrakesh Treaty:

  • disabled users in the UK will not suffer as the UK’s legislation is already very generous
  • disabled users in the EU are due to the UK’s political point scoring against the EU
  • however, the European Court of Justice has the right to implement the Marrakesh Treaty without the support of these three countries, and will likely do so

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So how, in Professor Oppenheim’s view, will the UK’s laws be affected in the wake of Brexit?

  • as long as the UK is in the EU, all EU directives will have to be complied with by converting them into our legislation
  • UK courts will need to comply with European Court of Justice decisions
  • if/when the UK leaves the EU there will necessarily need to be some consistency with EU laws in order to allow business with EU countries
  • it is in the UK’s interest to engage with the process of developing the new EU Directive

The new EU Directive is currently in draft form. Professor Oppenheim gave his thoughts on some aspects. These included:

  • a new 20-year right for publishers of press publications to authorise the reproduction and ‘making available by wireless means’ extracts of their publications. This has already been implemented in Germany and Spain and has led, through Google dropping excerpts of newspapers, to the collapse of some newspapers. It is, therefore, unclear why this is being proposed
  • a requirement for a more active role by ISPs to deal with infringing content by more effective use of content recognition technologies. This is another controversial proposal, as ISPs and hosts object strongly to getting involved in policing their users’ activities.
  • an EU-wide mandatory exception for text and data mining. The proposal is weaker than the UK’s, as it is restricted to universities and not-for-profit bodies only.
  • provisions dealing with fair remuneration in contracts with authors and performers. This proposal has been generally widely welcomed.

Professor Oppenheim noted further that the draft Directive had been widely criticised for being ‘backward looking, letting rightsholders dictate things, and not taking into account either user needs, or the changes in culture and technology that has occurred over the years’. It will probably be amended in the European Parliament. He then went on to give a summing up, giving his views on how the future may pan out for copyright – in his words ‘crystal ball gazing’:

  • legal problems associated with Brexit are so formidable that exit will be in the long-term, if at all
  • the UK is viewed by other Member States with some contempt over its attitudes to Directives because of its euroscepticism over the Commission’s powers to introduce Directives has meant it has been a largely negative influence on EU decision-making over many years. So, many EU Member States will be pleased that the UK is out when it does exit, and they can get on with developing Directives more quickly.
  • However, Professor Oppenheim fears the worst of all worlds – we are out of the EU with no influence, but will have to align our laws with those of the EU and the ECJ
  • Many Directives related to copyright that have been introduced into UK law via Statutory Instruments will not be repealed, although it may be that each one has to be gone through and judged on a case-by-case basis

Although the talk was a serious one, and as such drew an audience from across the UK and Europe, Professor Oppenheim did introduce some light-hearted moments. Copyright can, he noted, only be attributed to a human. So if a monkey or an octopus takes a photograph it cannot be subject to copyright.

And he pointed out one of the great oddities of copyright law in France. The Eiffel Tower is out of copyright and can be photographed. However, the lighting that was added in recent years is in copyright and cannot be photographed. As such, the Tower can be lawfully photographed during the day when the lights are off, but it is against the law to photograph it at night when the lights are on.

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Professor Oppenheim with John Coll, Head of Access at the National Library of Scotland