Copyright law began in England in 1710. At that time, copyright only limited you from copying—it didn't limit you from making a derivative work, such as a translation or a fan homage (such as the many spin-offs of Gulliver's Travels that flourished after its 1726 publication). It didn't attempt to control your personal use of the products in which copyright works were embodied (books had no DRM!). If you wanted to comment on a work, or parody it, copyright owners had no say in how much of the original work you could use, or how widely you could share or perform your commentary.
Wouldn't it be great if copyright law was like that again?
The United Kingdom had the chance to accomplish something like that in this year's round of reforms to the Copyright Act, some of which took effect on 1 June. The long-awaited outcome of the 2011 Hargreaves Review of Intellectual Property and Growth, these modest reforms facilitate the use of copyright works for research and private study, text and data mining, education and teaching, archiving and preservation, use in public administration and in producing accessible formats for disabled people. Importantly, rightsholders are also prohibited from clawing back these new user rights by using small print in contracts or terms of service.
But although these limited reforms are overdue and welcome, they don't do anything for the home user who wishes to make personal copies of copyright works, or to adapt them and share those adaptations non-commercially. As of today, a British user who rips a CD onto their own personal music player, or who uploads a parody music video to YouTube without permission, remains a copyright infringer.
Some of these shortcomings were to have been addressed as part of the copyright review through two additional regulations. These would have allowed personal copying for private use, slightly expanded the existing right of quotation, and authorized "fair dealing" with a copyright work for the purposes of caricature, parody or pastiche—as until now, the United Kingdom has had no parody copyright exception.
Unfortunately however, at the last moment these amendments were unexpectedly pulled by the parliamentary committee that was responsible for finalizing them. They will now not take effect until October at the earliest, and there remains a possibility that rightsholder lobbyists will succeed in having them watered down before then.
Even assuming that the new personal copying right and the parody right are eventually passed with no further amendments, they still do not go anywhere near far enough. Let's take a look firstly at the personal copying right. It allows you to copy from your own lawfully obtained original onto another storage medium, including an online storage area—but it stipulates that this must be "accessible only by the individual (and the person responsible for the storage area)". How about an online cloud storage account that you share with your family, perhaps on a shared computer or gaming console? Sorry, you're out of luck.
What about if the item that you wish to copy is protected by DRM? Thankfully the lawmakers thought of that, and have provided this delightfully simple procedure:
296ZEA.—(1) This section applies where an individual is prevented from making a personal copy of a copyright work, or is restricted in the number of personal copies of it which may be made, because of a restrictive measure applied by or on behalf of the copyright owner.
(2) That individual, or a person being a representative of a class of such individuals, may issue a notice of complaint to the Secretary of State.
(3) Following receipt of a notice of complaint, the Secretary of State may ...
[525 words of legalese omitted here.]
So if you wish to make a private copy of a purchased item and you can't due to DRM restrictions, all that you have to do is to write to the government, wait for an undefined period (months?), and hope that eventually the rightsholder will provide you with alternative means to make the private copy that the law allows you to make. Alternatively, you download a pirated copy of the same item you had purchased, thereby turning yourself into a copyright infringer. Which would you choose?
Next let's take a look at the parody right. If this new right serves any purpose at all, it should be able to authorize the kind of parody and mashup videos that British Internet users already share online. One of these referred to in the government's own impact assessment is Newport (Ymerodraeth State of Mind), a hilarious take on the Jay-Z and Alicia Keys song, Empire State of Mind, with completely original visuals and lyrics that poke gentle fun at Welsh culture and language.
Unfortunately the impact assessment goes on to doubt that this would fall within the new parody exception, in that "although the lyrics of the song and accompanying video were parodied, the underlying music track and arrangement were unchanged". The government further claims in a guidance document that "the use of a few lines of song for a parody sketch is likely to be considered fair, whereas use of a whole song would not be and would continue to require a licence," and that "it is very unlikely that someone could copy a whole unchanged work, without permission from the copyright owner."
Clearly, this makes the whole exception rather useless—since it is very often necessary to make use of an entire copyright work in order to produce an effective parody.
In the United States, such a mashup would fall squarely within the scope of the fair use right. Fair use is a flexible standard that enables a broad range of uses that satisfy a set of four factors, including the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect on the economic interests of the copyright owner. Although a growing number of other countries are also adopting fair use in their copyright law, the introduction of a similar exception in British copyright law was specifically ruled out by the Hargreaves review.
But EFF contends that fair use—or something similar—is a vital component of modern copyright law for any country, because only a fair use right is flexible enough to adapt to allow innovative, socially beneficial uses that lawmakers may not have thought of when drafting copyright legislation.
News from last week provides an apt example. The decision of the European Court of Justice in the case of Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others, determined that copyright isn't infringed by a user simply browsing the Internet.
This may seem too obvious to need stating, yet in the absence of a fair use right, a tortuous path of reasoning was required to reach this finding—including analysis of the meaning of a "temporary copy", whether the copies made in the course of Web browsing were "transient or incidental", and whether they were "an integral and essential part of a technological process."
As a result of this decision, viewing a Web page on your computer or mobile device is not an infringement. But if you save a copy of the page to your desktop to view offline later? You're an infringer.
This illustrates exactly why the United Kingdom needed to go further than it did, and should have introduced a broader fair use right that would have covered fair personal uses such as these, as well as mashups and remixes that are not covered by the proposed narrow parody right.
Fair use is not just one of those odd American quirks that Britons like to laugh about (though marshmallow creme—that's a different story). Fair use is actually a core requirement for a modern, flexible and adaptable copyright law in the Internet age—as more and more countries around the world are realizing.
It's rather sad that whereas in the 18th century you could have gone wild mashing up Gulliver's Travels with Robinson Crusoe, the 21st century Briton who wishes to mash up X-Men with Godzilla still needs to be much more careful if they are to avoid claims of copyright infringement. That's a parody in itself.