Copyright Exceptions Gaining Ground Around The World -- But Not For The Blind

There finally seems to be a growing recognition in many countries that copyright is not fit for the digital age. In the US, the Copyright Registrar has spoken on this; in the UK, the Hargreaves Review delineated many problems; and more recently, Australia, too, is starting to address the question. As part of the process of implementing Hargreaves' recommendations, the UK government is carrying out a consultation on whether the UK should adopt the full list of copyright exceptions that are laid out in the EU Copyright Directive, which provides the overarching framework for copyright in Europe. It has now published some questionnaires seeking input in this area:

Each of the documents below relates to a separate exception, and contains a series of questions. We would welcome answers to the questions we have posed and any specific drafting suggestions. The first drafts we are publishing for review are the exceptions for private copying, parody, quotation and public administration. Drafts for the other exceptions will be released as soon as they are ready.

The exception for private copying is straightforward:

will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use.

Regrettably, it does not allow the circumvention of DRM:

the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.

That really guts the new exception, since publishers will simply add DRM to prevent copies being made. On the plus side, the proposed exception does explicitly state that contracts seeking to restrict the right to this exception will be unenforceable. That's also true of the proposed exceptions for caricature, parody or pastiche, and for quotation.

Although welcome, the UK's proposed copyright exceptions are hardly earth-shattering. Moreover, they don't change the fundamental approach to copyright in the UK. Australia's latest proposals for updating copyright, published recently as an extremely thorough and clearly-written 388-page discussion paper are considerably bolder, because they recommend shifting from the current fair dealing approach to fair use. Where the former consists of a limited set of defenses against alleged copyright infringement, fair use lists the general factors to be considered in determining whether the use is a fair or not.

Australia's proposed list of fairness factors are as follows:

(a) the purpose and character of the use; (b) the nature of the copyright material used; (c) in a case where part only of the copyright material is used -- the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and (d) the effect of the use upon the potential market for, or value of, the copyright material.

These are closely modelled on those applied in the US:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

However, it's worth emphasizing that this is only a recommendation in a discussion paper (with comments open until 31 July.) Indeed, an alternative option is also presented, whereby the current fair dealing exceptions in Australian law would be extended to include a wide range of new ones, including for 'non-consumptive' use (temporary copies on the Internet, for example); private and domestic purposes; quotation; education; and libraries and archives.

Those are close to the more cautious approach being adopted in the UK (the Hargreaves Review noted the virtues of fair use, but claimed that there were "significant difficulties" in moving to it because of EU law.) But what's interesting is that both the UK and Australia, with its two alternative proposals, recognize that exceptions offer an effective way to update the copyright system. That contrasts with the obdurate position of the copyright maximalists, who claim that granting any copyright exception for the blind, no matter how limited, would somehow cause the whole system to