You may remember the libraries and archives campaign (supported by the UCL Library) to persuade the UK Government to reform the arcane rules which mean that a very large number of unpublished historical documents remain in copyright until 2039. The Government launched a consultation exercise on 31^st October last year to gather views on its proposal to change this aspect of copyright legislation. See previous blog posts on 21st August 2014 and 3rd November 2014. More information on the issues is available in a Briefing from the Libraries and Archives Copyright Alliance (LACA)

The 2039 rule causes many issues for cultural institutions wishing to improve access to historically interesting material. It also swells the ranks of Orphan Works (works in copyright whose rights owners cannot be identified or located) and also keeps  UK copyright law out of step with the rest of the EU.  The response from the cultural sector, including libraries and archives was very eloquent and persuasive in its arguments for the Government’s reform proposal.

Unfortunately, not persuasive enough for the Government, which has decided not to make the necessary changes at this time, see the Government Response to the Consultation. It was thought that the problems posed by removing the ownership of copyright from those who would otherwise continue to own rights in the material until 2039 were too great.

The Government was concerned that it would face challenges under Human Rights legislation for removing property from its owners. To be fair, they have not ruled out change in the future, it is rather the case that they cannot find an acceptable way of achieving the legislative changes at the moment.

Part of the problem is of course that for a large part of the “2039 material”, although it is in copyright, the ownership is far from clear, so the owners are unlikely to draw any benefit from their intellectual property and in that sense would not be losing out. However, some of those rights owners who are aware that they own “2039 material” argued strongly against the Government’s proposals.

Julia Reda, MEP for the German Piratenpartei, has just published the first draft of her report on copyright reform commissioned by the European Parliament. You can also read Ms Reda’s blog, here . The measures recommended in the report are very favourable to users of copyright material, including the reduction of the standard copyright term to the author’s lifetime plus 50 years (the minimum requirement of the Berne Convention). Among other measures the Report also recommends:

Extending the Text and Data Mining exception to cover TDM for any purpose (including commercial); Creating a new exception permitting libraries to lend e-books, “…irrespective of the place of access”

The report also favours a new piece of EU legislation replacing the Copyright Directive, which would apply immediately across the EU without requiring national implementation (it would need to be a “Regulation” as opposed to the current Copyright Directive).

It would follow that the various exceptions included in the new legislation would be mandatory in all member states. The current list of exceptions in Article 5 of the Directive resembles a smorgasbord where the member states can select the exceptions of their choice while leaving others on the table. The current situation creates complexity and uncertainty around cross border access to copyright material within the EU. It will be interesting to see how Julia Reda’s report is received by the European Parliament and other EU bodies.

What are the copyright implications of  hyperlinking to a piece of content (perhaps a film or a photograph) which is already freely available on the internet?

The Court of Justice of the European Union (CJEU) came up with an interesting decision last year in the case of Svensson v. Retriever Sverige AB , a reference from a Swedish court. A number of journalists objected to Retriever (a site which aggregates news stories) hyperlinking to their work published on accessible newspaper sites.

By hyperlinking is one communicating the original work to the public? “Communication to the public” is one of the acts restricted by copyright ( Article 3(1) of the EU Copyright Directive, 2001/29/EC).

The CJEU took the view that Retriever was not making the work available to a new public and so this did not constitute “communication to the public” and was therefore not infringing the authors’ copyright. People following the hyperlinks to read the articles could also have accessed them on the newspaper sites and were therefore not “a new public”.

A more recent decision from the CJEU from October 2014 (but not available in English yet), BestWater International GmbH v. Mebes and Potsch (C 348/13) reinforces the view taken by the CJEU in the Svensson case. This time the content was a promotional video originally uploaded on BestWater’s own site then (without their knowledge) on YouTube. The other parties then linked to the video on YouTube from their own sites. The CJEU once again used the “new public” reasoning to conclude that the linking did not constitute “communication to the public”.

The new judgment seems to reinforce the view that using hyperlinks to freely accessible content does not give rise to copyright issues. Protected content would of course be a different matter.

The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!