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Copyright in 2021, What’s in store

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2021 has been a busy year already for copyright legislators and regulators around the world:

  • In France, Google reached agreement with a group of publishers represented by the Alliance de a Presse d Information Generale that establishes a framework and set of criteria for Google to negotiate how it will remunerate each of these publishers. The individual agreements will cover neighbouring rights, which were established by Article 15 of the EU Copyright Directive.
    The EU is not the only jurisdiction seeking to protect publishers” neighbouring rights – last month, Australia also announced plans to introduce a law for remuneration of publishers for news content. The announcement elicited concern from Google and Facebook.
  • In the US, the Copyright Office is responding to the Copyright Alternative in Small-Claims Enforcement (CASE) Act that was enacted on 27 December 2020. It provides an alternative forum to adjudicate civil copyright claims and counterclaims capped at $30,000 in damages.
    The law requires the office to establish a Copyright Claims Board by December 2021. A law was also passed to bring felony charges against digital transmission services offered to the public for financial gain that are designed, provided, or marketed for the purpose of streaming copyrighted works without authorisation.
    Both are relevant to us here in the UK as the Government is considering various aspects of the copyright regime.

Top of the list are enforcement, streaming, artificial intelligence, exhaustion, and the implications of the EU’s Copyright Directive. Many of these are interwoven.

Enforcement

We re expecting the Intellectual Property Office (IPO) to publish an update on its Enforcement Strategy in the coming weeks. We re eager to see initiatives to improve the effectiveness and efficiency of the small claims track. From the perspective of a rightsholder, court proceedings for infringement of copyright and related rights can be daunting, expensive, time consuming and complex.

In the most recent consultation on enforcement the Government asked about the potential consequences of introducing statutory damages to the regime this has the potential to deliver several advantages.

?Given the increased consumption of content online, we are also eager for further details on what more the Government will do to address the prevalence of illegal content on online platforms.

Streaming

Concerns about online illegal content are also a key thread in the DCMS Committee’s ongoing inquiry into the economics of music streaming.

This is not surprising. In 2019 alone digital piracy cost the UK music industry an estimated £193 million in revenue 20% of the value of all legal consumption and streaming ripping has been the fastest-growing part of the piracy landscape.

Recommendations from this inquiry are likely to be relevant to the wider creative industries, particularly if it calls for changes to safe harbours and places greater proactive responsibility on platforms for preventing illegal content. The inquiry also asks whether the UK need an equivalent of the Copyright Directive

The EU “Copyright” Directive

The UK Government announced last year that it will not adopt the EU “Copyright” Directive. Some of the provisions are already contained within UK legislation, but there are other provisions, some of which are contentious, that are not.
Therefore, without amendments to UK legislation, a regulatory divergence between the UK and EU will emerge.

There are a range of approaches the Government could take, each with upsides and downsides for different links in the creative value chain. It is too soon to say where this debate will lead us, but it will likely be a continued focus in 2021.

Read more: The importance of UK copyright in the trade negotiations

Exhaustion

This is another UK-exit issue. It is relevant across the creative industries, but particularly acute for books as roughly 60% of the publishing market is from export sales, equivalent to around £3.5bn per annum. Again, we re anticipating a consultation from the Government soon.

Our view is much more evidence is needed to understand the potential implications of changes to the UK’s exhaustion regime not just on the economy, but also on safety and standards for products entering the UK market.

Artificial intelligence

This time we re awaiting the outcome of a government consultation that closed last year. Aspects of this debate, such as text and data mining, are also relevant to discussions around the EU Copyright Directive.

?Existing industry-led licensing, supported by a robust copyright framework, should remain at the heart of copyright developments in relation to AI.

AI and investment in new AI systems is a commercial concept that enables companies to develop and present their goods and services in new and innovative ways for commercial exploitation. When text and data mining uses existing copyright works to create commercial value it is only right that the creators whose works are used by AI are appropriately remunerated.

Some of these issues are new to 2021, some are heightened in importance this year because of the ongoing trade negotiations and pandemic, others have been in the spotlight for many years.

Whilst we respond to what is happening elsewhere in the world and advances in technology, we should not forget that the UK’s copyright regime is one of the best in the world. In a year that has started with significant uncertainty, one thing’s for sure, 2021 will be an interesting year for copyright.

Whilst it is my intention that these views reflect the views of our members this should not be read as the official BCC position.

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