Tuesday, 20 January 2009

Copyright licensing schemes

Among my myriad subscriptions that clutter up Google Reader each morning - it's impossible to keep the total number of unread items below 1000 - I find one telling me of The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Amendment) Order 2009 (SI2009 No. 20, indicating a very slow rate of legislative activity so far this year on the part of a government that has completely rewritten the record books, if not quite the statute books). This is going to excite very few people, but it highlights one of the most - to me, anyway - obscure corners of our cpyright legislation.

Back in 1988, when the Copyright, Designs and patents Act became law, I wrote a short article for The Lawyer about it. Because this was journalism rather than the sort of low-grade legal article-writing that I was even then accustomed to, I decided to include some comments from other people, which is why I spoke to the late Charles Clark, the architect of the Copyright Licensing Agency and thanks to my previous job at the CBI already an acquaintance, to find out what he thought about the provisions on licensing schemes.

He offered me two memorable comments. Chapter VII of Part 1 of the Act was, he said, "byzantine" in its complexity: and he imagined that only about five people would ever understand it (echoing, perhaps, Lord Palmerston's famous dictum on the Schleswig-Holstein Question). I was too polite to ask if he thought he might be one of them: I have not tried very hard to join that select group.

Anyway, this latest piece of secondary legislation is made under the powers conferred on the Secretary of State by Section 143 of the Act. This section (which is in the notorious Chapter VII) deals with the certification of licensing schemes, which in turn are defined in section 116. The purpose of getting a scheme licensed is to displace another provision of the Act which permits an activity otherwise restricted by copyright. In this case, the permitted act is recording by educational extablishments of broadcasts (section 35, sub-section (2) of which says "This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences").

Section 143 is not particularly onerous. It is concerned not with the fairness of the licensing scheme (that's a matter for the Copyright Tribunal), only with whether the works covered by it can be identified with sufficient certainty, and it sets out the charges and other terms. The fact that it offers a way to knock out some of the permitted acts (Chapter III of the Act) is valuable to copyright owners, and forms part of one of the "central themes" of the Act which is to curb the exclusive rights given by copyright and turn some of them into rights to remuneration.

As for the new statutory instrument, it merely varies the charges imposed under the previously-certified scheme, and corrects a government typo: (“Association de Geston Internationale Collective des Oeuvres Audiovisuelles” deleted and “Association de Gestion Internationale Collective des Oeuvres Audiovisuelles” substituted). So I don't necessarily suggest you spend time seeking out the original source ...

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