Monday, 25 February 2019

Spare Rib archive threatened by B****t

I was surprised when I read about this today in the Guardian. Why should the British Library's digital archive of the celebrated feminist magazine have any problems arising from the impact on the orphan works directive of B****t?

My first thought was that the Directive (implemented in s.44B and Sched.ZA1 of the 1988 Act) must surely remain part of UK law. But (according to its website) the BL has been advised by the soi-disant Intellecual Property Office that the "legal exception" (properly, permitted act) would no longer apply. Which makes me ask, what is the BL doing taking legal advice from there? Don't they have lawyers (with insurance)? Given the extent to which the BL works with copyright (all the time), I would have thought the advice should have been flowing, if at all, in the opposite direction.

Thanks to Eoin O'Dell's Cearta blog I have now looked at the draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 (pdf) and their Explanatory Memorandum (pdf). I am astonished to see that the government plans to throw the baby out with the bathwater, repealing (or "omitting", as the legislation says - is that another example of B****t Newspeak?) section 44B which is the permitted act, along with Schedule ZA1 (and I do think that with a title like that it probably deserves something, though I'm not sure repeal is called for).

Is the real problem that the right to issue copies etc across the EU will be lost (and as the archive is online it is available, presumably, EU-wide)? Would geo-blocking help (but if it would, is it acceptable)? The BL won't be able to add anything to the EUIPO database, but if it has published stuff in reliance on the fact that it was in the database then it seems to have complied with para 5 of Sched. ZA1 and I don't see anything to require it to refresh its due diligence. It looks as if Cultural Heritage Institutions in the UK will no longer be able to look at the EUIPO database (which seems a bit miserly) so in future it would be impossible to comply with para 5: but that doesn't have to destroy the legal basis for the Spare Rib archive.

The domestic licensing scheme (s.116A and SI 2014/2863) might help but seems too limited, and expensive, so I am disregarding it as a practical alternative. I will however note that the SI is being amended to remove references to the EU database - which as the Regulations stand is an essential component of a diligent search. Well, of course this has to be done, but why couldn't the same approach be taken to the permitted act?

The answer is, I guess, that there was always a certain amount of tension between the UK's licensing approach and the Directive's permitted act approach - described by Eleonora Rosati in this paper and by the IPKat, 22 November 2013. Eleonora suggested that the UK law was incompatible with the directive, the Infosoc directive, the Copyright, Designs and Patents Act 1988, and even the Charter of Fundamental Rights, which is a pretty comprehensive charge sheet. On that basis, I can imagine that the UK government was content to see the back of the EU orphan works scheme: in the orphan works sphere, the UK had been taking back control since 2013. So following B*****t orphan works will be subject to the IPO-operated licensing scheme, and the BL and others (a wider range of others than under the Directive) can pay for the privilege of using orphan works.

Of course we have to respect the will of the so-called majority (including, I am pretty confident, no readers of Spare Rib) who voted to trash all the hard work that has gone into this.

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