There were three United Kingdom Copyright Acts in the twentieth century. It is now 26 years since the Copyright, Designs and Patents Act 1988 was passed. The major thesis of this lecture is that it is time for a new Copyright Act. The minor thesis is that we need to re-think our approach to copyright law reform. Both theses are illustrated by the history of UK copyright legislation over the last 140 years.
MODELS AND METHODS OF LAW REFORM
Before I turn to consider that history, I want to say a few general words about models and methods of law reform. It seems to me that, speaking very broadly, there are two main models of law reform. The first is incremental and the second is holistic. The incremental approach proceeds a stage at a time. Typically, the stages involve different aspects of the field in question. Changes are introduced successively over a period of time. The holistic approach considers the field as a whole and makes changes in one go. Both approaches have their advantages and disadvantages. For example, incremental reform means that each measure can address a manageable amount of subject matter and the effects of individual measures are easier to assess, whereas holistic reform makes it easier to balance different aspects which interact with each other. These advantages and disadvantages are well illustrated by the field of copyright.
As for methods of law reform, a variety of methods have been adopted by the UK at different times and for different purposes. I would like to draw particular attention to three kinds of bodies which are asked to consider the law and recommend changes: 1 first, Royal Commissions and departmental committees; secondly, the Law Commission; and thirdly, individual reviewers.
Royal Commissions and departmental committees are ad hoc advisory committees appointed by virtue of non-statutory powers of the Crown and its ministers respectively. 2 Royal Commissions are one of the oldest institutions of Government in the UK (William I's 1085 mandate for the creation of the Domesday Book is usually cited as the first). 3 They were very popular in the nineteenth century, when 399 where appointed. They continued to be fairly popular in the period from 1900 to 1969, when 135 were appointed. 4 Since then, however, only 10 have been appointed. 5 As for departmental committees, they are a more recent institution. While some were created in the nineteenth century, departmental committees flowered in the period from 1900 to 1969, when no less than 1476 were appointed. 6 Since then, their popularity has declined almost as much as that of Royal Commissions, although statistics are hard to come by. 7 The reasons why Royal Commissions and departmental committees used to be so popular are not hard to find. They were very flexible and adaptable institutions; they provided a mechanism for public participation in Government; they were independent, impartial and transparent; 8 their members brought a range of expertise and viewpoints to bear on problems without being paid; and it was up to the Government whether to accept their recommendations in whole, in part or not at all. Why they have declined in popularity is less easy to say. 9
The Law Commission is a permanent independent statutory body which was created by the Law Commissions Act 1965. 10 Its aims are to ensure that the law is as fair, modern, simple and as cost-effective as possible, to conduct research and consultations in order to make systematic recommendations for consideration by Parliament, and to codify the law, eliminate anomalies and repeal obsolete and unnecessary enactments. It consists of five Commissioners, chaired by a judge of the Court of Appeal, appointed for between three and five years. They are supported by a Chief Executive and about 20 members of the Government Legal Service, two Parliamentary Counsel, and a number of research assistants. The Commission engages in programmes of work which it decides upon and undertakes projects referred to it by Government departments. Typically, each project involves a review of the relevant area of law, the issuing of a consultation paper setting out the law, its perceived defects and possible solutions, and the publication of a final report setting out recommendations, frequently accompanied by a draft Bill. 11
Over the last decade or so, the Government has sometimes asked individual reviewers, rather than Royal Commissions, departmental committees or the Law Commission, to review certain areas of the law. As I shall relate, copyright provides two examples of this approach, but it is not confined to copyright. 12 It is not entirely clear why this approach has become popular, but it appears that the perception that an individual reviewer can report more quickly than a commission or committee is an important factor.
THE ORIGINS OF THE COPYRIGHT ACT 1911
The origins of the Copyright Act 1911 lie in the report of a Royal Commission which was appointed by the second Disraeli administration in October 1875 ‘to make Inquiry with regard to the Laws and Regulations relating to Home, Colonial and International Copyright’. 13 The Commission was reconstituted in April 1876 following the death of the original Chairman in December 1875 and the withdrawal of three other members by the end of February 1876. 14 The new Chairman was Lord John Manners (an experienced cabinet minister who was Postmaster-General at the time). The other members were the Earl of Devon (a former civil servant and politician), 15 Sir Charles Lawrence Young Bt (a former barrister and a railway director), Sir Henry Thurston Holland Bt MP (a former barrister and civil servant), Sir John Rose Bt (an international banker who had been a Canadian barrister, MP and minister), Sir Henry Drummond Wolff MP (a former diplomat), Sir Louis Mallet (a civil servant), James Stephen QC (the barrister, journalist and jurist), 16 Sir Julius Benedict (a conductor, composer and author), Farrer Herschell QC MP, 17 Edward Jenkins MP (a former barrister and an author), William Smith (an eminent classical and biblical scholar), James Anthony Froude (the historian and biographer), Anthony Trollope (the novelist) and Frederick Daldy (a publisher). 18 The membership of the Commission was broadly representative of a range of copyright, legal and political interests, although there were some odd omissions, 19 and a number of the members had had some previous involvement in copyright law. 20
The Commission held 48 hearings at which it heard evidence from 50 witnesses in public and the minutes of which were published. 21 The Commissioners presented their Report in May 1878. 22 In it, the Commission first considered domestic copyright, and began by observing:
- 5. The law of England, as to copyright in the matters above enumerated, 23 consists partly of the provisions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports.
- 6. Our colleague, Sir James Stephen, has reduced this matter to the form of a Digest, which we have annexed to our report, and which we believe to be a correct statement of the law as it stands. 24
- 7. The first observation which a study of the existing law suggests is that its form, as distinguished from its substance, seems to us bad. The law is wholly destitute of any sort of arrangement, incomplete, often obscure, and, even when it is intelligible upon long study, it is in many parts so ill-expressed that no one who does not give such study to it can expect to understand it. …
- 9. The fourteen Acts of Parliament which deal with the subject were passed at different times between 1735 and 1875. They are drawn in different styles, and some are drawn so as to be hardly intelligible. Obscurity of style, however, is only one of the defects of these Acts. Their arrangement is often worse than their style. …
In the short term, attempts to implement the Commission's recommendation that the law be codified were unsuccessful, 26 although some of its other recommendations were implemented. 27 Although the Berne Convention for the Protection of Literary and Artistic Works led to the passage of the International Copyright Act 1886 to enable the UK to ratify the Convention, it was only the changes made by the Berlin Act of the Convention in 1908 which prompted further consideration of the need for codification.
In March 1909 the President of the Board of Trade, the Rt Hon Winston Churchill MP, appointed a departmental committee ‘to examine the various points in which the revised International Copyright Convention … is not in accordance with the law of the United Kingdom, including those points which are expressly left to the internal legislation of each country, and to consider in each case whether that law should be altered so as to enable His Majesty's Government to give effect to the Revised Convention’. The Committee was chaired by Baron Gorell (formerly Sir Gorell Barnes, President of the Probate, Divorce and Admiralty Division of the High Court). The other members were Sir Lawrence Alma-Tadema (the artist), George Askwith (a former barrister and a civil servant at the Board of Trade who had been a member of the British delegation at the Berlin conference), Harley Granville Barker (the actor, director and playwright), William Boosey (the music publisher), Charles Bowerman (a former trade unionist and Labour MP), Henry Clayton (a music publisher and author of a book on Canadian copyright), Henry Cust (a journalist who had been editor of the Pall Mall Gazette and a former Unionist MP), Edward Cutler KC (author of two books on musical copyright and a musician and composer as well as a barrister), Anthony Hope Hawkins (a former barrister and a novelist best known for The Prisoner of Zenda), William Joynson-Hicks MP (a solicitor), Algernon Law (a diplomat), Frederick Macmillan (the publisher), Walter Raleigh (Oxford University's first Professor of English Literature), Thomas Scrutton QC (author of The Law of Copyright, then in its 4th edition) 28 and Trevor Williams (one of the founders of the Gramophone Company). 29 As with the Royal Commission, the membership of the Committee was broadly representative, 30 and many of the members had had some previous involvement in the subject of copyright. 31
The Gorell Committee held 16 meetings and took evidence from 45 witnesses over nine days, the minutes of which were published. It reported to Parliament in December 1909. 32 At the outset of its Report, the Committee quoted what the Royal Commission had said about the need to codify the law, and added: 33 ‘… in the opinion of the Committee it is highly desirable that the opportunity, which the amendment of the law to give effect to the Convention would afford, should be taken to place the British law on an intelligible and systematic footing’. Having set out an epitome of the existing legislation, the Committee continued: 34 ‘This epitome sufficiently indicates the confusion which prevails. It would be a great advantage if the British law were placed on a plain and uniform basis, and that basis were one which is common so far as practicable to the nations which join in the Convention’. The Committee proceeded to examine the Berlin Act article by article and to consider what changes to UK law were needed to comply with it, and concluded by expressing their approval of the Berlin Act as a whole. Again, therefore, the approach taken by the Committee was, within the restrictions imposed by its terms of reference, a holistic one.
The Gorell Committee's recommendations, and the Royal Commission's recommendation for codification, were largely implemented in the 1911 Act. 35
BETWEEN THE 1911 ACT AND THE COPYRIGHT ACT 1956
Forty-five years passed between the passage of the 1911 Act and the passage of the Copyright Act 1956. That period, of course, included two world wars. The main technological changes which occurred during that period that were relevant to copyright were the introduction of sound films in 1930, television in 1936, new recording media (notably 12-inch
THE ORIGINS OF THE 1956 ACT
Again, it was a revision to the Berne Convention, this time the Brussels Act of 1948, which prompted consideration of revised domestic legislation. In April 1951 the President of the Board of Trade, the Rt Hon Harold Wilson MP, appointed a departmental committee ‘to consider and report whether any, and, if so, what changes are desirable in the law relating to copyright in literary, dramatic, musical and artistic works with particular regard to technical developments and to the revised International Convention … and to consider and report on related matters’. The original chairman, the Marquess of Reading, resigned in October 1951 on his appointment as Under Secretary of State for Foreign Affairs. After that, the Committee was chaired by Sir Henry Gregory (a career civil servant who at the time was Second Secretary in the Board of Trade). The other members of the Committee were Thomas Allibone FRS (an eminent physicist), John Blake (the then Comptroller-General of Patents, Designs and Trade Marks), 37 George Cooke (a solicitor), Anne Godwin (a trade unionist), Edward Hugh-Jones (an economist), JP Lamb (a librarian) and Francis Skone James (a barrister and editor of Copinger on Copyright, then in its 8th edition). 38 Although loosely representative of a range of interests, it was less representative of the creators and exploiters of copyright works than either the Royal Commission or the Gorell Committee. 39
The Committee held 57 meetings. It took evidence in public from witnesses from 29 organizations and five individuals, transcripts of which were published. It also received written representations from 34 organizations and nine individuals. It presented its report to Parliament in October 1952. 40 In its preliminary remarks, the Committee observed: 41
Although somewhat oddly structured, the report considered the whole subject and made 67 recommendations, the first of which was that the Government should accede to the Brussels Act of the Berne Convention. Again, therefore, the Committee's approach was a holistic one.
The Committee appointed in 1909 found the Law of Copyright in what they described as ‘a state of confusion’, and they recommended that action should be taken ‘to place the British law on an intelligible and systematic footing’. This was accomplished in no small measure by the Copyright Act of 1911, but in the forty-two years since the passing of that Act, during which time there have been two further International Conventions of the Berne Union as well as spectacular developments in the technical field, it was inevitable that some parts, at least, of the codification accomplished in 1911 should have become somewhat outdated. We share the views expressed by our predecessors that ‘it would be a great advantage if the British law were placed on a plain and uniform basis, and that basis were one which is common so far as practicable to the nations which join in the Convention’.
The Gregory Committee's recommendations were largely enacted in the 1956 Act. 42
BETWEEN THE 1956 ACT AND THE 1988 ACT
Thirty-two years passed between the passage of the 1956 Act and the passage of the Copyright, Designs and Patents Act 1988. The main technological changes which occurred during that period that were relevant to copyright were the introduction of improved photocopiers, further new recording media (particularly cassettes and compact discs), new broadcast media (cable and satellite television) and the advent of computers, particular the personal computer. The world was starting to go digital, but as yet in a relatively small way. Very little amending legislation was passed in the 1960s and 1970s apart from the Designs Copyright Act 1968, 43 but in the mid-1980s the Copyright Act 1956 (Amendment) Act 1982, the Copyright (Amendment) Act 1983, the Cable and Broadcasting Act 1984 and the Copyright (Computer Software) Amendment Act 1985 were passed in quick succession as stop-gap measures pending the passage of the 1988 Act.
THE ORIGINS OF THE 1988 ACT
The origins of the 1988 Act lie in the appointment by the Secretary of State for Trade and Industry, the Rt Hon Peter Walker MP, in August 1973 of a departmental committee
to consider and report whether any, and if so what, changes were desirable in the law relating to copyright as provided in particular by the Copyright Act 1956 and the Design Copyright Act 1968, including the desirability of retaining the system of protection of industrial designs by the Registered Designs Act 1949. 44
The Committee was chaired by Mr Justice Whitford, an intellectual property specialist. The other members of the Committee were WH Barber (an academic in the field of French literature), George Burton (Chief Executive of Fisons and a representative of the Confederation of British Industry), George Doughty (a trade unionist), Rosina Harris (a solicitor), 45 Edmund Skone James (son of Francis Skone James, barrister and editor of Copinger, then in its 11th edition), Jaqueline Thwaites (founder of the Inchbald School of Design), 46 William Wallace (who had just retired as Assistant Comptroller in the Patent Office) and Walter Weston (a patent agent). The composition of the Whitford Committee was thus similar to that of the Gregory Committee.
Although it was not expressly referred to in its terms of reference, and although those terms make it plain that there were other factors involved, the appointment of the Whitford Committee was once again prompted at least partly by revisions to the Berne Convention, this time the revisions agreed at Stockholm in 1967 and Paris in 1971. The Committee also had to consider the impact of the Universal Copyright Convention of 1971 and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961.
The Committee held 106 meetings, and smaller working groups also met occasionally to discuss particular topics. It took oral evidence from 56 organizations and companies and 11 individuals. It also received written evidence from a considerable number of organizations, companies and individuals. Unlike its predecessors, the Committee did not publish any of this evidence. 47
The Committee presented its report to Parliament in March 1977. 48 The report was unusually comprehensive, since the Committee's terms of reference required it to consider the law of designs as well as that of copyright. It systematically surveyed the entire topic in 19 chapters and summarized its recommendations in a twentieth. 49 Again, therefore, the Committee's approach was a holistic one.
In its introduction, the Committee stated: 50
To this end, the Whitford Committee devoted its first chapter, and its first three recommendations, to the manner in which such future legislation should be framed. 51
The Act of 1956 is a remarkable feat of draftsmanship but, even if it is a draftsman's dream, it has proved a nightmare to those who have to try to understand it whether as laymen for their own purposes or as lawyers seeking to guide their clients. It is for this reason no doubt that one of the most constant themes in the submissions received by the Committee has been the request that something must be done to simplify the law. A principal objective in any future legislation must be that copyright law should be ‘placed on a plain and uniform basis’ to adopt the words of the 1952 (Gregory) Committee echoing the words of the 1909 Committee.
In 1981 the Government published a Green Paper on Reform of the Law relating to Copyright, Designs and Performers' Protection. 52 In 1983 the Government published another Green Paper on Intellectual Property Rights and Innovation. 53 In 1986 the Government published a White Paper on Intellectual Property Rights and Innovation. 54 As a result of these deliberations, the Copyright, Designs and Patents Act 1988 differed in certain respects from what had been proposed by the Whitford Committee, 55 but nevertheless the basic foundations were those laid down by the Committee. In particular, in accordance with the Committee's recommendations, the 1988 Act was much more clearly drafted than its predecessor.
RECENT DOMESTIC REFORMS TO UK COPYRIGHT LAW
Since the 1988 Act was passed, there has been no consideration of UK copyright law of the kind undertaken by the Royal Commission and the Gorell, Gregory and Whitford Committees. Instead, over the last nine years there have been a number of partial reviews of copyright law which have resulted in a series of piecemeal amendments to the 1988 Act. 56
First, there was the Gowers Review of Intellectual Property, which was announced by the Chancellor of the Exchequer, the Rt Hon Gordon Brown MP, in his Pre-Budget Report to the House of Commons on 5 December 2005. Andrew Gowers, a former editor of the Financial Times, was appointed by the Chancellor and the Secretaries of State for Trade and Industry and Culture, Media and Sport to consider
- – the way in which Government administers the awarding of IP rights and its support to consumers and business;
- – how well businesses are able to negotiate the complexity and expense of the copyright and patent system, including copyright and licensing arrangements, litigation and enforcement; and
- – whether the current technological and legal IP infringement framework reflects the digital environment, and whether provisions for ‘fair use’ by citizens are reasonable. 57
In his report, which was published in December 2006, Gowers reviewed the entire UK intellectual property system from a number of perspectives and made 57 58 recommendations. 59 The recommendations were concentrated on three areas: strengthening enforcement of IP rights, reducing the costs of registering and litigating IP rights and improving the balance and flexibility of IP rights to allow content to be used in ways consistent with the digital age. 60 Ten of his recommendations were for specific amendments to the 1988 Act (including, where necessary, amendments to the EU Information Society Directive). 61 Gowers did not attempt to consider how his proposed incremental reforms would affect other parts of the copyright system, still less did he consider the system as a whole. Nevertheless, many of Gowers' recommendations have now been implemented in whole or in part, albeit that they were not effected within the timescale he suggested, and only after extensive further consultations. 62
Secondly, in 2008 there was an Intellectual Property Office consultation on amendments to the public performance exceptions in the 1988 Act which were not among Gowers' recommendations. 63
Thirdly, there was the Hargreaves Review of Intellectual Property and Growth. Professor Ian Hargreaves, another former editor of the Financial Times who is Professor of Digital Economy at Cardiff University, was appointed by the Prime Minister, the Rt Hon David Cameron MP, in November 2010 to ‘develop proposals on how the UK's intellectual property framework can further promote entrepreneurialism, economic growth and social and commercial innovation’. 64 Hargreaves was assisted by an advisory panel consisting of Professor James Boyle (co-founder of the Center for the Study of the Public Domain at Duke Law School and co-founder of Creative Commons), Dr Roger Burt (former Senior IP Counsel at IBM), Professor David Gann (Professor of Innovation and Technology Management at Imperial College), Tom Loosemoore (Head of Strategy at the Government Digital Service) and Professor Mark Schankermann (Professor of Economics at the London School of Economics). He was asked to report within six months. On December 2010 he issued a Call for Evidence asking for comments on a range of questions and issues by 1 March 2011. Nearly 300 responses were received. In addition, he had meetings with a considerable number of stakeholders and attended a number of seminars, round tables, workshops and other events.
In his report entitled Digital Opportunity, which was published in May 2011, Hargreaves reviewed the aspects of the UK intellectual property system which appeared to him to be relevant to the promotion of economic growth 65 and made ten main recommendations. 66 Two of these recommendations concerned amendments to the 1988 Act. 67 In essence, Hargreaves recommended the adoption of a number of the amendments which had been recommended by Gowers, but had not yet been implemented. 68 After further consultations, 69 these recommendations have now been substantially implemented. 70 Hargreaves did not attempt to consider how his proposed reforms would affect other parts of the copyright system, still less did he consider the system as a whole.
On the other hand, Hargreaves did say this: 71
In their response to the Call for Evidence the Patent Judges in England and Wales said that a comprehensive review and redrafting of the Copyright Act is now considerably overdue. The Review agrees. Implementation of the strategic assessment of the IP framework provided by the Review would be incomplete without consideration of the statutory underpinning, which needs to be both tailored to modern circumstances and as clear as possible. The Review recognises the pressures on Parliamentary time, and the Government's commitment in March to avoid further IP reviews in this Parliament. We urge Ministers not to allow these constraints to prevent the Government from bringing the Copyright Act up to date.
In addition to the three exercises I have just described, the Enterprise and Regulatory Reform Act 2013 introduced certain amendments to the 1988 Act which had not been the subject of any prior consultation or review. 72 In particular, section 74 of the 2013 Act repealed section 52 of the 1988 Act in reaction to the decision of the Court of Justice of the European Union in the Flos case, 73 although the date when the repeal is to become effective has yet to be decided and is presently the subject of a consultation. 74 So too did the Intellectual Property Act 2014. 75
Before leaving this topic, it should be noted that the Law Commission has never been asked to look at copyright law. Indeed, when the Law Commission was recently asked by the Department of Business, Innovation and Skills and the IPO to review the law on groundless threats of intellectual property litigation, 76 groundless threats of copyright litigation were excluded from its remit. 77
SEVEN REASONS WHY WE NEED A NEW ACT
There are at least seven reasons why we now need a new Copyright Act. 78 The first is the passage of time. As I mentioned at the beginning of this lecture, it is 26 years since the 1988 Act was passed. It is 37 years since the Whitford Committee's report. During that period, technological change relevant to copyright has accelerated and has become more transformative. We have had the advent of the world wide web, the whole online world including Internet television and social media, smart phones, tablet computers, and now 3D printing. Furthermore, these technological changes have led to massive changes to the business models for exploiting copyright works. Although much amended, the 1988 Act remains rooted in the analogue world.
The second reason is the changed international and European context. As I have related, past UK copyright legislation has often been prompted by international developments. The 1988 Act was passed prior to TRIPS, 79 the WIPO Treaties, 80 the Beijing Treaty 81 and the Marrakesh Treaty 82 and prior to any European Directives in field of copyright and related rights. It was a purely domestic statute, albeit one which was intended to comply with the UK's obligations under the Berne Convention. Since then, the context has changed radically. We now have TRIPS, the WIPO Treaties, the Beijing Treaty and the Marrakesh Treaty. More importantly, perhaps, there are now no less than 10 European Directives which directly regulate copyright and related rights, 83 and a number of other Directives which also affect such rights. 84 As is well established, the domestic legislation must be construed, so far as possible, in accordance with the Directives. 85 There is now a steady stream of decisions from the Court of Justice of the European Union interpreting the Directives. 86 As a result, it no longer makes sense to have a statute which is not rooted in the European legislation.
The third reason is that the 1988 Act has been amended a quite extraordinary number of times. By my count, there have been no less than 80 amending Acts and statutory instruments to date. 87 Some of these amendments have been required to implement the European Directives. Others have been the result of purely domestic initiatives, such as those I have described. Amendments have repeatedly been made to earlier amendments. To call the result a patchwork quilt would be an insult to the art of quilting. A closer analogy would be an obsessively re-used palimpsest.
The fourth reason is that some of the European Directives have been wrongly implemented due to a failure properly to understand the concepts they employ. One example of this is the UK legislators' failure to understand that what the 1988 Act calls a ‘film’ is what the Directives call a ‘first fixation’ of a film. As a consequence, section 13B of the 1988 Act gives the film copyright the duration which should be given to the cinematographic or audiovisual work. 88 More generally, our legislators do not seem to understand the distinction between authors' rights and related rights which is fundamental to the European legislation. 89
The fifth reason is that there are systemic problems in the design of the 1988 Act whose effects have become worse over time. One example of this is the treatment of protectable subject matter in the 1988 Act. Problems such as the treatment of photographs and unconventional artistic works have become more acute with changes in technology and culture, and the tension between the domestic and European approaches is growing. 90 As Dr Eleonora Rosati has pointed out, part of the difficulty lies in the 1988 Act's closed list of subject matter. 91
The sixth reason is that the interface between copyright law and designs law needs reconsidering. As I have mentioned, section 52 of the 1988 Act has been prospectively repealed. But section 52 was just part of a sophisticated scheme to balance copyright and design protection put in place by the 1988 Act, which also included section 51 and Part III of the 1988 Act and amendments to the Registered Designs Act 1949. As Professor Lionel Bently has argued, it does not make sense simply to unpick one element of that scheme. 92
The seventh reason follows from the previous six, namely that the Act as it presently stands is considerably longer than the Act as originally enacted, considerably more complicated, cannot be understood in isolation from the EU Directives and the implementing regulations 93 and lacks coherence. 94 As a result, the law is inaccessible to creators, exploiters and users of copyright works, which is to say, everyone in the UK. In other words, our legislation is now in a similar state to that which faced the Royal Commission and the Gorell, Gregory and Whitford Committees. Initiatives such as the Copyright Notice service launched by the IPO last year to attempt to clarify the law 95 amount to tackling the symptoms, not the disease.
FIVE POSSIBLE WAYS FORWARD
What then should be done? For the reasons I have explained, it is plain that we need a new Copyright Act. Nevertheless, there are a number of different approaches to drawing up a new Act that could be adopted. I would offer five possible ways forward. 96
The first and simplest possibility would be pure consolidation of the existing Act and all its amendments, including in particular the provisions implementing EU Directives that are not presently included in the Act and the various transitional provisions, which are currently scattered amongst a considerable number of different statutory instruments. This exercise could include some simple drafting amendments, such as bringing performers' rights into Part I of the new Act, which would enable Part II and Schedules 2 and 2A of the 1988 Act to be dispensed with. That one measure on its own would considerably shorten and simplify the Act. 97
The second possibility would be what I would label ‘consolidation plus’, that is to say, consolidation augmented by more extensive redrafting for clarity, consistency and proper compliance with the Directives, but without making significant substantive changes.
The third possibility would be to recast the Act on the basis of the European acquis. That would involve taking the ipsissima verba of the European Directives as providing the basic skeleton for the new Act, and then filling in the gaps, 98 but without making significant substantive changes to the existing law. The point of this exercise would be three-fold. First, it would ground the domestic legislation more securely in the European legislation. Secondly, it would reduce, if not eliminate, the need for users to consult the Directives and implementing regulations in order to interpret the Act. 99 Thirdly, it would mean that the domestic legislation would be better placed to accommodate the next round of European harmonization. 100 As a variant of this third possibility, the Wittem Group's European Copyright Code 101 could be taken as the starting point, except where the Code deviates from the Directives.
The fourth possibility would be what I would label ‘minimal substantive review’. This would not involve going over the ground covered by the recent reviews and consultations again, but rather would be aimed at completing the process of reform. Thus it would be essentially aimed at assessing what consequential changes are needed as a result of the recent amendments and generally overhauling the remainder of the Act.
The fifth and final possibility would be what I would label ‘maximal substantive review’. This would involve a holistic review of copyright law of the kind undertaken by the Whitford Committee.
HOW SHOULD WE CARRY OUT COPYRIGHT LAW REFORM?
Particularly if the fourth or fifth possibilities are adopted, it remains to be considered how copyright law reform should be undertaken in this country. We could, of course, look to other countries for inspiration. A number of other countries are presently engaged in copyright law reform projects, including Australia 102 and the USA. 103 No doubt there are useful lessons which could be learned. One could also look to the European Commission, which has recently consulted on a wide-ranging review of EU copyright rules. 104 But, as I have attempted to describe in this lecture, we have a long and rich history in our own country to learn from.
The system of appointing a Royal Commission or departmental committee once a generation, with instructions holistically to consider copyright law and make recommendations for its improvement, was not a perfect one. It could be improved in at least three ways. The first is by ensuring that all the members of such a committee are appropriately qualified. In particular, the membership should not include people with no experience of copyright law or the copyright industries and should include a legal academic. Secondly, the committee should require a higher standard of evidence than was accepted in the past. 105 A laudable innovation of the Gowers Review was the commissioning of an economic analysis (of copyright term extension) from the Centre for Intellectual Property and Information Law at Cambridge University. Another useful technique, which has been partially adopted by the European Commission, is a structured survey seeking empirical evidence of the kind which is popular in social science research. Thirdly, the committee should conduct its proceedings with more transparency than the Whitford Committee did.
Nevertheless, I would suggest that the departmental committee model of law reform served us fairly well. In particular, it had the advantage of providing a forum for the often contentious debates that copyright law engenders and of providing a mechanism for trying to resolve such debates. 106 The only superior model is that provided by the Law Commission, but I doubt that the Law Commission would want to undertake a review of copyright law given its modest resources and other commitments. I would suggest that neither the Gowers Review nor the Hargreaves Review provides a better model for achieving satisfactory reform of copyright law. While they have delivered some worthwhile incremental reforms, the process has taken nine years and yet has not addressed any of the seven problems I have identified. On the contrary, it has exacerbated them. If the Government had appointed a departmental committee in December 2005, we could have had a new Copyright Act on the statute book by now.
In conclusion, I suggest that it is time for a new Copyright Act and that a departmental committee should be appointed to make recommendations for the framing of the new Act.
- The Broadcasting Act 1990
- The Courts and Legal Services Act 1990
- The National Health Service and Community Care Act 1990
- The Health and Personal Social Services (Northern Ireland) Order 1991, SI 1991/194
- The High Court and County Courts Jurisdiction Order 1991, SI 1991/724
- The Copyright (Computer Programs) Regulations 1992, SI 1992/3233
- The Charities Act 1993
- The Judicial Pensions and Retirement Act 1993
- The Criminal Justice and Public Order Act 1994
- The Criminal Justice (Northern Ireland) Order 1994, SI 1994/2795
- The Trade Marks Act 1994
- The Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995, SI 1995/1445
- The Criminal Justice (Scotland) Act 1995
- The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995
- The Duration of Copyright and Rights in Performances Regulations 1995, SI 1995/3297
- The Merchant Shipping Act 1995
- The Olympic Symbol etc. (Protection) Act 1995
- The Arbitration Act 1996
- The Broadcasting Act 1996
- The Education Act 1996
- The Copyright and Related Rights Regulations 1996, SI 1996/2967
- The National Health Service (Primary Care) Act 1997
- The Copyright and Rights in Databases Regulations 1997, SI 1997/3032
- The Competition Act 1998
- The Government of Wales Act 1998
- The Northern Ireland (Elections) Act 1998
- The Northern Ireland Act 1998
- The Scotland Act 1998
- The Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999, SI 1999/506
- The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999, SI 1999/678
- The Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999, SI 1999/1820
- The Health Act 1999 (Supplementary and Consequential Provisions) Order 1999, SI 1999/2795
- The Health Act 1999 (Supplementary, Consequential etc. Provisions) Order 2000, SI 2000/90
- The Competition Act 1998 (Transitional, Consequential and Supplemental Provisions) Order 2000, SI 2000/311
- The Conditional Access (Unauthorised Decoders) Regulations 2000, SI 2000/1175
- The Powers of Criminal Courts (Sentencing) Act 2000
- The Health and Social Care Act 2001
- The Registered Design Regulations 2001, SI 2001/3949
- The Enterprise Act 2002
- The Copyright etc. and Trade Marks (Offences and Enforcement) Act 2002
- The Copyright (Visually Impaired Persons) Act 2002
- The Communication Act 2003
- The Health and Social Care (Community Health and Standards) Act 2003
- The Copyright and Related Rights Regulations 2003, SI 2003/2498
- The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004, SI 2004/957
- The Goods Infringing Intellectual Property Rights (Customs) Regulations 2004, SI 2004/1473
- The Serious Organised Crime and Police Act 2005
- The Commissioners for Revenue and Customs Act 2005
- The Constitutional Reform Act 2005
- The Government of Wales Act 2006
- The National Health Service (Consequential Provisions) Act 2006
- The Performances (Moral Rights, etc.) Regulations 2006, SI 2006/18
- The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No 2) Order 2006, SI 2006/1016
- The Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028
- The Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006, SI 2006/1056
- The Legal Services Act 2007
- The Tribunals, Courts and Enforcement Act 2007
- The Health and Social Care Act 2008
- The Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277
- The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009, SI 2009/1941
- The Audiovisual Media Services Regulations 2009, SI 2009/3348
- The Legal Services Act 2007 (Consequential Amendments) Order 2009, SI 2009/3348
- The Digital Economy Act 2010
- The Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010, SI 2010/1158
- The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010, SI 2010/2694
- The Treaty of Lisbon (Changes in Terminology) Order 2011, SI 2011/1043
- The Charities Act 2011
- The Health and Social Care Act 2012
- The Crime and Courts Act 2013
- The Enterprise and Regulatory Reform Act 2013
- The Copyright and Duration of Rights in Performances Regulations 2013, SI 2013/1782
- The Copyright and Duration of Rights in Performances (Amendment) Regulations 2014, SI 2014/434
- The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, SI 2014/1372
- The Copyright and Rights in Performances (Disability) Regulations 2014, SI 2014/1384
- The Copyright (Public Administration) Regulations 2014, SI 2014/1385
- The Intellectual Property Act 2014
- The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, SI 2014/2356
- The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, SI 2014/2361
- Care Act 2014 (Schedule 5, Part 4, paragraph 33, not yet in force)
- Intellectual Property Act 2014 (section 22, not yet in force)
In addition to the three kinds of body listed in the text, it is worth noting that in the nineteenth century it was common for Parliamentary Select Committees to consider issues of law reform, including in the field of copyright. A list of Select Committee reports on intellectual property issues is to be found in Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (Cambridge University Press, 1999) at 235–6.
See generally Hugh Clokie and William Robinson, Royal Commissions of Inquiry: The Significance of Investigations in British Politics (Stanford University Press, 1937); Kenneth Weare, Government by Committee: An Essay on the British Constitution (Clarendon Press, 1995); Charles Hanser, Guide to Decision: The Royal Commission (Bedminster Press, 1965); Gerald Rhodes, Committees of Inquiry (Allen & Unwin, 1975); Timothy Cartwright, Royal Commissions and Departmental Committees in Britain: A Case-Study in Institutional Adaptiveness and Public Participation in Government (Hodder & Stoughton, 1975); Lord Benson and Lord Rothschild, ‘Royal Commissions: A Memorial’ (1982) 60(3) Public Administration 339–48; Martin Bulmer, ‘Royal Commissions and Departmental Committees of Inquiry’ (Royal Institute of Public Affairs, 1983); Mike Rowe and Laura McAllister, ‘The Roles of Commissions of Inquiry in the Policy Process’ (2006) 21(4) Public Policy and Administration 99–115; Peter Riddell and Pepita Barlow, ‘The Lost World of Royal Commissions’ (Institute for Government blog, 19 June 2013); Barbara Lauriat, ‘“The Examination of Everything”: Royal Commissions in British Legal History’ (2014) 31 Statute Law Review 24. Note that the literature focuses more on Royal Commissions than departmental committees. Although the only real difference between the two regards the technical method of appointment (by the monarch or by a minister), Royal Commissions at least in the twentieth century tended to be more high-profile and controversial, and possibly less effective.
Clokie and Robinson, note 2 above, at 28; Cartwright, note 2 above, at 32.
Cartwright, note 2 above, Table 3.1, p. 36.
Riddell and Barlow, note 2 above.
Cartwright, note 2 above, Table 3.1, p. 36.
Nevertheless departmental committees do continue to be appointed. An important recent example is the Commission on Devolution in Wales established by the Secretary of State for Wales, the Rt Hon Cheryl Gillan MP, on 11 October 2011 and chaired by Paul Silk. The Silk Commission published two reports, Financial Powers to Strengthen Wales and Legislative Powers to Strengthen Wales, on 19 November 2012 and 3 March 2014 respectively.
Although Royal Commissions and departmental committees were classified by Clokie and Robinson, note 2 above, into three types, namely expert, representative and impartial, it is clear from the subsequent literature that this is not a hard-and-fast classification and that many commissions and committees display all three attributes to a greater or less extent.
Note, however, that public inquiries – whether constituted under the Inquiries Act 2005 or its predecessor the Tribunals of Inquiry (Evidence) Act 1921 (such as the Saville Inquiry into Bloody Sunday) or not so constituted (such as the Hutton Inquiry into the death of David Kelly) – remain a well-used institution. Public inquiries differ from Royal Commissions and departmental committees in a number of respects. Typically, they are led by a single individual; they are investigations into a specific event or series of events; they are primarily concerned with fact-finding; and, while they may make recommendations, such recommendations are not necessarily of a legislative nature. Another procedure which continues to be used is the private inquiry by a committee of Privy Counsellors (such as the Chilcot Inquiry into the Iraq conflict). By contrast with departmental committees, a major concern over such inquiries is their cost. See Oonagh Gray and Chris Sear, ‘Investigatory Inquiries and the Tribunals of Inquiry (Evidence) Act 1921’ (House of Commons Library Standard Note SN/PC/02599).
The 1965 Act also created the Scottish Law Commission. It was amended by the Law Commission Act 2009. In 2007 the Northern Ireland Law Commission was created by the Justice (Northern Ireland) Act 2002, as amended. The origins of the Law Commission lie in the book edited by Gerald Gardiner QC (later Lord Gardiner LC) and Andrew Martin, Law Reform Now (Gollancz, 1963).
The work of the Law Commission, and the implementation of its recommendations, was described by its current Chairman, the Rt Hon Sir David Lloyd Jones, in his Sir William Dale Annual Lecture on 22 November 2012 (available on the Law Commission website).
Another example is the Independent Review of the Commercialisation and Sexualisation of Childhood by Reg Bailey, whose report Letting Children be Children was presented to Parliament in June 2011 (Cm 8078), although this was more concerned with regulatory and ‘soft law’ questions than black letter law.
The decision to set up the Royal Commission was taken by the Prime Minister largely as a result of a deputation he received from representatives of the Association to Protect the Rights of Authors on 10 May 1875 and of a question asked in Parliament by Edward Jenkins MP on the same day, although the Copyright Association had written to the Prime Minister requesting the same thing in February 1875.
The Commissioners appointed in 1875 were Earl Stanhope, the Earl of Roseberry, Robert Bourke, Sir Charles Young, Sir Henry Holland, Sir John Rose, Sir Henry Drummond Wolff, Sir Louis Mallet, Sir Julius Benedict, Thomas Farrer, James Stephen, Farrer Herschell, William Smith and Frederick Daldy.
He had also been called to the Bar.
He was knighted in January 1877 and appointed as Stephen J in January 1879.
Subsequently Solicitor-General from 1880 to 1885 and Lord Chancellor for a brief period in 1886 and again from 1892 to 1895.
For a detailed analysis of the membership of the Commission, their backgrounds and views and their contributions to its work, see Barbara Lauriat, The 1878 Royal Commission on Copyright: Understanding an Attempt at Victorian Copyright Reform (DPhil thesis, Balliol College Oxford, 2013). The Commission has also been considered in detail by: Isabella Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Hart, 2010) at 121–8, 142–6; Ronan Deazley, ‘Commentary on the Royal Commission's Report on Copyright’, in Primary Sources on Copyright 1450–1900 (eds Bently and Kretschmer) (2008) (available at <www.copyrighthistory.org>); John Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (Mansell, 1994) at 185–94; NN Feltes, Literary Capital and the Late Victorian Novel (University of Wisconsin Press, 1993) at 61–3; Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Cornell University Press, 2003) at 53–89; and Catherine Seville, The Internationalisation of Literary Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge University Press, 2006) at 270–4.
Notably of anyone representing the visual arts, drama, journalism or libraries and museums.
For example, Trollope had been an advocate of international copyright: see Lauriat, note 18 above, at 48–52.
The minutes have proved an invaluable resource for subsequent scholars.
C.2036. Sir Louis Mallet dissented from the whole Report, while a number of other members expressed reservations in relation to parts of the Report.
‘(1) Books; (2) Musical compositions; (3) Dramatic pieces; (4) Lectures; (5) Engravings and other works of the same kind; (6) Paintings, drawings and photographs; and (7) Sculpture’: ibid at para. 3.
Stephen's Digest in itself revealed the uncertainty of the law, since many of the Articles and footnotes contained expressions such as ‘probably’, ‘it seems’ and ‘it is doubtful’.
Note 22 above at para. 13.
Bills to codify copyright law were introduced in 1878, 1879, 1881, 1890, 1898 and 1910, but not passed. The 1898 Bill led to no fewer than three Reports of the Select Committee of the House of Lords: see Sherman and Bently, note 1 above and Seville, note 18 above, at 239–41. The Australian Copyright Act 1905 was, however, substantially based on the Report and in particular Stephen's Digest: see Lauriat, note 18 above, at pp. 257–8 and Benedict Atkinson, The True History of Copyright: The Australian Experience 1905–2005 (Sydney University Press, 2007) at 18–20.
By a private members' bill which became the Copyright (Musical Compositions) Act 1888.
1903. In the preface to the 3rd edition (1896), Scrutton had complained: ‘Hardly a copyright case comes into Court, hardly a copyright question comes before counsel for opinion, which does not emphasise the necessity for a thorough revision and codification of the numerous and ill-drafted Acts which constitute the Copyright Law of England. The Copyright Commission urgently recommended this in 1878, but we seem after eighteen years no nearer the desired haven’.
See Lionel Bently, ‘ R v The Author : From Death Penalty to Community Service’ (2008–2009) 32 Colum. J.L. & Arts 1 at 30–32; Seville, note 18 above, at 290–92.
Indeed, more so, since it included representatives of the visual arts, drama, journalism and of the fledgling record industry, although not of libraries and museums.
For example, Alma-Tadema had previously chaired the St John's Wood Art Club's Artistic Copyright Committee from 1896 to 1899. The Committee instructed Scrutton to draft the Copyright (Artistic) Bill, which was introduced into the House of Lords in 1899: see David Foxton, The Life of Thomas E. Scrutton (Cambridge, 2014) at 129–33. This was one of nine Bills on the subject of artistic copyright during the period from 1868 to 1900, none of which were passed.
Cmd. 4976 (1909). A number of members of the Committee expressed reservations on certain points.
Ibid at 3.
Ibid at 7–8.
The legislative history of the 1911 Act is described by Bently, note 29 above, at 32–4. The codification achieved by the 1911 Act was not complete, since the Musical (Summary Proceedings) Copyright Act 1902, the Musical Copyright Act 1906 and one section of the Fine Arts Copyright Act 1862 remained in force.
Minor amendments were made by the Copyright (British Museum) Act 1915 (repealed by the British Museum Act 1932), the National Library of Scotland Act 1925, the Law Reform (Married Women and Tortfeasors) Act 1935 and the Customs and Excise Act 1952.
He was knighted in 1952.
See Bently, note 29 above, at 34–5.
Ibid at 1–2.
The legislative history of the 1956 Act is described by Bently, note 29 above, at 36–8.
Minor amendments were made by the Copyright (Amendment) Act 1971 and a small number of other statutes.
There was a specific exclusion from the Committee's terms of reference of any consideration of the merits of lending to the public as one of the acts restricted by copyright in a work.
And a partner in Joynson-Hicks, the firm founded by William Joynson-Hicks (which later became part of Taylor Joynson Garrett, now Taylor Wessing).
Now Jaqueline Duncan.
It might make an interesting PhD project to analyse the submissions and notes of evidence, assuming they are still extant and could be obtained, and to compare them with the Committee's report.
For a contemporary reaction to the report, see Gerald Dworkin, ‘The Whitford Committee Report on Copyright and Designs Law’ (1977) 40 MLR 685–700.
Note 48 above at para 16.
The drafting of the 1956 Act was also criticized by Sir William Dale in a book published in the same year as the Whitford Committee's report, Legislative Drafting: A New Approach (Butterworths, 1977). Francis Bennion, one of the draftsmen of the 1956 Act, responded in a review:  Stat LR 61.
Notably in relation to the protection of designs. The Whitford Committee's recommendations that the Registered Designs Act 1949 should be repealed and a two-tier system of copyright protection for designs should be introduced were rejected. Instead, Part III of the 1988 Act was largely modelled on the proposals of the Johnston Committee on Industrial Designs in its report presented to Parliament in August 1962, Cmnd 1808.
There have also been a number of reports by governmental or legislative bodies which have not resulted in recommendations for specific amendments to the 1988 Act, including: New Media and the Creative Industries (Culture, Media and Sport Select Committee Report, 2007), Digital Britain: Final Report (Department for Business Innovation and Skills and Department of Culture Media and Sport, Cm 7650, June 2009) and © The Way Ahead: A Strategy in the Digital Age (IPO and BIS, October 2009). These reviews have taken place alongside the ongoing processes of implementing European Directives in the field of copyright and related rights (as to which, see the discussion below) and of making other, minor amendments to the 1988 Act consequential upon other legislative developments.
The terms of reference as set out in paragraph E.5 of the Executive Summary to the published Review (December 2006). The background to the setting up of the Gowers Review is described in Hector MacQueen, ‘Copyright Law Reform: Some Achievable Goals?’, in Fiona Macmillan (ed), New Directions in Copyright Law volume 4 (Edward Elgar, 2007).
Although the recommendations are numbered from 1 to 54, three are divided into a and b.
The Gowers Review was itself reviewed by the All-Party Parliamentary IP Group in 2009. There is also a considerable academic literature concerning the Review, including: David Bainbridge, ‘The Gowers Review of Intellectual Property’  IP & IT Law 4–10; William Cornish, ‘Intellectual Property in Britain: The Gowers Review’  IIC 1–5; Christopher Morcom, ‘Gowers: A Glimmer of Hope for UK Compliance with Article 10 bis of the Paris Convention’  EIPR 125–7; Ian de Freitas, ‘The Gowers Review of Intellectual Property: What's in it for the Technology Sector?’  Comp & Law 27–9; Jeremy Drew and Georgia Warren, ‘Reviewing Gowers’  NLJ 502–503; Mark van Hoorebeek, ‘Proudhon, Gowers and Sir Cliff: La Propriété C'est le Vol?’ (2007) 51(Sum), SL Rev 42–3; Andreas Rahmatian, ‘The Gowers Review on Copyright Term Extension’  EIPR 353–6; Stephen Saxby, ‘Gowers Review of Intellectual Property Bears Fruit’ (2008) 23 CLSR 93–4; Ronan Deazley, ‘Copyright and Parody: Taking Backward the Gowers Review?’ (2010) 73 MLR 785–807; Mark van Hoorebeek, ‘Gowers, Lammy, Levine and Boldrin: Will the Digital Britain Reports Develop a Copyright Agenda for the 21st Century?’ (2010) SL Rev 60(Sum), 45–6.
Foreword, p. 1. One measure of Gowers' approach is the fact that he made no specific recommendations at all in respect of designs, although some of his general recommendations, such as those with respect to enforcement, embrace designs.
Recommendation 2: Enable educational provisions to cover distance learning and interactive whiteboards by 2008 by amending sections 35 and 36 of the CDPA. Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers. Recommendation 9: Allow private copying for research to cover all forms of content. This relates to the copying, not the distribution of media. Recommendation 10a: Amend s 42 of the CDPA by 2008 to permit libraries to copy the master copy of all classes of work in permanent collections for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear. Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete. Recommendation 11: Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test. Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008. Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC. Recommendation 36: Match penalties for online and physical infringement by amendment section 107 of the CDPA by 2008. Recommendation 42: Give Trading Standards the power to enforce copyright infringement by enacting section 107A of the CDPA by 2007. In addition, Gowers recommended that the term of protection for sound recordings and performers' rights should not be increased by the EU: recommendation 3.
See in particular: Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions (UKIPO Consultation Paper, November 2007) (recommendations 2, 8, 9, 10a, 10b, 12); Taking Forward the Gowers Review of Intellectual Property: Penalties for Copyright Infringement (UKIPO Consultation Paper, August 2008) (recommendation 36); Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions (IPO Consultation Paper, December 2009) (recommendations 2, 8, 9, 10a, 10b, 12); and the consultations which followed the Hargreaves Review.
Consultation on Changes to Exemptions from Public Performance Rights in Sound Recordings and Performers' Rights (UKIPO Consultation Paper, June 2008). This followed an earlier consultation in 2002. The amendments were implemented by the Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010, SI 2010/2694.
The full terms of reference are set out in Annex A to the final report.
Unlike Gowers, Hargreaves did address designs, recommending that this area be reviewed by the IPO (recommendation 7). This led to the reforms implemented by sections 1 to 14 of the Intellectual Property Act 2014.
The Hargreaves Review was itself reviewed by the Business, Innovation and Skills Select Committee in a report published in June 2012. There is also a considerable academic literature concerning the Review, including: Nick Rose and Michael Sweeney, ‘The Hargreaves Report’  Ent LR 201–203; Joel Smith and Rachel Montagnon, ‘The Hargreaves Review – A ‘Digital Opportunity’’  EIPR 596–9; Hogarth Chambers, ‘The Hargreaves Review – Another Mixed Bag’  EIPR 599–603; Eleonora Rosati, ‘The Hargreaves Report and Copyright Licensing: Can National Initiatives Work Per Se?’  EIPR 673–6; Andreas Rahmatian, ‘The Hargreaves Review on Copyright Licensing and Exceptions: A Missed Moment of Opportunity’  Ent LR 219–23; Gwilym Roberts, ‘The Hargreaves Review Reviewed: A Missed Opportunity to Help the Dragons in Their Den?’  QMJIP 280–4; Claire Howell, ‘The Hargreaves Review: Digital Opportunity: A Review of Intellectual Property and Growth’  JBL 71–83; Florian Koempel, ‘Life After the Hargreaves Report’  QMJIP 267–78.
Recommendations 4 (orphan works) and 5 (limits to copyright).
Namely the recommendations with regard to format shifting, parody, non-commercial research and library archiving. In addition, Hargreaves went further in recommending an exception for text mining and domestic legislation with regard to orphan works. He also expressed support for extended collective licensing and recommended that collecting licensing bodies be required to adopt codes of practice.
See in particular: Consultation on Copyright (IPO Consultation Paper, December 2011); Regulation of Licensing Bodies (IPO Consultation Paper, September 2013); Extending the Benefits of Collective Licensing (IPO Consultation Paper, November 2013); Copyright Works: Seeking the Lost (IPO Consultation Paper, January 2014). I have not included purely technical reviews of the draft legislation.
In some respects, the amendments which have been implemented go further than the specific recommendations of Gowers and Hargreaves: see in particular the new exception for quotation introduced into section 30 of the 1988 Act by regulation 3 of the Copyright and Rights and Performances (Quotation and Parody) Regulations 2014, SI 2014/2356. In addition, the exceptions for disabled persons were broadened by the Copyright and Rights in Performances (Disability) Regulations 2014, SI 2014/1384.
In addition to the repeal of section 52 of the 1988 Act mentioned in the text, section 76 of the 2013 Act amended section 170 of the 1988 Act to enable the duration of copyright in unpublished works falling within the transitional provisions in Schedule 1 to be reduced. It also included some rather curious provisions disapplying paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (sections 75 and 78) and provisions which amended the 1988 Act to enable Hargreaves' recommendations concerning orphan works, extended collective licensing and codes of practice for licensing bodies to be implemented (section 77 and Schedule 22 Part 1). For commentary on some potential problems arising out of the 2013 Act, see Philip Johnson, ‘“Invalid Legislation”? The Strange Effect of the Enterprise and Regulatory Reform Act 2013 and the Copyright Omnishambles’  JIPLP 700–707 and Eleanor Rosati, ‘The Orphan Works Provisions of the ERR Act: Are they Compatible with UK and EU Laws?’  EIPR 724–40. For more general commentary, see David Fyfield, ‘The Enterprise and Regulatory Reform Act 2013: The Impact on Copyright and Performers' Rights’  EIPR 606 and Colin Davies and Tania Cheng, ‘Public Benefit or Private Loss – Orphan Works and the Enterprise and Regulatory Reform Act 2013’  Comms L 77–82.
Case C-168/09 Flos SpA v Semeraro Case e Famiglia SpA  ECR I-181.
Consultation on Transitional Provisions for the Repeal of Section 52 of the Copyright, Designs and Patents Act 1988 (IPO Consultation Paper, September 2014).
Section 22 (not yet in force) amends sections 154, 155, 156 and 159 of the 1988 Act, and inserts a new section 212A, dealing with recognition of foreign copyright works and performances.
See the Law Commission Consultation Paper No 212 (April 2013) and Final Report Law Com No 346 (April 2014), ‘Patents, Trade Marks and Design Rights: Groundless Threats’.
This was despite the fact that threats of copyright litigation had recently attracted considerable public attention and concern: see Golden Eye (International) Ltd v Telefonica UK Ltd  EHWC 723 (Ch),  RPC 28. Although the advent of the small claims track in the Patents County Court (now the Intellectual Property Enterprise Court) has alleviated the problem, the activities of so-called ‘copyright trolls’ remain a subject for concern: see eg Hargreaves and Hugenholtz, Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework (Lisbon Council Policy Brief issue 12/2013) at 14.
The need for new copyright legislation has been widely recognized for some time: see eg Andrew Christie, ‘A Proposal for Simplifying United Kingdom Copyright Law’  EIPR 26–43 and David Vaver, ‘Reforming Intellectual Property Law: An Obvious and Not-so-obvious Agenda’  IPQ 143–61. The matter was discussed at a stakeholder workshop organized by the Strategic Advisory Board for Intellectual Property Policy (‘SABIP’) on 16 July 2009: see the report of the proceedings, Exploring the Case for Simplification of the Copyright Framework published by SABIP on 26 February 2010. SABIP was itself subsequently abolished, however.
The Agreement on Trade-related Aspects of Intellectual Property Rights which forms Annex 1C to the Agreement establishing the World Trade Organization signed in Morocco on 15 April 1994.
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both concluded in December 1996.
The Beijing Treaty on Audiovisual Performances, concluded on 24 June 2012.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, concluded on 27 June 2013.
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (codified as European Parliament and Council Directive 2009/24/EC of 23 April 2009); Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified as European Parliament and Council Directive 2006/115/EC of 12 December 2006; Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission; Council Directive 93/98/EEC of 29 October 1993 on the term of protection of copyright and certain related rights (codified as European Parliament and Council Directive 2006/116/EC of 12 September 2006); European Parliament and Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases; European Parliament and Council Directive 2001/84/EC of 27 September 2001 on the resale right for the benefit of an original work of art; European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society; European Parliament and Council Directive 2011/77/EU of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and related rights; European Parliament and Council Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works; and European Parliament and Council Directive 2014/26/EU of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights on musical works for online use in the internal market.
In particular: European Parliament and Council Directive 98/84/EC of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access; European Parliament and Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights; European Parliament and Council Regulation 864/2007/EC of 31 July 2007 on the law applicable to non-contractual obligations (‘Rome II’); and European Parliament and Council Regulation 608/2013/EU of 12 June 2013 concerning customs enforcement of intellectual rights.
See Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA  ECR I-4135 at ; Litster v Forth Dry Dock and Engineering Co Ltd  1 AC 546, HL at 558C-H (Lord Templeman) and 576E-577D (Lord Oliver of Aylmerton); Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV  ECR I-8835 at –; R (IDT Card Services Ireland Ltd) v Commissioners for Her Majesty's Revenue and Customs  EWCA Civ 29,  STC 1252 at – (Arden LJ); and Vodafone 2 v Revenue and Customers Commissioners (No 2)  EWCA Civ 446,  STC 1480 at – (Sir Andrew Morritt C).
See eg Estelle Derclaye, ‘Assessing the Impact and Reception of the Court of Justice of the European Union Case Law on UK Copyright Law: What Does the Future Hold?’  240 Revue Internationale du Droit d'auteur 5–117.
See the list in the Appendix. This does not include the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014, SI 2014/2861, which were awaiting Parliamentary approval on 13 October 2014.
See Richard Arnold, ‘ Joy : A Reply’  IPQ 10–21.
See Richard Arnold, ‘Content Copyrights and Signal Copyrights: The Case for a Rational Scheme of Protection’  QMJIP 272–9.
See Richard Arnold, ‘Copyright in Photographs: A Case for Reform’  EIPR 303–305 and Arnold, note 89 above.
Eleonora Rosati, Originality in EU Copyright (Edward Elgar, 2013), Ch. 5. See also Christie, note 78 above.
Lionel Bently, ‘The Return of Industrial Copyright?’  EIPR 654–72.
Note that the provisions concerning artists' resale right, database right and publication right are not even to be found in the 1988 Act, despite its length. Nor are the many transitional provisions relating to the successive amendments to implement EU Directives.
Dr Jeremy Philips said in a blogpost on the IPKat blog on 23 September 2014 that ‘The copyright legislation in the United Kingdom is, so far as this Kat is aware, the longest, the most confusing and the hardest to navigate in the world. If they were giving medals for Legislative Nasties, the Copyright, Designs and Patents Act 1988, together with its attendant amendments and subordinate legislation, would surely win Gold, Silver and Bronze’.
Essentially as recommended by Hargreaves (recommendation 10).
Compare the five options of ‘tidying’, ‘tinkering’, ‘adding/codifying’, ‘restructuring of exceptions’ and ‘radical restructuring’ considered by SABIP: see note 78 above.
See Richard Arnold, Performers' Rights (4th edn, Sweet & Maxwell, 2008) at para 1.111.
This is not to pretend that this is an entirely straightforward exercise. Some of the provisions in the Directives cannot be implemented as they stand, since they require choices to be made or detail to be supplied. Furthermore, there is a degree of inconsistency between the Directives at least in the language they use.
The past tendency of Parliamentary draftsmen to re-write even mandatory provisions of European Directives which do not require choices to be made with regard to implementation has been much criticized and has led to the courts looking directly to the European legislation instead: see eg British Sugar plc v James Robertson & Sons Ltd  RPC 281 at 291 (Jacob J), Philips Electronics NV v Remington Consumer Products  RPC 283 at 290 (Jacob J) and many subsequent dicta. Happily, the current practice is usually to follow the European text as closely as possible. For discussion of this issue from the draftsman's perspective see Daniel Greenberg, ‘The Copy-Out Debate in the Implementation of European Union Law in the United Kingdom’ (2012) 6 Legisprudence 243.
Unless that takes the form of a unitary European copyright title as proposed by eg Hargreaves and Hugenholtz, note 77 above.
See the Australian Law Reform Commission's report Copyright and the Digital Economy (13 February 2014).
See Maria Pallante, ‘The Next Great Copyright Act’ (2013) 37 Colum. J.L. & Arts 315 and the US Copyright Office's current Music Licensing and Making Available Studies.
For a commentary, see Martin Kretschmer, Ronan Deazley, Lillian Edwards, Kristofer Erickson, Burkhard Schafer and Daniel John Zizzo, ‘The European Commission's Public Consultation on the Review of EU Copyright Rules: A Response by the CREATe Centre’  EIPR 547–53.
On the other hand, it should be recognized that the procedures adopted by the Royal Commission and by the Gorell, Gregory and Whitford Committees did have the advantage of enabling them to test the evidence of witnesses through oral questioning.
It is a mistake to think that this is a new phenomenon. The proceedings and reports of the Royal Commission and the Gorell, Gregory and Whitford Committees reveal sharp and passionate dissension on many points. In the case of the Royal Commission, this extended to dissension over the very purpose and rationale of copyright itself: see note 18 above.
Arnold, Richard - A judge of the High Court of England and Wales