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Michael Geist, the IPKat, Bill Patry and no doubt others note that the UK IP Office has issued a consultation paper on ‘Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions‘. At a cool 90 pages, it’s a big document; it’s also a very detailed one, covering potential broadened copyright exceptions for private copying (format shifting), educational uses, private research and study, libraries and archives (for preservation), and parody. Interested parties have until 8 April 2008 to respond.

From an Australian perspective, having in the last couple of years gone through something fairly similar, I think one of the most interesting things about the consultation paper is a point picked up by Patry: the ‘recognition of the conflicting needs for clear guidelines so that people can know what they may do and what they may not, and the countervailing ad hoc nature of so many determinations’. In other words, the old ‘rules/standards’ or ‘flexibility/certainty’ debate.

I’m impressed at the thoughtful laying out of all of the issues in the consultation paper. It does what I think is a generally good job of identifying the issues, possible impacts of exceptions, the alternatives, and the costs and benefits of the alternatives. That is all good. As Geist has noted, the openness of the discussion – putting it all out there, in writing – is great to see.

But the temptation is going to be very strong on the IP Office, and legislators, to do lots of legislative work ‘balancing’ copyright. There will be very strong temptation to specify more and more in the legislation, to put in more and more qualifications, and restrictions. The possibilities can be seen in the text of the consultation document, precisely because it is so open. For example:

1. In relation to educational exceptions to allow electronic provision of ‘ad hoc’ teaching materials, there is a long and apparently perfectly serious discussion of what security arrangements educational institutions should have to have in place before they provide material electronically. Should they have to get undertakings from their students not to pass material on? Should they have to enforce against students caught passing material on? Should they have to ‘password protect’ material – including emailed material? Should schools be liable if they happen to email material to an incorrect email address? Personally, my mind is boggling at the thought of the technology-specific legislation that could eventuate from such a discussion;
2. In relation to ‘format shifting’ (personal copying; like putting songs on your iPod) there is a lot of discussion of the kind of limitations one might want to have. Fortunately, unlike the Gowers Committee original, there seems to be some recognition that limiting the number of copies could be seriously problematic (as, indeed, our own government discovered, leading to some hasty amendments). There’s potential for too-limited language here – the report still talks about allowing users to make ‘only one copy of a work for use on a different device’. But the real silliness here, it seems to me, is the very serious discussion of limiting the exception by time – so that only copies made after the legislation is enacted will be covered by the exception (the report even canvasses the possibility of limiting the exception to material published after the law changes!) Why on earth this would be necessary is beyond me. After all, (a) copyright owners get the benefit of extensions of their rights for existing works (a result of Berne) – why shouldn’t consumers get the same accommodation? (b) copyright owners should have long been factoring into their pricing the fact that people would make personal copies. After all, people have been making copies of their songs ever since double cassette decks were around. So the idea that copyright owners should only have to bear the ‘loss’ of an exception for copies made going forward does not seem justified by the facts.
3. The paper seriously considers limiting linking a ‘research and study’ exception to enrolment in a certified educational establishment. ha. So much for life-long learning.

Now, I don’t want to sound too narky. After all, even these little detailed bits are part of a general, open discussion, which canvasses all options. But reading through, I really was struck by the possibility that the UK could end up with a continuation of the problem it already has, and that we in Australia certainly have post-2006: overly detailed exceptions with multiple limitations put in as part of a good faith effort to enact ‘balanced’ reform. That would be a real shame. If I were involved in this process, I’d be giving some serious thought to how open-textured exceptions could and should be written – without the multiple statutory limitations that would ossify the UK legislation. Oh, and since I can’t resist the plug for a book I rather admire – I would be looking at Burrell and Coleman’s Copyright Exceptions, the Digital Impact (Cambridge UP 2005) for some ideas and arguments against hyper-specificity.