SCL Response to Taking Forward the Gowers Review of Intellectual Property

April 7, 2008

SCL has responded to the call from the UK Intellectual Property Office for responses to its proposals contained in a paper, Taking Forward the Gowers Review of Intellectual Property, which was published in January.


The consultation process aimed to consider how the Gowers recommendations on exceptions to copyright might be implemented in the UK. A number of options were set out in the paper and views were sought on the specific questions contained in each chapter and on the issues generally. Roger Bickerstaff and Gillian Cordall have co-ordinated the SCL Response and SCL is most grateful to them for the work put in. The Response can be read in full here.


On the question of extending the educational exception to cover distance learning, the SCL Response is concerned to distinguish between technological requirements and legal concepts underpinning copyright. An extract from the response on that topic states:

‘Secure Environments

4.    Do you agree that access should be subject to security measures, such as the requirement to enter a secure password in order to access a recording?  What other security measures might be appropriate?

SCL Response:

      The proposed expansion to the educational exceptions should not introduce technological requirements in order to reinforce legal concepts.  The law should clearly state in what circumstances the exception will be available and it should be for schools and colleges to they decide how they will then make sure that they comply with the law, which may involve the use of appropriate technological measures – such as a secure password. 

5.    Who should be able to view recordings made by an educational establishment in a VLE [virtual learning environment]?  Is the reference to “teacher and pupils at an educational establishment and other persons directly connected with the activities of the establishment” in section 34 sufficient or too widely cast?

SCL Response:

      This reference is a good balance but it also ignores the situation of parents/guardians/minders etc who may assist their children with homework and who may have access to the materials as part of this process.  It would be odd, in practice, for a child to be forbidden from divulging his or her password to his or her parent/guardians/minders. If this occurred, then the activities of the parent//guardian/minder should not be infringing provided that they are assisting their child with school activities.’


On the hot topic of format shifting, the SCL Response states:


‘The introduction of a format shifting exception would have the advantage of regularising behaviour which is currently widespread, but under the current legal framework, constitutes infringement.  The benefit for users is that this legitimises their current behaviour.  There do not appear to be any costs for users.  As far as rights holders are concerned, given the fact that this type of infringement is currently acknowledged to be widespread and practically impossible to enforce (or measure), it would be difficult to see how they might be further disadvantaged.  Also the fact that this behaviour constitutes infringement in the UK is little known or understood by consumers and appears at odds with the proliferation of items such as MP3 players etc, may make consumers have less respect for copyright law as a whole.  The benefits to the rights holders of the introduction of a format shifting exception would be to make the law in this area appear more understandable and justifiable, allowing rights holders to concentrate on, and publicise infringement activities such as file sharing.’


On the issue of the conditions limiting format shifting, SCL Response accepts the value of most of the conditions proposed but:


‘Consumers should be allowed to keep copies where they had bought an original royalty bearing work.  Perhaps it would be better to frame the exception by stating that the format shifting exception only applies where a person has bought an original which is royalty bearing for the rights holder (i.e not a “second hand” item or where for example, in the case of a gift, the person has been given the item and it has not been used/opened and therefore not copied) as this is the mischief which is trying to be addressed.  Then the purchaser could keep format shifted copies even if he/she had given the original away.’


In response to a question bearing on the impact of the expansion of the exception for research and private study, the SCL Response considers:


‘We consider that the expansion for the purposes of research would be beneficial for the studies which may involve the use of sound recording, films and broadcasts and we do not see particular reasons for excluding these categories from the exception.’


But goes on to say:


‘We consider that there is a less compelling argument for the extension of the exception for private study in addition to research.  There are greater risks of abuse if the exception is extended to these categories of work.  The vast bulk of the activities that are currently restricted would be legitimised by means of extension to research only and this perhaps indicates that the extension should be limited to research and not private study.’


The consultation is stage one of a two part consultation process. There will be a further opportunity to make views known when the UK Intellectual Property Office consults on a draft statutory instrument.