The Enterprise and Regulatory Reform Act: copyright mythology according to UK IPO

As was announed by the BBC last Monday, yesterday the final text of the Enterprise and Regulatory Reform Act (ERR Act) was finally made available to the public (thanks go to Andy J for promptly posting a link to the Act).

This Kat's earlier post on the copyright provision of this new piece of legislation has attracted quite a few interesting comments. While a good number of them has dealt with arguments in favour of or against assimilation of copyright with physical property, some others have raised cross-border issues and questioned whether the peculiar ERR Act provisions might conflict with UK's international obligations, in particular the Berne Convention.

Among other things, a reader (John Walker) raised some intriguing questions which some IPKat readers might also want to address.

In particular, one of his questions read as follows: "What would be the situation when a UK site makes a commercial global web use of a 'orphan' photograph, that turns out to be owned by say the New York Times - whose law would apply?"

... And - believe it or not -
private international law
provisions applied to the internet
can be even more confusing!

Although this Kat believes that the legal scenario is still (sadly and rather confusingly) quite unsettled in this respect, from an EU perspective some hints might be found in the decision of the Court of Justice of the European Union (CJEU) in Case C-173/11 Sportradar. Despite this being a database case, the conclusions of the Court might well apply to copyright cases, as was argued in this Katpost (see some interesting discussion also here).

Other jurisdiction-related responses might come from the (hopefully) forthcoming CJEU decision in Case C-170/12 Pinckney, a reference from the French Court of Cassation seeking clarification on the interpretation of the Brussels I Regulation (Regulation 44/2001) as applied to online copyright infringement cases:

Is Article 5(3) of Council Regulation (EC) No 44/2001 ... to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,

-    the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,

Or

-    does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?

Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?

Another case of Myth vs Fact analysis

On a non-judicial tune (which however might be even more controversial), while browsing the UK Intellectual Property Office (IPO) website yesterday morning over breakfast (sigh ...), this Kat found a Myth/Fact-structured note entitled "The Enterprise and Regulatory Reform Act 2013 – Your photos and you".

This note addresses some of the points raised by campaign group Stop43 and their claim that UK photographers should feel "Royally f*cked by the UK Intellectual Property Office and UK Government".

Among other things, the UK IPO rejects the consideration of the ERR Act as an Instagram Act, holding that "given the steps that must be taken before an orphan work can be copied, such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans."

Other "myths" according to the UK IPO are:

• fear that "a company can take [a photographer's] work and then sub-license it without [his/her] knowledge, approval or any payment." As explained in the note, "[t]he licences to use an orphan work will not allow sub-licensing."

• belief that "the stripping of metadata creates an orphan work", in that "the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme."

• that from now on photographers "will have to register [their] photos to claim copyright". As explained by IPO, "[c]opyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection."

• that "the UK is doing something radical and unprecedented with the Orphan Works powers." According to the IPO, "[t]he UK powers are largely based on what happens in Canada – which has been licensing orphan works since 1990." [yes, says Merpel, but Canada doesn't have to  implement also an Orphan Works Directive by 29 October 2014, as does the UK ... You might want to consider possible overlaps (and points of conflict) between the various provisions, such as permitted uses of orphan works ...]