ORG parliamentary and policy update/2013-w18

< ORG parliamentary and policy update

This is ORG's Parliamentary Update for the week beginning 29/04/2013

Both Houses of Parliament were "prorogued' on the 25 April and, as the Parliament website states "will meet again for the State Opening of Parliament on Wednesday 8 May." Prorogation marks "the formal end to the parliamentary session" and is "signalled by an announcement, read in the House of Lords, on behalf of the Queen."

Government Bills

Enterprise and Regulatory Reform Bill

The Enterprise and Regulatory Reform Bill, now an act of parliament having received Royal Assent on 25 April, is currently "being prepared for publication" according to the Progress of the bill. With specific respect to the provisions relating to orphan works fears have been expressed concerning the so called "end of copyright" as The IPKat notes. Along similar lines the Copyright Blog stated that the UK "abolished a large part of the "framework" which supports" copyright. Receiving strong criticisms from a number of commentators and photography groups, worries have been expressed about "the new provisions to ease the licensing of orphan works, which some people fear will also make online images posted by users freely available to companies seeking to use them for commercial purposes.", as The Telegraph states. As a result it has been argued that:

"Although much of the detail of the legislation has yet to be worked out photographers and other copyright holders fear that Parliament could vote through a system that would effectively render every online photo a user posts beyond copyright."

According to Wired:

"One of the fears raised by the passing of this Act is that, after conducting a cursory search for your name and coming up blank, a business would be able to use the extend collective licensing to just use it anyway. But it is important to note that a lack of metadata does not automatically an orphan make." Following on from this

"if a publication is genuinely unable to find the rights holder and is able to demonstrate this to a government-appointed body, they may then be able to buy the license to use the image. The licence fee (at an equivalent rate to that of a known photographer) is then held in case the rights holder is then found or comes forward."

An intellectual Property Office spokesperson commented stating "Owners of photographs posted online will not lose control of their copyright under changes outlined in the Act", with the changes not resulting in the ability to use "copyright work without permission or free of charge." The final format of the license is still being developed with it being likely to include "conditions of usage (i.e.not derogatory or abusive) and set out conditions relating to exclusivity and sub-licensing."

Defamation Bill

The Defamation Bill, having received Royal Assent on the 25 April, is now an Act of Parliament. The original version of the Bill (as it was originally enacted) was published on 2 May. As of yet the legislation is only available in its original format.

Crime and Courts Bill

The Crime and Courts Bill is now an Act of Parliament following agreement by both Houses on the text of the Bill and receiving Royal Assent on the 25 April. The original version, as originally enacted, is available here.

Communications Data Bill

Last week Deputy Prime Minister Nick Clegg MP announced that the "Snooper's Charter" would not reach Parliament as long as the Liberal Democrats were in office. However according to Metro:

"Downing Street has refused to say if the communications data bill. dubbed the 'snoopers' charter' has been scrapped from next month's Queen's speech after deputy prime minister Nick Clegg claimed it had been killed off during his weekly radio phone-in."

However "Prime minister David Cameron's official spokesman responded to Mr Clegg's comments by insisting discussion were still 'ongoing' over how best to help the police and security services respond to technological change."

As the Commentator notes, civil society groups had come together to "launch an Open Rights Group report, called Digital Surveillance, that brings together people from across civil society who are united against the Snooper's Charter." The report presents the various author's thoughts which "between them highlighted the host of issues that still remain, despite Nick Clegg's welcome recent intervention."

The ORG report "brings together leading Internet experts, lawyers and campaigners to offer credible, less intrusive alternatives to the Home Office's communications Data Bill. The authors make a call for more targeted, more transparent and more accountable surveillance laws and offer a number of useful recommendations for how to achieve this."

The full ORG report is available for download as a PDF here.

Debates and questions

Parliament was on recess this week.

International Developments

Canadian Copyright Law: The Copyright Pentalogy

The University of Ottawa Press has published "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law". As the 1709 Blog states the book "collates the work of a number of Canada's leading copyright scholars to attempt to examine the implications of the five copyright decisions handed down by the Supreme Court of Canada". As the University of Ottawa Press states:

"In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law."

The Court's decisions, labelled as the "copyright pentalogy" included "no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing."

The book is also available as a free download under a Creative Commons licence available here.

European Union

Devolved Matters

Irish Court has jurisdiction in "screen scraping" claim

According to Stare Decisis Hibernia the "High Court refuses to dismiss, on grounds of jurisdiction" a claim made by an Irish airline against a UK travel agent from "alleged "screen scraping" (i.e. use of automated system to extract data from website)." The case involved a claim for damages for an alleged breach of contract based on the "terms and conditions on airline's website". As the judgement stated:

"Accordingly, in my view, by application of Article 23(1)(c), the defendant is bound by the jurisdiction clause in the Terms of Use on the plaintiff's website by its use, either though the medium of an automaton or a manual operator or a third party data provider, of the website."

Full judgement available here

Law and Legal Cases

Cariou v Prince: Copyright and "Transformative Use"

The US Court of Appeals for the 2nd Circuit decided that, as The 1709 Blogger states, the "use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fair". Patrick Cariou, a professional photographer who in 2000 published a book entitled "Yes Rasta" documenting the six years he spent among Rastafarians in Jamaica sued Richard Prince, an "appropriation" artist, for copyright infringement for his "collage comprising 35 photographs torn out of Yes Rasta and pinned to a piece of Plywood."

The case, as Art in America notes "concerns Prince's "Canal Zone" series of paintings (2008), which incorporated photographs by French photographer". In 2009 "U.S District judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and unsold paintings that make use of Cariou's photographs." The question revolved around the issue of "fair use" and whether the works could be classified as "transformative". The Court of Appeals, overturning much of the previous decision against Prince, declared that:

"Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. The twenty-five of Prince's artworks manifest an entirely different aesthetic from Caribou's photographs."

As a result it was held that "all except five (Graduation, Meditation, Canal Zone (2007), Canal Zone (2008), and Charlie Company) of Prince’s artworks make fair use of Cariou's photographs."

The decision to overturn the ruling made by U.S District Judge Deborah Batts follows on from strong criticism from academics. The Center for Internet and Society at Stanford law School (CiS) "filed an amicus brief on behalf of The Andy Warhol Foundation for the Visual Arts urging the Second Circuit to reverse that decision." The brief explained:

"that the district court ignored established fair use principles and compounded these errors by issuing an injunction without weighing any of the free speech and expression interests at stake."

full judgement available here

ORG Media coverage

See ORG Press Coverage for full details.

Our Digital Surveillance report launch received extensive online coverage and reuse, including on Techdirt, Wired, and

ORG contact details

Staff page