Publishing focus: IP and technology law issues for 2014

United Kingdom

This year will be a challenging and exciting time for the publishing industry, with a continued focus on the digital marketplace, brand and consolidation. This Law-Now focuses on key IP and technology developments in the 2014 legal landscape which will affect the industry.

  • New copyright exceptions. On 27 March 2014, the government issued the draft Exceptions to Copyright Regulations which, if approved by parliament, are due to come into force on 1 June 2014. The changes aim to make copyright law more suitable for the digital age by permitting minor and reasonable acts of copying. The exceptions most likely to affect the publishing industry include: The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations. This includes an express statement that private use includes making back-up copies, copies for purposes of format-shifting and storage. This will allow consumers who have purchased eBooks from one device to transfer them to another, for example copying a book from a tablet to an eReader or an online cloud storage facility. However they still would not be able to make copies for friends and family. The Copyright and Rights in Performances (Quotation and Parody) Regulations. The digital phenomenon, and increased use of social media as a marketing tool, has seen a rise in the creation of works of caricature, parody and pastiche, for example spoof videos through YouTube or social networking sites, which involve some element of copying from another work. These new regulations will allow people to use a limited, moderate amount of copyrighted material without the owner’s permission under the fair dealing exception i.e. where the use is deemed to be fair and reasonable. The terms “caricature, parody and pastiche” have their ordinary dictionary meanings. These regulations will also give people greater freedom to quote the works of others under the fair dealing exception as long as any quotation is accompanied by a sufficient acknowledgement of the source. What constitutes fair dealing will depend on the facts of the case but short quotations which are needed in light of their context are more likely to be permitted than long, irrelevant ones. This change is beneficial for authors, academics and online bloggers. The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations. The aim of these Regulations is to make it easier and cheaper for educational institutions, libraries and archives to share and preserve their collections. They will allow these institutions to offer access to copyright works on their premises via electronic means at dedicated terminals, for example limited extracts from books for non-commercial research and private study purposes. They will also allow museums, libraries and archives to make copies in order to preserve their collections. The Copyright and Rights in Performances (Disability) Regulations. The current law allows visually-impaired people and organisations acting on their behalf to make accessible versions of certain works protected by copyright. Under these regulations, the exception will now apply to anyone who has an impairment that prevents them from accessing copyright works, not just those that are visually-impaired. They will also allow individuals, educational establishments and not-for-profit organisations to reproduce such works in accessible formats without needing to purchase a licence. It is hoped that these changes will provide disabled people with greater access to creative content including published works.
  • EU Copyright Rules. The European Commission commenced a public consultation to explore current EU copyright rules which ended on 5 March 2014. The aim of the consultation is to explore how legislation can best be adapted in the digital age. The EU is focusing on cross-border licensing of copyright and the nature and scope of digital content rights.
  • eBooks. In 2011 the EU Commission announced that it had commenced a formal investigation against five major publishers (Hachette Livre, Harper Collins, Penguin (as they then were), Simon & Schuster and Verlagsgruppe Georg von Holtzbrinck) and Apple for engaging in anti-competitive practices which affected the sale of eBooks in the EEA. The publishers were accused of entering into agency agreements with Apple on the same key terms, which included a most favoured nation (MFN) clause. To avoid lower revenues and margins for their eBooks on the iBookstore, the publishers pressured other major retailers offering eBooks in the EEA to adopt this agency model, which had the effect of raising retail prices of eBooks in the EEA and preventing them from being offered at lower prices. In December 2012 all of the publishers, except Penguin, and Apple agreed to adhere to a set of commitments to address such anti-competitive behaviour. In July 2013 Penguin (or Penguin Random House as they now are) also agreed to adhere to such commitments. Like the other publishers, they have agreed not to prevent retailers from setting, altering or reducing retail prices for eBooks or to offer discounts or promotions for two years. The publisher has also agreed to terminate the relevant agency agreements with Apple and other retailers, as well as, agreed not to enter into any agreement relating to the sale of eBooks within the EEA that contains an MFN price clause for five years. These commitments are also binding on the other publishers involved in the investigation. The case demonstrates the EU’s commitment to ensuring a free market in the sale of eBooks and it will be interesting to see what impact the commitments will have on the European eBook market.
  • Defamation Act 2013. The new Defamation Act which came into force on 1 January 2014 introduces a requirement for claimants to demonstrate that serious harm was caused by the defamatory statement. The Act also includes a more flexible public interest defence. These changes favour publishers as they are likely to discourage claimants from bringing vexatious claims.
  • Orphan works. The EU introduced Directive 2012/28/EU to set out common rules on the digitisation and online display of orphan works. Orphan works are works that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. The Directive will allow libraries and archives across Europe to put substantial parts of their collections in a digital format.