Copyright, the writer’s shield and sword, is up for further overhaul. The European Parliament’s directive of 22 May seeks to promote further copyright "harmonisation" in the community "with particular emphasis on the information society", which presumably means users of the internet. The preamble to this document – 61 paragraphs of high-minded aspiration explaining the need for the proposed changes – underlines the need for a "high level of protection to ensure the maintenance and development of creativity", which in turn requires an "appropriate reward for the use of an author’s work".
How far national implementation of the directive – the deadline for which is 22 December 2002 – will in fact benefit writers and journalists is an open question. While recognising the basic principle of an author’s prerogative to control the use, electronic and otherwise, of his material and to reap an appropriate reward, it is in the area of "discretionary implementation – Article 5 of the directive, covering exceptions and limitations – that one fears may be open to exploitation. "Fair compensation" (whatever that may be) is to be available for photographic reproductions on paper, for reproductions on "any medium for private non-commercial use" and for reproductions of broadcasts by hospitals or prisons.
But no reward is required for non-
commercial public library, school, museum or archive reproductions, or for "ephemeral recordings" by broadcasting organisations by means of their own facilities for the purpose of preserving "exceptional" archival material. There is a further list of 15 miscellaneous categories, some already covered by the Copyright Act, of non-infringing uses which will likewise leave the author empty handed. Perhaps the most significant are political speeches and extracts from public lectures, subject only to a "sufficient acknowledgement" requirement; and the use for the purpose of caricature, parody or pastiche.
Hitherto a quicksand of legal uncertainty – depending as much on whether a "substantial part" of the original copyright work has been taken as on the scope of, and room for, a defence of fair dealing – too many satirists and parodists have been its victims. As an entertaining art form it needs encouragement rather than repression, and the present opportunity to define and liberate its boundaries should not be missed.
A draft Statutory Instrument is expected later this year, on which comments will doubtless be invited. The literary community will then be able to judge for itself whether the suggested levels of compensation on offer are fair; and even more whether the Article 5 tests, governing the scope of the proposed exceptions and limitations – that they "must not conflict with a normal exploitation of the work" and "do not unreasonably prejudice the legitimate interests of the rights holder" – are satisfied.
This, more than anything, will generate a wide-ranging, and probably heated, debate among journalists and lawyers alike.
Antony Whitaker, legal consultant with Theodore Goddard