stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

A Spanner in the Works

The Intellectual Property Office (IPO) has announced a three month consultation starting this October on legislation arising from the Hargreaves Review. Nothing is to hold up their plans for Orphan Works (OW) and Extended Collective Licensing (ECL) schemes. The IPO has de-coupled the Digital Copyright Exchange (DCE) from OW/ECL in order to clear the decks. The DCE will not be run by the government, does not require legislation, and is on those grounds excluded from the October consultation, which will focus on legislation alone. The IPO hopes it will be set up simultaneously, and privately, but failing that OW/ECL is to go ahead regardless.

The DCE had been central to Hargreaves' plans for the Diligent Search which will be essential before any work can be declared an orphan (and then used without the rights-holder’s permission). Alternative search procedures will therefore be central to the forthcoming consultation. Searches would be greatly simplified, and the need for searches largely obviated, if we had the automatic, unwaivable Moral Right to our names on our pictures. The IPO clearly has no intention to legislate for that, either. Creators will have to re-introduce the case for moral rights during the consultation - they do clearly require legislation - but nobody is listening. The IPO is racing ahead with OW/ECL, knocking all obstacles aside, in the hope of establishing a UK scheme before Europe issues its Orphan Works Directive and thereby limits the scope of the IPO’s ambitions.

There is however one major obstacle that neither they, nor anyone else, has so far considered. Stop43 has drawn to the IPO's attention the possible consequences of the recent judgement in the case of Twentieth Century Fox (and others) versus BT. Brought under the Copyright, Designs and Patents Act 1988 Section 97A, Mr. Justice Arnold ruled that:

The legal context for the present application consists primarily of (a) domestic and European human
rights legislation and (b) three European Union directives relevant to copyright enforcement and the domestic
implementing legislation

...and held that Newzbin2’s piracy of the Studios’ copyright property, facilitated by BT, was a breach of the Studios’ human rights under Article 1 of the First Protocol of the European Convention on Human Rights, enacted in UK law in Article 1 of the First Protocol of the Human Rights Act 1998.

BT have stated that the action was a test case and they will not appeal the judgment. It therefore stands as UK case law and sets legal precedent. By ruling that copyright is a property right protected by human rights law, Mr. Justice Arnold has thrown a legal spanner into the IPO works. All UK legislation must comply with human rights law.

The IPO will now have a difficult job explaining how using our copyright works without our knowledge or consent through OW/ECL schemes will not constitute an infringement of our human rights.