After Gower: Will ‘Fair Dealing’ Be Expanded in the UK??
In early December the British Treasury published the Gower Report on Intellectual Property, named after the former Financial Times editor who chaired the independent review. Wide-ranging in scope its conclusions are too diverse to enumerate exhaustively here, but it provides a fascinating snapshot of the state of debate and industry/academic opinion which can be gauged by browsing the submissions by organizations and individuals
One interesting proposal is that the UK introduce a broad fair use provision akin to that found in the United States since the 1976 when the common law exception was formalised in legislation. Gowers notes that:
“….transaction costs and …..uses consistent with basic rights…….These two arguments provide the rationale for ‘fair dealing’ or ‘fair use’ exceptions. There is concern that, at present, the UK exceptions, are too narrow and that this is stunting new creators from producing work and generating new value” (p.62)
Other suggestions relating to exceptions are the creation of a private copying exemption similar to that existing elsewhere in Europe but without the introduction of a levy to compensate rightsholders. In addition, he asks that the British government press for an amendment to the EUCD (another pig’s dinner cooked up the Commission) so as to introduce an exception for ‘transformative use‘ into Article 5 which lists all exceptions permitted in member states.
Continuing this bizarre thread of sane suggestions Gowers also proposes an amendment in the CDA 1988 to protect acts of pastiche, parody and caricature, which fortunately are already present on the Article 5 list.
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