MTP readers will remember Brad Holland’s excellent article documenting the struggle by artists against the “orphan works” legislation (“Orphan Works and the War on Artists“). The British have their own version of that legislation pending in the Parliament, the “Enterprise and Regulatory Reform Bill” which has in it the hated Clause 68 among others that would weaken creator rights. The bill is the legislative version of the controversial “Hargreaves Review” also known as the “Google Review” as it is the legislative wet dream of the anti-artist groups. In a procedural move called a Letter Before Claim, major news organizations have challenged the Google backed Enterprise and Regulatory Reform Bill–which may present a constitutional challenge to the way that the bill converts what should be legislative rulings on the property rights of artists into the decision of a Star Chamber of One.
According to the British Journal of Photography:
A consortium of news agencies that include Associated Press, Getty Images, Reuters, British Pathé, Press Association and the Federation of Commercial and Audiovisual Libraries has threatened to launch a Judicial Review into the government’s plans to change the UK’s copyright laws.
The world’s largest news agencies have delivered a Letter Before Claim to the UK’s business secretary Vince Cable, in what is described as the first step in the process of initiating a Judicial Review – a formal legal challenge to governmental planned legislation.
Andrew Orlowski writes in The Register:
The requested judge-led review hinges on the fact that the draft law implements copyright as a property right. The UK constitution trusts our elected Parliament, not a lone senior minister, to provide protection over citizens’ property – making Parliament the citizens’ guardian against seizure. However, the ERRB clauses allow a government figure to make startling changes to property rights on the hoof.
Supporters of Prof Hargreaves’ copyright review, including Google – which privately lobbied for weakening UK copyright and helped foment the planned overhaul – may now be entitled question the clumsy implementation strategy of the bureaucrats at the UK’s Intellectual Property Office (IPO), which masterminded the changes.
The IPO is an agency in the government’s Department for Business, Innovation and Skills, although critics refer to it as the office of “Intellectual Property Obliteration”. It has long sought to weaken copyright protection: it raced ahead of the Hargreaves timetable by inserting free-standing clauses on orphan works and extended collective licensing (which were not even mentioned in the Hargreaves key bullet points) into the general-purpose ERRB.
These amendments were proposed before the government had announced what it would do about Prof Hargreaves’ findings. Now rather than getting half a loaf, the agency’s top brass may not even end up with a bun.
The IPO believes copyright is a regulatory impediment, rather than a property right, and theory-based academics share its view. But this is a Humpty Dumpty approach to semantics. What matters is what copyright means in law, not what Humpty chooses it to mean, “neither more nor less”.