[transferred from www.scibella.wordpress.com july 2011]
Sorry Emily to have to do it this way round but I’ve tried twice to add a comment to your very interesting blog report on visiting the IPO
and lost it in the blogger works at the last step. Bloody annoying.
My comment is as follows:
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“The concept of fair use cannot be implemented in the UK as it lies outside of the scope of Article 5 of the EU Information Society Directive, and even if it could it would be an unpopular solution as a result of the amount of litigation it would generate. But, as the Prime Minister has raised the fair use question, the Hargreaves Review must make recommendations on what could be done in place of fair use to better drive innovation”
True enough the whole body of USA fair use runs against the EU infosoc directive but a restricted version, recommendation 11 of the Gowers Review on transformative works could be unilaterally introduced in the UK. The EU have an IViR (Amsterdam) study that says Gowers seeking change at EU level is wrong as EU directive does not cover harmonisation of “adaptation”. See the Scibella submission to the IP review http://bit.ly/i5Biq3 for more detail.
IViR spell it out it even more clearly in their response to the EU green paper on copyright in the knowledge economy http://bit.ly/hi6Jdq about user created content
“First, systematically, this question seems to derive from a misunderstanding of the legal structure of the Directive. The Directive does not harmonise a right of adaptation, nor does its catalogue of permitted exceptions relate thereto. In other words, insofar as an exception would allow certain transformative uses, it would have no place in a revised Directive, unless the Directive’s scope would be broadened to include a right of adaptation. Absent harmonisation of the adaptation right, Member States remain autonomous and may elect to codify exceptions or limitations to this right to permit certain non-commercial transformative uses.”
On the issue of litigation costs I note that the Guardian has reported
“The Hargreaves inquiry could create a fair use review panel to rule over test cases, without the requirement for expensive lawyers” http://bit.ly/g9BY00
Well ,we’ll just have to wait and see.
Thanks for the steer in your post on linking Gowers and economic benefits which I tried to do in my submission. Pity they haven’t published it and won’t tell me why so far. Sometimes the ways of Whitehall surpasseth understanding , well my humble understanding anyway.
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