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Media organisations question Government's legal basis for copyright reforms

A number of major media organisations have threatened to launch a legal challenge to proposed new laws affecting the UK's copyright framework.16 Jan 2013

In a 'letter before claim' sent to Business Secretary Vince Cable, media groups including Getty Images, Associated Press, the Press Association and Thomson Reuters called for a number of changes to made to the Government's draft Enterprise & Regulatory Reform (ERR) Bill, which is currently progressing through Parliament.

The consortium said it would apply to the High Court for a judicial review into the ERR Bill "unless this matter can be resolved to our satisfaction".

The named groups, which claim to represent the views of a range of other media organisations, primarily raised concern about the prospect of future rules on exceptions to copyright being introduced into UK law through statutory instrument and not via a full Act of Parliament. The issue has been raised during debates in both the House of Commons and House of Lords previously.

The Government has previously stated that it intends to use the provisions within the ERR Bill as a mechanism for bringing in reforms to copyright exceptions, but has said that its purpose for doing so in the manner it intends is to ensure that a 10 year jail term can be imposed on infringers of those rules when they are introduced.

Under the draft ERR Bill, the Business Secretary would be able to add or remove exceptions to copyright by introducing new regulations. The regulations would be contained in a statutory instrument, a draft of which would need to be "laid before and approved by resolution of each House of Parliament" before it could come into force. However, statutory instruments are not subject to committee scrutiny or Parliamentary debate as is the case with Acts of Parliament.

In a statement the media consortium said that it was concerned that the current drafting of the ERR Bill would allow those future rules on exceptions to be introduced "at short notice by future governments via `the back door`". In addition, it questioned the legal basis on which the Government has said reforms to copyright exception rules could be brought through statutory instrument.

"The stated purpose of the Government in relation to Clause 66 [of the ERR Bill] is ... to provide a solution to meeting a technical need, specifically to circumvent the restriction imposed by [provisions within the European Communities Act (ECA)] and to be able to maintain the higher penalties [for copyright infringement] permitted by [existing UK copyright laws] in respect of any changes (that is to say, any narrowing or removal of) copyright exceptions that would already have been permitted under the ECA," the consortium said in its letter.

"However, if this is indeed the true purpose, it is clear that the Government should not be creating any wider power to change copyright exceptions beyond that which would be permitted under the ECA, or promoting the creation of a power on the erroneous basis that the ECA itself enables copyright extensions to be widened; it should only be seeking a power that would enable the Government to maintain higher penalties in respect of infringements," it added.

"We are not aware of any occasion of when the Government has lawfully made changes to extend the copyright exceptions pursuant to [the provisions of] the ECA other than when such changes were required by EU law. [We] support any purpose or objective in respect of protecting copyright effectively by maintaining higher penalties for copyright offences. But [we] strongly dispute the way in which it is being proposed to achieve that stated purpose and objective in the current wording of Clause 66," the consortium said in its letter.

Last year the Intellectual Property Office (IPO) told Out-Law.com that Parliament already has the power to change the rules around exceptions to copyright through secondary legislation.

"The power to introduce, narrow or extend copyright exceptions through new regulations already exists under the European Communities Act," the IPO spokesman said. "However, the maximum penalty that can be levied for any offence under regulations introduced through the powers of that Act is two years indictment. This is in contrast to the maximum penalty of ten years imprisonment that infringers can be sentenced to under the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002."

"The Government needs to be able to react to decisions of domestic courts and those of the Court of Justice of the European Union and introduce any necessary changes quickly into UK law. Parliament cannot use a statutory instrument passed under the European Communities Act to achieve that compliance without reducing the maximum penalty for infringement to two years imprisonment," he said.

Under the European Communities Act Government ministers or departments have the right to introduce new orders, rules, regulations or schemes, in order to implement EU laws into national law in the UK, subject to some restrictions.

Vince Cable has previously offered his "assurances" that future changes to copyright law would be subject to "proper parliamentary scrutiny" and that, in practice, the "order-making" powers would be used to "maintain the level of criminal penalties" for infringement.

However, the media consortium said that it believes the Government can achieve that "stated purpose" without having to bring the copyright exception reforms, to which the penalties would relate, in through statutory instrument.

"[We] ... have fundamental and very serious concerns about the true scope of the powers proposed by Clause 66, whether those powers are indeed ones that already exist under the ECA, and consequently the lawfulness and propriety of the action taken to promote Clause 66 in the ERR Bill in its current form, given the stated purpose and objectives that are said to underpin it," the consortium said in its letter to the Business Secretary.

Last month the IPO outlined plans to reform rules around some existing exceptions to copyright as well as to introduce some new exceptions into the UK framework. At the time it said it would introduce draft legislation next year, with the reforms contained in statutory instruments. It claimed this approach would "minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner". The reforms should come into force in October this year, it added.

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