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Senior judge says the UK needs a new Copyright Act

The UK government should create a new Copyright Act to address changes in technology, developments internationally and in the EU and a range of problems and issues that have arisen with existing UK copyright laws since they were introduced in 1988, a senior judge has said.29 Apr 2015

Mr Justice Arnold, a High Court judge in England and Wales, said the Copyright, Designs and Patents Act (CDPA) is "rooted in the analogue world".

"It is 26 years since the 1988 Act was passed," Mr Justice Arnold said. "It is 37 years since the Whitford Committee's report [which prompted the creation of the CDPA]. During that period, technological change relevant to copyright has accelerated and has become more transformative."

"We have had the advent of the world wide web, the whole online world including internet television and social media, smart phones, tablet computers, and now 3D printing. Furthermore, these technological changes have led to massive changes to the business models for exploiting copyright works," he said.

The judge said there are "systematic problems in the design" of the CDPA that have worsened as technology has changed and that copyright law in the UK is currently "inaccessible to creators, exploiters and users of copyright works, which is to say, everyone in the UK". This is because of the length and complexity added to the CDPA as a result of updates made to reflect changes in EU legislation and case law since 1988, he said.

The failure to properly implement EU legislation relevant to copyright since the CDPA was introduced and the need to reconsider the "interface" between copyright laws and laws on design rights as further reasons why copyright reform in the UK is necessary, he said.

Mr Justice Arnold said there are "a number of different approaches" to reforming UK copyright laws that could be adopted, including a "pure consolidation" of the existing copyright framework, a recasting of the CDPA based on the wording of EU copyright laws, or undertaking a "holistic review" of UK copyright.

The judge said he would like to see a departmental committee set up by the government to lead on delivering a new Copyright Act. He said the "departmental committee model of law reform" had served the UK "fairly well" in the past but could be improved upon.

Mr Justice Arnold said any departmental committee must be compiled of "appropriately qualified" people with experience of copyright laws or industries and "include a legal academic". He said reforms proposed by such a committee should also "require a higher standard of evidence than was accepted in the past" and "conduct its proceedings with more transparency than the Whitford Committee did".

"[The departmental committee model used to inform copyright reform previously in the UK] had the advantage of providing a forum for the often contentious debates that copyright law engenders and of providing a mechanism for trying to resolve such debates," Mr Justice Arnold said. "The only superior model is that provided by the Law Commission, but I doubt that the Law Commission would want to undertake a review of copyright law given its modest resources and other commitments."

The judge said that two government-commissioned reviews into copyright law reform in the past 10 years has "delivered some worthwhile incremental reforms" but that the reviews have "exacerbated" rather than resolved problems he believes exist with the current copyright regime in the UK. The Hargreaves review led to the creation of new exceptions to copyright in the UK.

"If the government had appointed a departmental committee in December 2005, we could have had a new Copyright Act on the statute book by now," Mr Justice Arnold said. "I suggest that it is time for a new Copyright Act and that a departmental committee should be appointed to make recommendations for the framing of the new Act."

Mr Justice Arnold's comments were made in a speech delivered last year but which were published only earlier this month.

The European Commission is expected to outline plans to modernise EU copyright laws later this year.