stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Parliament_Logo_imageout of copyright?

Copyright is yours automatically

If you create something, you automatically own it and it becomes your Intellectual Property. This right is granted to you by the Berne Convention for the Protection of Literary and Artistic Works, which the UK signed in 1886. Your automatic ownership right is called ‘copyright’, which literally means ‘your right to authorise copying of your creation’.

This right is yours alone, unless you’ve signed it away in writing: the Berne Convention states: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form’.

Because it’s your property, you can trade your copyright creations just like any other property, make your living from doing that, and leave your Intellectual Property to your children in your Will. These are human rights. Your copyright lasts until 70 years after your death, after which your Intellectual Property enters the ‘public domain’ and anyone can do anything they like with it.

Copyright and personal expression

As well as it being their property, people also express themselves though the music, writing, films, photographs, illustrations, and other things they create, and a democratic society requires freedom of expression. This requires people to be able to express themselves, and it also requires other people to be able to gain access to those expressions, because these are Human Rights.

Limits to copyright

To allow for freedom of expression and democratic society to function, copyright can have exceptions. In other words, for certain uses, you lose ‘the exclusive right of authorizing the reproduction of these works’ and anyone can make use of them for these uses without first asking your permission, or paying you any money if you would normally require it, but only:

  1. in certain special cases,
  2. provided that such reproduction does not conflict with a normal exploitation of the work
  3. and does not unreasonably prejudice the legitimate interests of the author.

This is written in the Berne Convention Article 9 (2) and is known as the Three-Step Test. All copyright exceptions must pass this test.

Powers, regulations, secondary legislation, and Parliament

We live in a market economy, and to function properly a market economy must have strong, enforceable property rights. How could you trade your property if you couldn’t enforce your ownership of it in the first place?

Therefore, exceptions to property rights are a REALLY BIG DEAL. In the case of copyright they are an even bigger deal because, as the European Court of Justice puts it, a copyright work is also ‘the author’s own intellectual creation reflecting his personality’. It can be regarded as representing its creator. This is why you have ‘moral rights’; why your copyright is your human right; and why your right not to be ‘arbitrarily deprived of your property’ is also your human right.

With the copyright clauses in the Enterprise and Regulatory Reform Bill the government intends to award itself the power to constrain, diminish and confiscate the property and human rights of UK citizens, and relegate the detailed implementation of this power to secondary legislation. Moreover it intends to do this on the basis of inaccurate, incomplete and misleading Impact Assessments. This is of serious democratic and constitutional concern.

That is why Clause 66 must change, because as it stands it allows an unelected bureaucrat to strip you of your rights, and with them quite possibly your income, your job, your career, and your children’s inheritance.

Oh, and your children’s future incomes, careers, jobs, and their children’s inheritances, too, because increased copyright exceptions will make it much more difficult for them to live as professional creators. What economic opportunity will our creative children have in 15 years? The current debate has an implicit inter-generational conflict.

That is why any changes to copyright must be debated properly by Parliament and not left to the whims or special interests of unelected bureaucrats or the government of the day.

Exceptions to Copyright - the problems