February 4, 2019

In 2014, several different statutory instruments were passed to amend copyright law. The Government now intends to complete a post-implementation review (PIR) of the various changes made. These PIRs evaluate whether the regulation has met the intended objectives. They are usually carried out five years after implementation.  A PIR gathers evidence, which will be summarised in a report and published. The report will consider whether the regulation: is still required; is not required; or should be amended. The formal criteria are whether the regulation:

• has achieved its original objectives;
• has objectives that remain appropriate;
• is still required and remains the best option for achieving those objectives; and
• could be achieved in another way which involves less onerous regulatory provision to reduce the burden on business and/or increase overall societal welfare.

PIRs should be proportionate, and if the impact of a policy has been estimated at £5 million then it will only require a de minimis review. The impact figure is the net cost to business per year, as reported in the original impact assessments.

The IPO has issued a call for evidence to obtain data on the impact of three changes:

the archive exception: the original impact assessment expected a benefit of over £5 million, so a full PIR will be completed;

copyright exceptions on research and private study, text and data mining, education, public administration, quotation, and parody, caricature and pastiche: the combined impact assessments either estimated an impact of less than £5 million or could not quantify the impact at the time, so a de minimis PIR will be completed unless data is received to suggest that a full PIR should be conducted; and

extended collective licensing and orphan works: the combined impact assessments estimated an impact of less than £5 million, so a de minimis PIR will be completed unless data is received to suggest that a full PIR should be conducted.

Given that the proposed European Copyright Directive is not yet finalised, any areas potentially affected by that Directive remain in the review process. The IPO says that if the Directive is agreed, it may need to consider removing the following areas from the scope of the PIRs: archive exception; text and data mining exception; the extended collective licensing framework; and the orphan works exception.

Three statutory instruments will NOT be reviewed as part of the PIR process and are not included in this call for evidence:

• codes of conduct for collective management organisations: these Regulations were revoked following implementation of the Collective Rights Management Directive (2014/26/EU);
• private copying exception: this exception (under the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014) was quashed by the High Court following judicial review (R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin)); and
• disability exception: this exception was updated by the Marrakesh Treaty Directive (2017/1564/EU) for which new impact data was collected.

The consultation asks specific questions on the three areas being reviewed. The IPO is asking for answers to these questions and any more general evidence on the impact of these changes to copyright law. The deadline for responses is 10 April 2019. To access the consultation, click here.