REPORT ON THE INTELLECTUAL PROPERTY (UNREGISTERED RIGHTS) (JERSEY) LAW 201-
Overview
The intellectual property rights covered by this Law provide the commercial foundation stone of many parts of the creative industries. This sector includes music, publishing, broadcasting, software, computer games and film. These are industries where content is increasingly made available in digital form and online. The most recent economic estimates for the creative industries in the UK show that their contribution to the economy is above average. The figures released in February 2010 show that the sector (excluding crafts and design for which GVA data is not available) accounted for 6.2% of Gross Value Added (GVA) in 2007, with an average growth of 5% per annum between 1997 and 2007, compared to an average of 3% for the whole economy over this period. Software, computer games and electronic publishing have shown particularly impressive growth in the UK with an average of 9% per annum. Employment in the creative industries and creative jobs within businesses also grew from 1.6m in 1997 to just under 2m in 2008 in the UK, making the average growth rate 2% per annum compared to 1% for the whole economy.
Copyright, the main intellectual property right in this draft Law, provides an important incentive to those creating, and investing in the creation of, various forms of content within the creative industry sector. It provides exclusive rights, which can be exercised to enable the value of that creativity to be monetised. The existence of copyright therefore encourages creative endeavour by the rewards for exploiting protected content that derive from the ability to control this due to the protection. This can lead to new and exciting content that everyone can enjoy. It is therefore in the public interest to provide a copyright framework that provides rights for creators and investors.
Current copyright law in Jersey, which was devised in 1911, does provide exclusive rights, but they were developed for a world very different from the one we live in today. Many ways of copying, transmitting and using content that are commonplace today, such as scanning, broadcasting and making available on the internet, were unknown when the current copyright law was devised. Moreover, a number of rights related to copyright, which are also important to the creative industries and which are recognised by many other countries, do not exist at all in Jersey. If Jersey wishes to be an attractive place for the creative industries to locate and do business, then the current law must be updated. The fact that much of the sector increasingly operates in the digital and online world means that the location of these industries can be very fluid. In the knowledge economy sustained by the internet, creative content can be created in one territory, distributed from another and consumed anywhere, so creative businesses, and those licensed to disseminate creative content, increasingly operate in a global marketplace. A particular business may therefore relocate to a different jurisdiction if the legislative framework there is supportive. The intellectual property rights covered by this draft Law are, of course, not the only laws relevant to where a company in the creative industries’ sector might locate, but rights fit for the digital age must be a cornerstone of what is needed to safeguard Jersey’s competitive position.
It is also in the public interest that copyright and related laws provide an appropriate balance by ensuring that rights do not constrain certain limited and specific uses of content. There are limited exceptions to rights in current copyright law; exceptions provide for some narrow and distinctive uses of protected content that can be undertaken without permission from the owner of the rights. But these exceptions were, like the exclusive rights, devised for a world without much of the technology familiar to everyone today, for example a world without photocopiers and personal video recorders. This draft Law therefore also provides an opportunity to modernise the balance in copyright law by better taking into account the interests of various groups, including the education and library sectors.
This draft Law on unregistered intellectual property rights is therefore being presented to the States Assembly for approval in order to give Jersey a modern, but balanced, legal framework that protects creative content. The framework will underpin Jersey’s position as an attractive place to do business in the area of e-commerce in particular. It will ensure that Jersey provides unregistered intellectual property rights comparable to those available in other territories at the forefront of the knowledge economy.
Intellectual property laws in general
Copyright and other unregistered intellectual property rights are the focus of this Law. These are rights which come into being automatically when the material that can be protected is created and any relevant qualification provisions, such as on the country of origin, are met. These unregistered rights do not protect ideas underlying what is created; they protect the particular expression only. Also, the unregistered rights are not monopoly rights; they do not, for example, restrict independent creation of something very similar, that is something that has been created without copying. They are, however, rights which are still crucial to the success of the creative industry sector. This sector may benefit from other types of intellectual property rights too, but it is copyright in particular that many parts of the sector depend on.
This draft Law is the first part of a larger exercise to modernise intellectual property law in the Island more generally. The laws in Jersey relating to registered rights, that is patents, trade marks and registered designs, are, however, already much more modern than copyright law. Protection for plant varieties is also usually provided by a registered intellectual property right. There is no such law at the moment in Jersey and this is something on which proposals are likely to be brought to the States Assembly in the future. This is a right that the agricultural and horticultural sectors in Jersey may benefit from. But this draft Law will not have any effect on protection for plant varieties.
Of the registered intellectual property rights that already exist in Jersey, trade marks can be important to any business offering goods or services, and registered design protection can overlap with the automatic design right provided by this draft Law (and the draft Law makes appropriate provision to deal fairly with this overlap). Patents, however, tend to be most important to those businesses developing goods in the science and technology areas. But the increasing importance of technology to new business models delivering creative content to consumers, such as catch-up television services like BBC iPlayer and music streaming services like Spotify, means that those developing such services may sometimes find patents helpful to protect the innovative technology they might create. Patents protect inventions and so can, unlike copyright, protect ideas as such. Also, patents and the other registered intellectual property rights provide monopoly rights so that what is protected does not depend on whether or not there is copying. Future work by Economic Development Department will need to consider very carefully what, if any, changes to the legislative framework is appropriate in the area of registered rights. But the decisions to be made on this do not impinge on what provision is appropriate in the area of the unregistered intellectual property rights as covered by this draft Law.
International conventions and treaties
There are a number of international conventions and treaties in the intellectual property area, as well as obligations in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which is part of the agreement on the World Trade Organisation (WTO). If Jersey were to desire membership of the WTO, then complying with TRIPS would be essential, and this would not be possible without modernisation of copyright law and putting in place some of the other provisions in this draft Law. However, even without WTO membership, there are likely to be advantages to Jersey’s accession (or extension of the UK’s accession to cover Jersey) to certain other international conventions and treaties in the area of intellectual property rights.
For the unregistered rights covered by this draft Law, protection in other countries of material having its origin in Jersey may largely already arise as a result of obligations that those other countries have in international treaties and conventions. For copyright, the automatic protection defined in treaties and conventions that a country must provide in its law must in general be extended to material having its origin in any other countries or territories that belong to those treaties and conventions. The UK’s membership of the relevant treaties and conventions should mean that much material having it origin in Jersey will already be protected in other convention countries by reason of the creator being a British national and/or the material being first published in the UK. However, this may not cover everything of Jersey origin without specific extension of those treaties and conventions to Jersey. The same will be true for some of the material protected by other unregistered rights covered by this draft Law.
If the States Assembly approves this draft Law, the intention is therefore that Jersey should seek extension of the following conventions and treaties relating to unregistered intellectual property rights to the Island:
(a) International Convention for the Protection of Literary and Artistic Works (Paris Act 1971) (the Berne Convention) – this is the main copyright convention that was first agreed in 1886 and has been amended a number of times since then. It covers the rights of authors in literary, dramatic, musical and artistic works and rights in cinematographic works. It provides for copyright protection without any formalities, such as registration, and establishes the principle of national treatment that a contracting party must give to works having their origin in the territories of other contracting parties.
(b) Universal Copyright Convention (as revised in Paris in 1971) (the UCC) – this is the other principle copyright convention, although now it is very rare for a country to belong to the UCC and not the Berne Convention, not least because the copyright provision in the TRIPS Agreement specifically requires compliance with most of the Berne Convention. The UCC covers very similar areas to the Berne Convention, but with some more flexibility on some issues, particularly by permitting contracting parties which have requirements on formalities for copyright protection to apply to retain them.
(c) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome 1961) (the Rome Convention) – this convention covers rights similar to those in the Berne Convention, but in the area of what are often called related or neighbouring rights. It covers rights for performers in their performances of drama, music and so on and recordings of those performances, rights for producers in their sound recordings and rights for broadcasters in their broadcasts and in fixations of their broadcasts.
(d) WIPO Copyright Treaty (Geneva 1996) (the WCT) – this and the WPPT are the so-called internet treaties. The WCT develops the protection provided by the Berne Convention to ensure protection for additional types of works (computer programs and databases), and to provide additional rights for works relevant to their exploitation on the internet, such as a right to control making material available on demand. It also imposes obligations in relation to circumvention of or interference with technological measures protecting copyright works and electronic rights management information accompanying digital copies of protected works.
(e) WIPO Performances and Phonograms Treaty (Geneva 1996) (the WPPT) – this is very similar to the WCT but applies to related rights. It expands on what is covered by the Rome Convention for exploitation of protected material on the internet in respect of the rights of performers in their performances and producers in their sound recordings. It does not cover the rights of broadcasters, which also come within the scope of the Rome Convention; broadcasters’ rights are the subject of a draft treaty that has not yet been agreed.
WIPO, the World Intellectual Property Organisation, is the UN body that provides a forum for discussing intellectual property issues and negotiating new or amended treaties. It administers the Berne Convention, the WCT and the WPPT. The UCC is administered by UNESCO and the Rome Convention is jointly administered by WIPO, UNESCO and ILO.
The UK is a member of all the above treaties and conventions relating to unregistered intellectual property rights. Extension of the UK’s membership of these treaties and conventions to Jersey would, of course, require a formal request to the UK Ministry of Justice to be made in due course. The UK Intellectual Property Office, which leads on the development of intellectual property policy in the UK, has, however, been shown this draft Law with a view to identifying early any problems in terms of compliance with these treaties and conventions should such a request be made. We currently believe that the draft Law is fully compliant with all the requirements of the above treaties and conventions relating to unregistered intellectual property rights, as well as the copyright and related rights provision in the TRIPS Agreement.
Current copyright law in Jersey
Copyright law in Jersey is provided by two UK Acts of Parliament dating from the early 1900s, the Musical Copyright Act 1906 and the Copyright Act 1911. The 1906 Act is essentially directed at criminalising dealing in pirated copies of musical works that are protected by copyright. The 1911 Act consolidated earlier laws in the UK by providing the details on how copyright applies to all types of protected works in one statute, and abolishing any remaining common law rights of the nature of copyright in literary, dramatic, musical or artistic works. The 1911 Act was made applicable to Jersey by an Order in Council in 1913.
One of the main principles in all copyright laws, namely provision of a right to control copying of creative content such as books, music and artistic material, dates from before 1911. The 1911 Act re-enacted this earlier right for many types of creative content and clearly established the possibility of protection for relatively new media at that time, namely films, as a type of dramatic work, as well as extending protection to sound recordings and works of architecture. Case law has even developed the apparent boundaries of the 1911 Act to accommodate much more recent types of copyright works, specifically computer programs. The 1911 Act does provide for copyright as an automatic right not needing to be registered and also enacts certain limited exceptions to rights, such as fair dealing with a protected work for the purposes of research or private study.
Stretching the meaning of current law to cover advances in technology and ways of consuming creative content that have developed over the last 100 years is, though, certainly lacking in transparency at best. Thus, digital technology, broadcasting creative content to consumers and making content available on demand on the internet all give rise to concerns about how current copyright law applies. Given the very broad definition of “copying” in current copyright law, and that temporary or permanent copies would often be made during acts of broadcasting or exploitation of content on the internet, the courts could possibly interpret the current law in Jersey to give rise to a very similar effect with respect to these activities to that in countries with more modern and sophisticated laws. But not changing the current law and instead relying on cases to be heard by the courts and decided in an appropriate way leaves Jersey with an uncertain legal framework for protection of valuable creative content.
Current UK copyright and related law
The 1911 Act (apart from the provision on legal deposit of any book, journal and so on published in the UK) was replaced in the UK by the Copyright Act 1956. That law provided protection for films as such, as well as providing the first specific protection for broadcasts. The 1956 Act was amended on a number of occasions, including in 1985 to provide for computer programs to be clearly protected as a type of literary work. Limited rights for performers to enable action against dealing in illegally made recordings of performances was first provided in the UK in 1925, with performers’ rights strengthened in additional statutes in 1958, 1963 and 1972. However, the Copyright Act 1956 and all the legislation relating to performers was repealed and replaced in the UK by provision on copyright and related rights in the Copyright, Designs and Patents Act 1988. (The 1988 Act is not the main UK law on registered designs and patents, but it was used as a legislative vehicle to make some amendments to these areas of law. Those amendments to these registered intellectual property rights are not relevant to the provision in this draft Law, which is about unregistered intellectual property rights only.)
The 1988 Act provided another major overhaul and updating of copyright and related rights law, in part to match revision of the Berne Convention and in part to address policy concerns that had been identified. It continued the recognition of protection for computer programs by copyright and also confirmed rights in cable programmes as well as wireless broadcasts. The 1988 Act provided a full range of economic rights consistent with international law at that time, and included some protection against dealing in devices that circumvent technical protection measures applied to copyright content to prevent illegal copying. It also made dealing in devices that allow unauthorised reception of conditional access television services unlawful. It updated and expanded the provision on exceptions to rights, such as by taking into account the increasing use of video recorders to copy broadcasts by legalising this when done domestically for the purpose of time-shifting, or in schools for educational purposes. In addition, the 1988 Act introduced much-expanded protection for the moral rights of the author of a copyright work, particularly the right to be identified as the author and the right to object to derogatory treatment of the work.
The provision on copyright and related rights in the 1988 Act has been amended a number of times since it came into force in the UK on 1 August 1989. A number of the amendments have been to implement provision in the seven EU Directives on copyright and related rights, which were adopted by the EU to provide greater harmonisation of laws than would arise from international treaties and conventions alone. One of the most important of these Directives, the 2001 Directive on copyright and related rights in the information society, is in turn the EU’s interpretation and expansion of the obligations in the so-called internet treaties of 1996, the WCT and WPPT. In many ways the law in the UK as enacted in 1988 was already consistent with those treaties, but a number of changes in the detail were still necessary to comply with the Directive. The areas covered by other Directives include term of protection, rental and lending rights, protection of computer programs and databases, and the treatment of satellite broadcasts. The 1988 Act has also been amended several times since it’s enactment for other reasons, including to improve the remedies for enforcement of rights, especially by the criminal law, in the light of widespread and damaging piracy of music and films in particular. Another amendment introduced specific exceptions to rights to enable charities, schools and so on to produce publications in alternative formats to make them accessible to visually impaired people. Moral rights for performers, similar to those provided for authors of copyright works, have also been added to the 1988 Act in recent years.
The 1988 Act as amended is therefore still the principle statute on copyright and related rights in the UK. The most recent legislative changes in the UK relevant to copyright are contained in the Digital Economy Act 2010. This Act amends the 1988 Act to increase the penalties for the copyright offences when they are dealt with in a magistrate’s court. (The Digital Economy Act also, amongst other things, introduces provision into the UK Communications Act 2003 about obligations that internet service providers will have to send warning letters, and take other action, subject to an agreed code or one imposed by OFCOM, to those illegally sharing copyright-protected content online.)
The provisions on copyright in the 1956 Copyright Act and the Copyright, Designs and Patents Act 1988 could have been extended to Jersey, but this has never been done. The Copyright Act 1911 has, though, continued to be preserved in so far as it applies to the Island.
Main features of this Law
This draft Law is highly complex and technical and has given rise to a number of challenges for those engaged in its drafting. This is why there have been considerable delays in bringing a final draft of the Law to the States Assembly, but it is a very important piece of legislation, which modernises an area of law that has been allowed to fall into serious disrepair. It is a law that is vital if Jersey is to establish a reputation as a major world player in the area of e-business, a type of business that is increasingly conducted in a global marketplace from locations which offer the most favourable legislative frameworks. The creative industries, which depend on the unregistered intellectual property rights provided by this Law in both the physical and online worlds, have in recent years typically shown rates of growth exceeding the average across all business areas.
Nearly half of the draft Law relates to copyright. Rights related to copyright and certain related matters are provided in the remainder of the draft Law, and in a number of cases given the similarity of this other provision to the provision on copyright this is provided by reference to the copyright provision. What is covered by each Part of the draft Law can be summarised as follows:
- Part 1 restates and updates the law on copyright. Chapter 1 defines terms that are then used consistently throughout the draft Law. Chapter 2 sets out what material may be protected by copyright, namely anything falling within the broad definitions of original literary, dramatic, musical and artistic works, published editions, sound recordings, films and broadcasts. (A literary work for example is defined in Chapter 1 to include computer programs and certain types of database.) The Chapter also defines who will qualify for copyright protection, who will be the first owner of copyright and how long it will last, with these terms of protection matching provision in EU law. The economic rights of a copyright owner are provided in Chapter 3. These cover exploitation of protected content in the physical and online environments and are consistent with the requirements of the most up-to-date conventions and treaties, as are the moral rights for authors in Chapter 5. Chapter 4 makes extensive provision on limited exceptions to rights and includes a power to amend the provision in this Chapter by Regulations so that there can be a more rapid response to changing needs in the future. How the property rights can be bought and sold, licensed and otherwise transferred is covered in Chapter 6, and both civil and criminal remedies for infringement of rights are in Chapter 7. There is a significant amount of regulation on copyright licensing by in particular collective licensing bodies in Chapter 8, with the possibility of adjudication on the terms and conditions of licences by the licensing authority. Finally, Chapter 9 makes provision on a few additional matters, including some special rules about ownership of copyright created by or for the States Assembly, the States or the Crown.
- Part 2 makes provision on database right, a right related to copyright but which protects the investment in obtaining, verifying or presenting the contents of a database, rather than any intellectual creativity in the selection and arrangement of the contents where copyright protection may apply. This distinction arises from EU law, and this Law essentially copies that model. Chapter 1 of this Part covers the nature and ownership of the right, and ensures that the much shorter duration of the right compared to copyright matches EU law. Chapter 2 makes provision on exceptions to rights, which are similar to the relevant ones of those applying to copyright. Chapters 3 and 4 of this Part on dealing in, infringement of, and licensing of database right essentially match, or apply, the relevant provision applying to copyright, except that there are no criminal remedies for infringement of database right.
- Part 3 provides publication right, a right that applies where a person publishes for the first time a copyright work that was never published during the term of copyright protection. This right, which also arises from EU law, may in due course be particularly valuable to libraries and archives holding very old manuscripts and amateur photographs in their collections. The rights, exceptions to rights and so on are essentially the same as for copyright, but the term of protection, from the point of first publication, is much shorter than the copyright term of protection.
- Part 4 does not provide rights as such, but provision about technical protection measures and electronic rights management information that may be used by rights’ owner to protect, manage, monitor and license their rights. This Part essentially provides remedies against unauthorised circumvention of technical protection measures used with protected material, or against those dealing in devices that would enable such circumvention. It also makes provision for rights’ owners to take action against those who remove or tamper with electronic rights management information, or deal in protected material which no longer has this rights management information associated with it.
- Part 5 makes similar provision to Part 4, but this time in relation to dealing in pirate decoders that permit unauthorised reception of conditional access transmissions, such as encrypted satellite television. Such transmissions will include much content protected by copyright and other rights.
- Part 6 is about performers’ protection. A performer essentially has the right to decide whether or not to consent to a recording of his or her performance being made, and then has rights very similar copyright in the downstream exploitation of the sound recording or film that has been made. Although there are some additional definitions in Chapter 1, much of the other provision in Chapter 2 on economic rights, Chapter 3 on exceptions to rights, Chapter 4 on dealings in rights, Chapter 5 on remedies for infringement, Chapter 6 on licensing and Chapter 7 on moral rights is very similar to, or provided by applying the provision in, Part 1 on copyright.
- Part 7 provides design right, a right that applies to an original shape or configuration of an article, which may be designed for purely functional reasons or because it is aesthetically pleasing or both. Without any special provision, such articles, even if purely functional, could be protected by copyright law as they may be copies, albeit in 3-dimensions, of a protected 2-dimensional drawing. The provision in this Part and Part 1 on copyright therefore ensures that copyright, which has a long term of protection, does not apply to purely functional 3-dimensional articles. There are also limits to the copyright protection even for aesthetically pleasing articles that are mass-produced. Design right, which may, however, apply, is more limited in scope than copyright and has a much shorter term of protection. Thus, Chapter 1 of this Part provides some additional definitions and Chapter 2 defines the nature, ownership and duration of design right. The exceptions in Chapter 3 are appropriate for the nature of this right, but the provision in Chapters 4 and 5 on dealing with design right and remedies for infringement are similar to the provision in Part 1 relating to copyright, except that there are no criminal remedies applying to infringement of design right.
- Part 8 sets out details about the licensing authority, which can adjudicate on certain disputes about licensing of the rights provided by this draft Law. In particular, the licensing authority can settle disputes about the terms and conditions of licensing by licensing bodies, that is bodies that collectively license the rights of often a large number of rights’ owners. The licensing authority is therefore the equivalent of the Copyright Tribunal as provided in UK law. However, given that it is difficult to know whether the licensing authority is likely to have many, or even any, cases referred to it, the provision in this Part is very flexible about who or what can have this function. In the absence of any specific provision made by Order, the Minister is the licensing authority.
- Part 9 makes a number of general provisions, including the possibility of amending this Law by Regulations for various reasons. These are discussed further below.
- Schedule 1 is about the liability of and remedies against internet service providers for infringement of intellectual property rights. At the moment, the Schedule only applies to copyright, but it could be amended by Regulations possible under this Law to apply to other rights if appropriate. The detail of the limited liability for infringement for service providers of different types, that is those providing a mere conduit service, those caching material being transmitted, those hosting material for other people and those providing links to material by the use of search engines or otherwise, is modelled on provision in EU law (the e-commerce Directive) and US law (the Digital Millennium Copyright Act). The remedies that copyright owners can use against service providers are closer to the provision in US law in that there is detailed provision about a notice of alleged infringement that copyright owners can use where a service provider is hosting material alleged to be infringing, followed by takedown and possible put back provision if a counter notice is sent by the material owner. However, the Schedule also copies some provision in EU and UK law, such as on how the limited liability is defined and about injunctions that can be sought against service providers. In addition, some of the detailed procedure about notices of alleged infringement has been developed uniquely for Jersey in the light of comments from those consulted about earlier drafts of this part of the Law.
- Schedule 2 contains consequential amendments and repeals of other enactments.
Comparison between this Law and UK law
This draft Law is largely modelled on provision on copyright and related rights in the UK Copyright, Designs and Patents Act 1988, as amended. The draft Law includes measures equivalent to all of the provision in the 1988 Act that are believed to be necessary to comply with the international treaties and conventions in the intellectual property area as identified above, and the copyright and related rights provision in the TRIPS Agreement. Many other details of this Law also have their equivalent in the 1988 Act as amended, especially regarding the scope of rights (except a lending right – see below), the term of protection, and rules on ownership, dealing, licensing and remedies for infringement of rights.
It does, though, vary from the 1988 Act in some respects, for example by not copying some of the detailed amendments made to the 1988 Act to comply with provisions in EU law that are not thought to be appropriate to put in place in Jersey at this stage. For example, the draft Law does not provide an exclusive lending right for copyright owners, because in the UK this is linked to provision on public lending right, a right which does not exist in Jersey at the moment. A lending right is not required by the above treaties and conventions. Also, the draft Law has not copied all the amendments made in the UK to exceptions to rights in order to comply with the more rigid provision in EU Directives than is necessary to comply with treaties and conventions, especially where this would result in a narrowing of an existing exception in the current law in Jersey. As indicated above, the provision on remedies against hosting service providers for infringement of copyright is more developed in the detail than UK law, which is for this in any case found in the more general provision implementing the EU e-commerce Directive on service providers’ liability for material that is illegal for any reason, and not just because it infringes an intellectual property right.
The draft Law also makes provision in various places that would permit the Law to be amended by Regulations. This provides considerable flexibility to keep the Law up-to-date in the future, including by making amendments to keep the Law compliant with international conventions and treaties, and to make equivalent amendments to those made in the UK to implement EU Directives even when Jersey is not obliged to do this. Another area for which amendments are possible by Regulations is exceptions to rights. This is an area where there is active consideration of amendments in the UK at the moment, such as to deliver the recommendations in the Gowers Review of Intellectual Property, which reported in 2006, on extending educational exceptions to copyright to facilitate distance-learning. The draft Law would also permit amendments to be made by Regulations to make certain types of copyright licensing easier. Provision on this in the UK was to be included in the Digital Economy Act 2010, but it was dropped when time to properly debate the issues was curtailed as a result of the UK general election. (The draft Law does not copy the very recent provision in the Digital Economy Act 2010 on illegal file sharing because provision on this would not be appropriate in the absence of consultation in Jersey and, moreover, the new UK law in this area is not provided by amending copyright law in any case.)
Process leading to proposals in this Law
Drafting of a new copyright law started over 10 years ago, and a draft Law was presented to the States Assembly in 2002. However, it was withdrawn due to concerns about the possible administrative and financial burden of creating a permanent tribunal equivalent to the UK Copyright Tribunal. Before that matter could be resolved satisfactorily, the UK made extensive amendments to its law to implement the 2001 EU Directive on copyright and related rights in the information society. It was felt that a number of these amendments should be reflected in Jersey’s Law and so additional redrafting was undertaken. The Intellectual Property Advisory Committee was also established to look at some specific issues that were being considered for inclusion in this Law, or for updating other areas of intellectual property law. The Committee recommended that Jersey should adopt notice and takedown provisions based on the US Digital Millennium Copyright Act.
A further public consultation on the redrafted law and proposals from the Intellectual Property Advisory Committee was therefore launched on 14th December 2007, and closed on 7th March 2008. The consultation asked for comments on:
· Draft Copyright (Jersey) Law 200-
· Draft Design Right (Jersey) Law 200-
· Draft Performers’ Protection (Jersey) Law 200-
· Explanatory papers on “Notice and Takedown” and “WHOIS Look Up” provisions.
The explanatory papers were provided by the Intellectual Property Advisory Committee. (The proposals on WHOIS Look Up are not relevant to this draft Law.)
Fifteen responses were received to that consultation from a range of different stakeholders. There were no negative responses to the idea of updating intellectual property laws in the areas proposed. There were concerns about some of the details though. This included comments about the provision on exceptions to rights, including to ensure that appropriate amendments can be made in the future, such as to cover distance learning, the burden of a lending right on libraries, the difficulties of proving the offences applying to dealing in devices that circumvent technical protection measures, and modifications to the notice and takedown provisions.
As well as combining all the provision as indicated above into a single Law, other amendments have been made to the consultation draft to take the consultation responses into account, and to correct and improve the draft in other ways that have subsequently been identified. As the provision on notice and takedown led to significant changes from what the Intellectual Property Advisory Committee suggested, further more limited consultations, with internet service providers and others in Jersey in particular, have been undertaken on the drafting of this provision. The current draft Law is therefore believed to provide appropriate and balanced provision on the issues that have been raised in the various consultations.
Statement of financial and manpower implications
There are no financial or manpower implications arising from the adoption of the draft Law by the States. The Law could give rise to an increase in enquiries about copyright and how this affects particular interests, but this increased awareness about copyright would not necessarily be because of changes that the Law would make rather than an indirect effect of the publicity that the Law will give to copyright, a right that already exists in Jersey. It is currently expected that the costs and required manpower for dealing with such enquiries will be met from existing resources. There are a number of situations in which the Minister could be involved in resolving issues referred to him or her and in his or her capacity as the licensing authority, but it is anticipated that in practice this will happen infrequently, or not at all, and so the financial costs and required manpower will also be met from existing resources. Should it become appropriate or necessary to appoint another person or establish a body as the licensing authority, the draft Law enables any costs of doing so to be met, if appropriate, by charges paid by those referring cases to the authority for adjudication.
Director Strategic Development
29 September 2010
gov.je