Economic Development
Public Consultation on Intellectual Property
Background
Bringing forward the intellectual property (IP) laws covering unregistered rights for consultation was a major step forward in achieving a modern, fit for purpose copyright and related rights framework, which will open up new opportunities for future economic prosperity.
The absence of modern copyright laws is a discouragement to important new business opportunities for the Island in the fields of e-business and information and communications technology, because such businesses may prefer to operate from jurisdictions which offer better protection in IP matters.
The IP field is fast moving and it will be important for Jersey to keep in step with global developments in the future. This new draft legislation will modernise unregistered IP law in the Island to bring it into line with the law in other jurisdictions and, when IP laws relating to registered rights have been updated too, enable the Island to have all the main international IP conventions extended to it.
Summary of responses
Prior to the public consultation, a submission was received from the Intellectual Property Advisory Committee recommending that Jersey should adopt notice and takedown provisions based on the US Digital Millennium Copyright Act with some modifications and this was included in the public consultation.
Another submission was received from a barrister who specialises in IP making a number of comments on such matters as the provisions of the EU E-commerce Directive, proposals contained in the Gowers Review of IP in the UK, and suggestions of a technical nature in relation to the transitional provisions in the Jersey Law.
The public consultation, which was launched on 14th December 2007, and closed on 7th March 2008, asked for comment 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.
A total of fifteen responses were received.
1. General comments
Out of the fifteen responses, there were no negative responses to the concept of updating the IP laws.
Five of the organisations / companies welcomed the principle of updating IP laws. Another said that updating the laws is not problematic, but they, like a number of other respondents, including those who were very much in favour of updating IP laws, provided views on, or expressed concern about, some of the detail. A number of respondents were only concerned with some specific parts of the package that was consulted on and so provided no overall comments.
Regarding the principle of updating IP laws, the view was expressed by some Jersey lawyers that, with Jersey’s current legislation far behind developments in the UK and the rest of Europe, a consequence has been that Jersey (or the UK on Jersey’s behalf) has been unable to ratify a number of international conventions for the protection of IP. It was felt to be vital that international conventions recognising and simplifying enforcement of copyright are extended to or ratified by Jersey. Aside from TRIPS compliance and the Paris Convention, the Berne Convention is the most important in respect of copyright. The Universal Copyright Convention is of lesser importance. An international media entertainment company expressed the view that the Draft Copyright (Jersey) Law 200- , reflecting as it does input from the Advisory Committee, represents a significant improvement over Jersey’s existing copyright law. They suggested additional revisions intended to allow Jersey to more fully capitalise on actual experiences with more modern copyright laws in the UK, the EU and the US, so that the Island can enjoy a “best of breed” copyright law that will pave the way for a new era of economic prosperity based on legitimate e-commerce in copyrighted works.
In supporting the proposed updating of IP laws, a Jersey law firm suggested that, whilst the enactment of the Copyright Law, the Design Right Law and the Performers’ Protection Law would provide protection for certain products and individuals, further revision of Jersey’s suite of IP legislation, including trade marks and patents, should be undertaken to ensure that there is a full collection of protective legislation. Moreover, although it was considered that the proposed IP legislation is desirable in principle, and may be important in facilitating growth of businesses in Jersey by providing an up-to-date framework, it was not believed that these laws would be sufficient in isolation. Other factors will also need to play a role such as technological developments, tax structure and Jersey’s pool of qualified and skilled employees in this segment compared to that of other business jurisdictions.
Finally, interest was expressed in the Channel Islands working together on their IP laws.
2. Exceptions to rights
Of the specific comments received, a number related to the area of exceptions to copyright. A view was expressed by a broadcaster that with UK law currently being reviewed, and any changes likely to happen within the next 12 – 18 months, it might be sensible to wait and see what changes are made if it is the States’ intention to bring Jersey law in line with the rest of the UK. The UK Government is proposing to introduce amendments to some of the existing exceptions to copyright and performers’ rights and two entirely new exceptions relating to format shifting and parody, caricature and pastiche. If action is taken now, Jersey could well be out of step again in 2009. Some Jersey lawyers suggested that provision be made at least giving effect to the recommendations in the Gowers Review on format shifting and preservation, and that a mechanism be put in place to permit other amendments to exceptions by subsidiary legislation.
A number of detailed questions were asked about the scope of exceptions to copyright, and whether certain activity in the area of education, sport and culture would fall within the scope of exceptions, such as sending material to students for distance learning and performing copyright works in educational establishments and youth clubs. It was felt that the proposed update of IP laws would have a significant impact on all areas of operation. In addition, a library interest asked a number of detailed questions about copying in libraries and by librarians under exceptions. There was concern that the proposed legislation might prevent the provision of service currently being provided and/or that there might need to be a change to the procedures that are currently followed (which are based on best practice in UK public libraries). The scope of the definition of ‘prescribed library’ and rules on charging for copies made by librarians were also queried.
A media entertainment company would like the time shifting exception to specifically state that copies of broadcasts recorded off-air must not be intended for permanent retention.
Clarification of the exception permitting copying of material in public records was sought.
3. Acts restricted by copyright
Given the lack of a public lending right in Jersey, concern was expressed about the impact of a new right to control, and seek royalties for, lending.
4. Collective administration
An interest concerned about education, sport and culture asked whether UK collecting societies are the appropriate ones for offering copyright licences in Jersey. Also, they would like consultation on and notification about charging structures for licences. On the subject of resources, the question was posed as to whether the appointment of a Commissioner of Copyright, to whom disputes about collective administration could be referred, would impose a burden on the Judicial Greffe. Some Jersey lawyers assumed that existing UK and international licensing bodies will be encouraged to apply for approval of licensing schemes in Jersey.
5. Design right
There was a question from some Jersey lawyers regarding whether proceedings before the Commissioner of Copyright in the area of designs should be limited to licensing matters only as is proposed for copyright.
6. Enforcement of rights
Some Jersey lawyers pointed out the difference between copyright and design law regarding provision on groundless threats for infringement. A barrister specialising in IP suggested that such provision is not needed in either law. A library interest raised a number of concerns about liability for libraries/librarians where others copy illegally and how far libraries would have to go to ensure that illegal copying does not take place in a library.
7. Technical protection measures
A number of amendments to the provisions on circumvention of technical protection measures were suggested by a media entertainment company. It was claimed that these would close loopholes in the current drafting. There was also a proposal to extend protection against circumvention of technical protection measures where these have been used to control any activity that has not been authorised by the copyright owner, that is not just where copyright would be infringed by circumvention.
8. Relationship with other laws
A domain name registry made the point that, whilst IP rights are important, these may need to be balanced against other rights such as privacy, data protection and rights in Article 8 of the European Convention on Human Rights.
The recommendation was made that a clause be inserted into each of the proposed pieces of legislation to make clear that they do not affect the potential applicability of the Competition (Jersey) Law 2005, but also that there is no presumption of illegality arising from IP rights. While the overriding goals of Competition Law and IP Law are widely seen as consistent and comparable, the creation of exclusive rights and licensing conduct pursuant to those rights can raise difficult questions under Competition Law where those rights create market power. Competition Law therefore does have a proper role to play in preventing anti-competitive abuses of IP rights, but there is no presumption under the Law that IP gives rise to competition concerns.
A library interest pointed out the need to provide an exception as in the UK in order for web harvesting under the Legal Deposit (Jersey) Law 2007 to be possible, and more generally asked whether there is a conflict with existing Library Regulations.
9. Border measures
Views were expressed on Customs border measures and resource implications for the Customs and Immigration Service. It was suggested that advice be taken from the Law Officers whether the provisions of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing IP rights will have to be implemented in Jersey in order to introduce satisfactory border measures for the control of goods subject to IP rights. The belief is that the Council Regulation is directly applicable to Jersey and the Island is therefore obliged to implement all its provisions. Border measures, particularly the implementation of Council Regulation (EC) No 1383/2003, would impose an extra burden on resources.
10. Notice and takedown
With regard to notice and takedown provisions some Jersey lawyers suggested that, given the ongoing debate in the UK on how to deal with illegal file-sharing, it may be preferable for the Island to initially consider industry self regulation, but retain in the Draft Copyright (Jersey) Law 200- the ability to bring into effect the provisions by Regulations. An IT services company expressed the view that safe harbour provisions should be enacted to protect hosting businesses such as itself. Furthermore, the company’s initial view was that the implementation of notice and takedown could be achieved by local self regulation, given the limited number of local Internet Service Providers, and legislation may not be necessary.
A media entertainment company made a detailed submission on the notice and takedown provisions suggesting a number of amendments, which draw on the US Digital Millennium Copyright Act, but modified in various ways. The modifications included requiring service providers merely providing conduits for the transmission of infringing material to send messages to subscribers on receipt of notices alleging infringement from right holders, permitting injunctive relief against service providers based on the EU copyright Directive, and requiring independent adjudication of service providers’ policies on repeat infringers and accommodation of technical measures.
11. Other matters relating to unregistered rights
Some Jersey lawyers agreed with the omission of any provision on artists’ resale right and not adopting the 95 year term of protection for sound recordings that has recently been proposed by the EU Commission. A library interest queried when publication right would apply.
12. Registered IP rights
Although not part of the consultation, there were some comments on registered IP rights, in particular registration of trade marks. It was noted that the Jersey Financial Services Commission is currently working on the registered business name legislation. During the consultation process on that a number of contributors commented that the new legislation should dovetail with any new IP law. The new Business Name Law will have an automated disputes resolution system which may be of use to any IP process.
13. WHOIS Look Up
An IT services company believes that WHOIS lookup is desirable and compatible with data protection and privacy rights. Anther respondent said that privacy concerns should be considered though. Some Jersey lawyers commended the aims of improving data collection, integrity and searchability of the WHOIS system of the .je domain, but raised some concerns of a practical nature.
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