Introduction

The Copyright and Related Rights Regulations 2003, S.I. No 2498 (‘the Regulations’) came into force on 31 October 2003. They implement in the United Kingdom Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (‘the Directive’), and amend the Copyright, Designs and Patents Act 1988 (‘the Act’). The main provisions of the Regulations are as follows:

General scope

The aim of the Directive was to improve protection for rights owners in the information society, to harmonise copyright protection throughout the EU, and to enable the EU to ratify the earlier WIPO Copyright Treaties, which have already been implemented in the USA. The Regulations introduce a number of changes to UK copyright law, but the Directive did not apply to computer programs, so the provisions relating to them in the Act are largely unaffected.

Reproduction right

This is the right of a copyright owner to prevent unauthorised reproduction. Although the Act already covered this right, and included transient and incidental copying, it has been made clear that the latter also applies to copying of a recording of a performance. At the same time there is a new exception to copyright in respect of temporary acts of reproduction (i.e. copies) that are transient or incidental and an integral and essential part of a technological process, and whose sole purpose is to enable transmission by third parties, or a lawful use of a copyright work, if those acts have no independent economic significance.

Right of communication and making available to the public

There is a new right of communication to the public by electronic transmission, which includes broadcasting a work and making it available to the public in such a way that members of the public can access it from a place and at a time individually chosen by them. The right of making a work available to the public also applies to making available recordings of performances, which now requires the consent of the performers.

The related provisions of the Act relating to broadcasts and cable programmes have been amended in a number of ways. Firstly, the definition of a ‘cable programme’ has been abolished, and that of a ‘broadcast’ has been amended to refer to an electronic transmission of visual images, sounds or other information. This includes transmissions either for simultaneous reception by members of the public, or at a time determined solely by the person making the transmission. The new definition does not include internet transmissions unless they are a concurrent transmission of a live event, or of recorded moving images or sounds forming part of a programme service.

Exceptions from copyright

The Directive permitted member states to make a number of exceptions from copyright, but the UK Government has adopted a conservative approach and only changed the exceptions under the Act where necessary. The changes are broadly as follows:

1. as mentioned above, there is a new exception relating to certain transient copies;
2. the old exception for private study remains; but the old exception for research is now limited to non-commercial purposes, and an acknowledgment is required unless this is impossible;
3. the old exception for fair dealing with a work for the purpose of criticism, review and news reporting now only applies if the work has been lawfully made available to the public, and the requirement for source acknowledgment will not apply if this would be impossible;
4. the old educational exceptions (i.e. for things done for the purposes of instruction or examination) will only apply if the thing is done for non-commercial purposes and there is a sufficient acknowledgement; in addition, where a recording is communicated to the public within an educational establishment, the exception will only apply if the communication cannot be received by any person outside that establishment;
5. the exception for librarians now requires the librarian to be satisfied that the person supplied with a copy requires it for private study or non-commercial research only, and will not use it for other purposes;
6. other exceptions for folksongs, and the playing of sound recordings for the purposes of clubs etc are also tightened up
7. the old exception for ‘time-shifting’ (which applied only to recordings of broadcasts and cable programmes) will now apply only to a broadcast (as redefined) and is limited to recordings made on domestic premises, and does not apply if the recording is subsequently dealt with; the UK Government rejected the option of introducing a wider exception for private copying in return for giving rights holders ‘fair compensation’, as is the case in other EU member states;
8. a similar change has been made to the old exception for taking a photograph of a broadcast; in addition to being made for private and domestic purposes it must be made on domestic premises, and will not apply if the copy is subsequently dealt with;
9. the exception for public showing or playing a broadcast to an audience who have not paid for admission (which includes hospitals, clubs and societies) has been narrowed in the case of sound recordings included in the broadcast, where it will not apply unless the broadcast is being seen or heard in the course of the activities of a non-profit organisation.

Technical protection measures

The Directive required member states to provide adequate legal protection against the circumvention of any ‘effective technological measures’, defined as measures to control the use of a copyright work through an access control or protection process such as encryption, scrambling or other transformation of the work. It also required member states to provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.

The Act already contained a provision (s296) giving rights against a person who is concerned in the manufacture or sale of any device or means ‘specifically designed or adapted’ to circumvent any form of copy-protection, or who publishes information intended to enable or assist persons to circumvent that form of copy protection, but the Directive (following the WIPO Copyright Treaties) was in wider terms.

The Regulations now introduce a new civil remedy against a person carrying out an unauthorised act of circumvention (other than in respect of a computer program), as well as new provisions to protect against the manufacture or sale of anti-circumvention devices. In addition, it will be a criminal offence to manufacture or sell a device primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures, or to provide a service the purpose of which is to enable or to facilitate the circumvention of effective technological measures, unless the defendant can prove that he did not know, and had no reasonable ground for believing, that the device or service enabled or facilitated the circumvention of effective technological measures.

The existing and narrower provisions of section 296 will continue to apply to computer programs, but only if it can be shown that the device has circumvention as its sole intended purpose. The Government has acknowledged that this dual regime is unsatisfactory.

One major concern in the debate leading to the Directive was whether the protection of technical measures was consistent with the exceptions to copyright and related rights, in particular where institutions such as libraries and educational establishments are concerned. The Directive itself merely required member states to take appropriate measures when difficulties arose. The UK Government shared the concern, with the result that the Regulations introduce a new scheme for complaints to be made to the Secretary State, who will be empowered to give directions to the copyright owner or an exclusive licensee to make available the means of carrying out the permitted act, in the absence of a voluntary measure or agreement.

Electronic rights management information

The Directive (again following the WIPO Copyright Treaties) required member states to provide ‘adequate and effective legal remedies’ for digital rights management systems, which use technologies such as encryption and a set of embedded rules to determine the circumstances in which the content may be used, for example a time limit.

This provision of the Directive has been implemented in the Regulations by introducing new civil remedies, along similar lines to those for technological measures, against persons who remove or alter electronic rights management information, or distribute copies of works knowing that such information has been removed from them or altered without authority, provided that the person in question knows, or has reasonable grounds to know, that doing so will induce, enable, facilitate or conceal the infringement of copyright.

There is no corresponding criminal sanction, as the Government concluded that the latter would not be appropriate with a completely new area of copyright law in which practical experience has yet to be gained.

Sanctions

In addition to the new civil remedies and (in some cases) criminal sanctions mentioned above, the Regulations introduce new criminal offences for unauthorised communication of protected material to the public, either in the course of a business or otherwise if it is to such an extent as to affect prejudicially the owner of copyright. The courts will also have a new power to grant an injunction against a service provider who has actual knowledge of another person using the service to infringe copyright.

The rights of an exclusive license to bring infringement proceedings have been extended to a non-exclusive licensee, where the infringing act was directly connected to a prior licensed act of the licensee, and the licensee has a written licence expressly granting such a right of action.

© Davenport Lyons 2005. All rights reserved

This document reflects the law and practice as at August 2005. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.