The owner of copyright in an original 'artistic' work has the exclusive right to copy the work, and issue copies to the public.
Any person wishing to do either of these 'restricted acts' needs prior permission of the copyright owner, by way of a copyright licence. However, certain 'permitted acts' are allowed by the law to be done without such prior authorisation. In the UK, copyright law is laid down by the Copyright, Designs and Patents Act 1988. From time to time, copyright law is amended by Parliament, sometimes to strengthen copyright protection, at other times to extend the 'permitted acts', and occasionally to harmonise copyright laws throughout the European Community: as from 31 October 2003, UK copyright law has been amended for all three purposes, of which copyright owners, licensees, and other would-be users need to be made aware.
The Copyright and Related Rights Regulations 2003 implement in the UK Directive 2001/29/EC of the European Parliament, and seek to harmonise certain aspects of copyright and related rights in the information society throughout the European Community. This note briefly describes key changes to copyright law affecting 'artistic' works.
A new right: communication to the public by electronic transmission
Copyright owners are given a new exclusive right, from 31 October 2003: to communicate to the public by electronic transmission. This includes broadcasting the copyright work, or making the work available to the public by electronic transmission - so that the public can access it from a place and at a time individually chosen by them. This new right makes more transparent and certain that the copyright owner has the exclusive right to control such broadcasts or electronic transmissions, compared with the right to 'issue copies to the public' which was the subject of considerable doubt as to whether or not an electronic transmission was in fact an 'issue'. This means, for example, that there is now no doubt that the transmission of a copyright work via the internet is not permitted without the prior permission of the copyright owner, who has the exclusive right to do so.
New 'permitted act': protection for internet service providers
In order to offer internet service providers a degree of protection against their unwittingly infringing a copyright owner's exclusive right of communication to the public by electronic transmission, copyright is not infringed by the making of a temporary copy that is transient or incidental - but only if the sole purpose is to enable a transmission of the copyright work to be made via a network and there is no independent economic significance for doing so. This means, for example, that an unauthorised transmission of a copyright work via an internet service would not put that service provider in breach of copyright - so long as that service provider was not achieving economic benefit from that transmission. However, such a transmission would still be a breach - by the unauthorised initial transmitter - of the copyright owner's new exclusive right to communicate to the public by electronic transmission.
Amended 'permitted acts': research or private study for non-commercial purposes
It has long been the case that 'fair dealing' with a copyright work, for the purposes of research or private study, did not require prior authorisation of the copyright owner. These 'permitted acts' have been amended, from 31 October 2003. Fair dealing for research is only permitted for non-commercial purposes, and provided that such an act is accompanied by sufficient acknowledgement. This means that a commercial organisation, say a design consultancy, would infringe copyright if it reproduced copyright work when developing solutions to fulfil a client's brief - even if such rough, early work was only intended to be seen by the client and never merchandised to the public. In the case, say, of a charitable or not-for-profit arts organisation's reproduction of a copyright work for its own research purposes (so long as the research project was not of commercial benefit to the organisation), sufficient acknowledgement of the copyright owner would have to be made - unless this was impossible or impractical to do.
From 31 October 2003 fair dealing for private study is only permitted for non-commercial purposes; in which case, there is no requirement for an acknowledgement of the copyright owner. This means that if the 'private study' were for commercial purposes, directly or indirectly, the prior permission of the copyright owner would be required.
Amended 'permitted acts': criticism, review, and news reporting of copyright work that has already been made available to the public
Fair dealing for the purposes or criticism, review, and news reporting of current events have long been 'permitted acts', provided a sufficient acknowledgement of the copyright owner accompanied any such publication. As from 31 October 2003, those acts are permitted only if the copyright work has previously been made available to the public. This represents a significant change: if a copyright work has not yet been made available to the public, then it cannot be reproduced for these purposes without the prior consent of the copyright owner. In this context, made available to the public means: issuing copies to the public; making available via an electronic retrieval system; renting or lending copies to the public; performance, exhibition, playing or showing to the public; or communicating to the public. Authors and publishers of works criticising, reviewing or news reporting copyright works that have yet to be exposed to the public, are no longer free to reproduce such images and require a copyright licence to do so.
Amended 'permitted acts': education and instruction for non-commercial purposes
Reproducing copyright works in the course of instruction, or preparation for instruction, have long been 'permitted acts', provided the copying was done by the person giving or receiving instruction, and not by a reprographic process. As from 31 October 2003, such copying will only be permitted if also accompanied by sufficient acknowledgement of the copyright owner, and provided that instruction is for a non-commercial purpose. This means that commercial courses of instruction would require the copyright owner's prior consent for such copying.
Amended 'permitted act': photographs of broadcasts in domestic premises
Taking a photograph of the whole or part of an image forming part of a broadcast has long been a permitted act, provided the photograph was made for private and domestic use. As from 31 October 2003, such photographs must also be taken in domestic premises. This amendment clarifies any doubts there may previously have been as to whether such photographs could be taken elsewhere - say, in a pub, club or other place in which such broadcasts are publicly shown. In any event, there continues to be the restriction that, even if such domestic photographs are lawfully taken, they cannot be dealt with subsequently for commercial purposes. (Similar provisions apply to protect the rights of performers in such broadcasts).
New circumvention of protection measures
New provisions are made to protect copyright works, and especially computer programs, that have had applied to them technical devices to prevent their being unlawfully copied, downloaded, transmitted, or otherwise dealt with electronically. The interference with such technical devices, or their circumvention, is made unlawful and in some cases is a new criminal offence.
New right for non-exclusive copyright licensees
It has long been the case that only copyright owners or their exclusive licensees could take legal steps to prevent or achieve compensation for infringements of copyright. As from 31 October 2003, a non-exclusive licensee may also take such legal steps; provided that the infringing act was directly connected to an act that the non-exclusive licensee had been licensed by the copyright owner to perform, and that licence was in writing and signed by or on behalf of the copyright owner, and that such a written licence expressly granted to the non-exclusive licensee a legal right of action under this new law. This is a powerful new bargaining tool for copyright owners to use when, say, negotiating commission contracts with a client to originate new work, and the commissioner also wants to own the copyright. In such cases, commissioners often strongly argue that they need to either own the copyright or be given an exclusive copyright licence - in order to equip them with the legal power to take action against someone who 'infringes' their legitimate use of the original work in the market place - and this puts copyright owners under great pressure to transfer their copyright, or grant an exclusive copyright licence. Under this new legal provision, such copyright owners need not do so, but instead can offer to grant to the commissioner/non-exclusive licensee the right to take legal action against anyone who 'infringes' the commissioner's use of the original work in the market place. So long as such a grant is in writing, signed by or on behalf of the copyright owner.
For example, artists commissioned to originate book illustrations for publishers can now offer to grant a legal right of action to such publishers, as part of a non-exclusive licence to reproduce such illustrations - and so enable such publishers to take action against anyone who reproduced such illustrations without prior permission - instead of having to transfer copyright to such publishers or grant them an exclusive licence to reproduce and publish. This would mean that such publishers would have a great deal of commercial value added to their non-exclusive copyright licence, and that such illustrators/copyright owners would have greater bargaining power to retain their copyright.
If such non-exclusive licensees were granted by the copyright owner the written right to take legal action to protect themselves against possible plagiarists, any legal action taken by such a non-exclusive licensee would require the copyright owner to be notified with a view to their taking part in such legal proceedings if they chose to.
Because these changes came into force in the UK on 31 October 2003, transitional provisions in the Regulations deal with the existence of these new rights and their breaches in relation to works made and acts done before that date.
The new provisions apply to copyright works and databases made before or after 31 October 2003. However, no act done before that date is an infringement of any new or extended right given by the new Regulations. This means, for example, that authors and publishers of works criticising, reviewing or news reporting copyright works that have yet to be made available to the public, though no longer free to reproduce such images on or after 31 October 2003 without a copyright licence to do so, would not have required such a licence to do so up to 30 October 2003 - so long as sufficient acknowledgement of the copyright owner accompanied any such publication.
The new Regulations do not apply to any legal agreement made before 22 December 2002 to carry out any acts after that date that would have breached the new provisions, even if those acts were done after 31 October 2003. This means, for example, that authors and publishers of works criticising, reviewing or news reporting copyright works that have yet to be made available to the public who, before 22 December 2002, contracted to reproduce such images on or after 31 October 2003, do not require a copyright licence to do so.
Similarly, 'permitted acts' begun before 31 October 2003, but not completed by that date, are governed by the previous law and can be completed without infringing the new provisions. And any new criminal offences created by the new Regulations (circumventing or interfering with technical devices applied to protect copyright works) only apply to acts done on or after 31 October 2003.
Please note that this article was not published in Art Monthly, but was written exclusively for Artlaw on Artquest
Added to Artlaw: 15 December 2003
© Henry Lydiate
15 December 2003