New UK Legislation Part 1

Significant changes were made to UK copyright law on October 31, 2003, of which copyright owners, licensees, and other would-be users of copyright works need to be aware.

The Copyright and Related Rights Regulations 2003 implement the UK Directive 200I/29/EC of the European Parliament and seek to harmonise certain aspects of copyright and related rights throughout the European Community. Key changes to copyright law affecting ‘artistic’ works are dealt with in two parts: Part 1, this month, explores the new communication right, and changes to several acts permitted to be done without prior authorisation of the copyright owner; Part 2, next month, will consider further key changes. Read here the text of the regulations and further relevant information.

In the UK, copyright law is laid down by the Copyright, Designs and Patents Act 1988, and it is this act that has been changed by the new regulations. Before looking at the key changes in more detail, a brief summary of the basic copyright position would be helpful. The owner of copyright in an original ‘artistic’ work has the exclusive right to copy the work and issue copies to the public, and anyone 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. From October 31, 2003 the following changes to copyright law came into effect.

New right: communication to the public by electronic transmission
Copyright owners are given a new exclusive right: ‘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 only the copyright owner has the right to make or authorise the making of such broadcasts or electronic transmissions. The long-standing exclusive right of the copyright owner to ‘issue copies to the public’ continues, but was the subject of considerable doubt as to whether or not an electronic transmission was in fact an ‘issue’. With the introduction of this new additional communication right, 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. Copyright owners of original website designs, or copyright owners of artworks transmitted via the internet, for example, will benefit from ownership of this new additional communication right, which will enable them to prevent or take legal action against anyone transmitting or seeking to transmit such copyright designs or works without prior authorisation – subject to changes to the ‘permitted acts’ dealt with below.

New ‘permitted act’: protection for internet service providers
Internet service providers inevitably make temporary or transient copies of copyright material, in their relaying of transmissions from one user to another. In order to offer internet service providers a degree of protection against their unwitting infringement of a copyright owner’s exclusive right of ‘communication to the public by electronic transmission’, from October 31, 2003, copyright will not be infringed by the making of a temporary copy that is transient or incidental. However, this is 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 particular 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 October 31,
2003, fair dealing for research is now only permitted for non-commercial purposes 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 October 31, 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.

Both these new provisions would enable students, for example, to reproduce copyright works without prior permission, as part of their academic development – but such reproductions could not be used subsequently for commercial purposes, without permission of the copyright owner.

However, there is a related new additional change specifically aimed at education, which also needs to be taken into account by students and academic staff.

Amended ‘permitted acts’: education and instruction for non-commercial purposes
As mentioned at the end of the last paragraph, there has long been a ‘permitted act’ specifically aimed at the reproduction of copyright works in the course of instruction, or preparation for instruction, provided the copying was done by the person giving or receiving instruction, and not by a reprographic process. (It is usual practice for educational institutions to take out an annual copyright licence to permit reprography.) This provision was in addition to the research or private study ‘permitted act’ referred to above. As from October 31, 2003, such copying will only be permitted if also accompanied by sufficient acknowledgement of the copyright owner and provided that the 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.

PART 2
Next month’s column will consider remaining key changes affecting ‘artistic works’, including: fair dealing for the purposes of criticism, review or news reporting of copyright work; taking photographs of broadcasts in domestic premises; new measures to curb the circumvention of technical devices applied to protect copyright works; new rights for non-exclusive licensees of copyright works; and transitional provisions for copyright works, made and acts done before October 31, 2003.

© Henry Lydiate 2004

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.