New UK Legislation Part 2
Amended ‘permitted acts’: criticism, review, and news reporting
Fair dealing with copyright works for the purposes of criticism or review have long been ‘permitted acts’, provided a sufficient acknowledgement of the copyright owner accompanied any such publication. As from October 31, 2003, acts of criticism and review 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 two 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 or reviewing copyright works, yet to be made available to the public, are no longer free to reproduce such images and require a copyright licence to do so.
Fair dealing with copyright works (other than photographs) for the purpose of reporting current events has also long been a ‘permitted act’, provided that it is accompanied by a sufficient acknowledgement (but acknowledgement was not required where such reporting was by means of a sound recording, film or broadcast). From October 31, 2003, these provisions remain much the same, with one important amendment: acknowledgement must now be given even in the cases of news reporting by means of sound recording, film or broadcast and it is practically possible to do so. For example, listings magazines or websites reporting current exhibitions would be permitted to reproduce images from the events, so long as accompanied by sufficient acknowledgement.
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. From October 31, 2003, such photographs must also be taken in domestic premises in order to benefit from this exception. 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 technical devices applied to them 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 can take legal steps to prevent or achieve compensation for infringements of copyright. From October 31, 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 October 31, 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 October 31, 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 October 31, 2003, without a copyright licence to do so, would not have required such a licence to do so up to October 30, 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 December 22, 2002, to carry out any acts after that date that would have breached the new provisions, even if those acts were done after October 31, 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 December 22, 2002, contracted to reproduce such images on or after October 31, 2003, do not require a copyright licence to do so.
Similarly, ‘permitted acts’ begun before October 31, 2003, but not completed by that date, are governed by the previous law and can be completed without infringing the new provisions. 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 October 31, 2003.
© Henry Lydiate 2004