We have previously commented on the Government's further consultationlaunched in March 2016 in relation to amending Section 72 of the Copyright, Designs and Patents Act 1988 (CDPA) here. The Government has now issued itsresponse to that consultation and has confirmed that it will remove the reference to ‘film’ completely from Section 72. It is hoped that this amendment will:

  • Simplify and bring greater clarity to the law;
  • Avoid the need for complex changes to the rest of the CDPA;
  • Enable rightsholders to bring enforcement action more easily; and 
  • Lead to a more level playing field for those pubs and other organisations that take out legitimate television subscription.

Background

Current Section 72

Section 72 currently provides a defence (or exception) to copyright infringement in that the showing or playing of a broadcast (e.g. a television or radio broadcast) in a publicly accessible location to which entry is free (e.g. a pub) does not infringe any copyright in: (a) the broadcast; (b) any sound recording (except so far as it is an excepted sound recording) included in it; or (c) any film included in it, and therefore does not require a commercial licence for those rights in the broadcast.

Football Association Premier League dispute

Changes to Section 72 of the CDPA have been considered necessary, however, following various rulings in the Football Association Premier League (FAPL) case which highlighted policy and legal issues in relation to the exception. In that case, following guidance from the CJEU in its 2011 ruling, the UK Court of Appeal held that the publicans were showing or playing the broadcasts in their pubs to members of the public who had not paid for admission and as such, there was no copyright infringement in any film (e.g. highlights, match replays) included in the broadcasts. Those film elements fell within the Section 72 exception and did not require a commercial licence. FAPL would therefore have to rely on other copyright elements which did not fall under the Section 72 exception, such as graphics and musical works included in the broadcast, to prevent pubs showing football matches without a commercial licence. 

Consequently, the Government decided that Section 72 should be amended to bring it more in line with EU law which affords a higher level of protection to the creative aspects of films (or "cinematographic" works) and only permits exceptions of this type for film fixations (the non-creative recording of the film). It was also unsatisfactory that some commercial premises could seek to rely on Section 72 to show subscription TV broadcasts without paying for commercial licences and this needed to be addressed under UK law.

The consultations

The Government had originally proposed in 2015 to address concerns in this area by narrowing the Section 72 defence so it no longer covered the creative/cinematographic aspects of film and could not be relied upon by commercial premises as described above. The aim was to strike a balance between the interests of copyright owners and users of copyright works. However, responses to that proposal revealed several complexities and practical drawbacks.  In particular, there would be greater legal uncertainty in relation to the licensing of works and, in practice, it would be hard to distinguish between the parts of a broadcast that only contained film fixations and the parts that contained cinematographic elements.

Accordingly, the government launched a second consultation on a different preferred option, which was to remove the reference to 'film' completely from the Section 72 exception.

Communication to the public

Some responding to the consultation had also expressed concerns with the proposal to amend Section 72(1) to refer to “communication to the public”. The Government had proposed this to clarify that the exception applies in respect of a broadcast where that broadcast is communicated to the public for free. However, some respondents thought there might be unintended consequences in this respect, such as:

  • It would be unclear whether or not the exception applies only to linear broadcasting, or also to on-demand broadcasts;
  • On-demand broadcasts were not the subject of consultation; and
  • Such a change is not required by the FAPL judgment which led to the current review of Section 72.

The Government has now confirmed that the inclusion of the phrase “communication to the public” in Section 72(1) was not intended to effect any substantive change and was only included to clarify that the "showing or playing in public" of a broadcast also constitutes an act of "communication to the public" and section 72 should be understood to apply to both, in line with the FAPL decision. The Government has therefore agreed that the clarification is not required in order to give effect to the interpretation of the Courts in theFAPL case, and the position of Section 72 in respect of Sections 19 and 20 of the CDPA will remain as interpreted by the Courts.

Next steps

The Government has stated that it intends to proceed to lay the implementing regulations (The Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 – see Annex B of the Government's response) in Parliament, to remove 'film' from Section 72. The extension of Section 72 to acts of “communication to the public” in general, will be dropped from the implementing regulations.

Comment

Rightsholders responding to the consultation claimed that the Section 72 amendment would not necessarily lead to a change in their enforcement activity, but would improve the chances of reducing infringement by pubs using unauthorised systems to show subscription broadcasts. On a practical level, rightsholders have indicated that the change could initially result in a small number of test cases, relying on the change in law as an additional ground of argument, but that the simplification and clarification of the law should ultimately reduce the number of infringement cases and therefore the demand on the judicial system.