On 27 March, the Government laid 5 regulations before Parliament to amend the exceptions to copyright under the Copyright Designs and Patents Act 1988 (CDPA). The new regulations are intended to come into force on 1 June 2014, following a vote by both Houses of Parliament. The regulations are:
- The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014
- The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014
- The Copyright and Rights in Performances (Disability) Regulations 2014
- The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
- The Copyright and Rights in Performances (Public Administration) Regulations 2014
The UK Government proposed extending the range of exceptions to provide greater certainty and avoid copyright stifling genuine innovation. The Government rejected adopting a general US-style “fair use” provision, citing the legal uncertainty which may be caused as to whether it complied with its obligations under the Berne Convention and whether it would leave the UK out of step with other Member States. Interestingly, Ireland is proposing to adopt a “fair use” provision within Europe, and in Australia the Australian Law Reform Commission advocated in its recent Copyright and Digital Economy Report report adopting as the best option a flexible “fair use” provision, with a series of fairness factors and non-exhaustive list of illustrative fairness purposes.
Although a draft text of the regulations had previously been published and consulted upon by the Intellectual Property Office (IPO), the Government has made further changes to the drafts. These are discussed in its response to that consultation, published alongside the new draft legislation, and indicate that the regulations are an attempt to combine both the language used in the Copyright Directive (Directive 2001/29/EC) and that found historically in UK legislation. However, as the regulations are piecemeal amendments to the CDPA, to appreciate their impact, it will be essential to view them as part of a consolidated copy of the Act.
There will obviously be a period of time before cases on the interpretation of the revised sections are considered by the courts, meaning a period of uncertainty in some areas of the operation of the exceptions, despite the Governments commentary on the regulations in its response to the consultation. However, the IPO has produced a series of guidance booklets, aimed at individuals and SMEs in a number of key areas, aiming to explain the scope of the new exceptions (such as on research).
There remain some areas where it is not clear that the regulations are a correct implementation of the Copyright Directive, most notably in the absence of a mechanism for fair compensation in the private copying for personal use exception.
Clearly there are going to be different impacts in different industry sectors. The music and film industries will no doubt be monitoring the use of the personal copies for private use exception very closely, whereas publishers may be more concerned with the reform in relation to use of copyright works in education and libraries and research.
The most interesting is the additional exception permitting quotation, which is intended to cover all kinds of works and arguably may permit the use of titles, excepts or links.
The regulations contain provisions which make any contract term unenforceable to the extent that it purports to prevent or restrict the doing of any permitted act under the regulations. This means that rights holders will need to consider whether behaviour previously controlled under existing contracts can no longer be prevented, once the new regulations are in force. Rights holders should revisit the wording of existing contracts and their standard forms with the new exceptions in mind.
Overall, this area of the law remains complex, with it difficult to gauge the width of the exceptions, despite best efforts by all to provide clarity.
It was recognised in the Hargreaves Report that the exceptions to copyright infringement were not best suited to digital works and that the Copyright Directive permitted additional exceptions which were not found in the CDPA. Initially the Government included in the Enterprise and Regulatory Reform Bill a provision to enable secondary legislation to be made in relation to copyright exceptions. However, that provision was removed during the Bill's passage through Parliament, leaving the Government to introduce the new regulations under section 2(2) of the European Communities Act 1972.
In June 2013, the Government published the draft legislation for these changes to copyright exceptions for consultation and technical review. In addition to the draft regulations published last week, the Government also published its formal response to points raised in the consultation, including detailing where amendments had been made to clarify the drafting.
Personal Copies for Private Use
A new section 28B is added to enable individuals who own copies of copyright works (lawfully acquired on a permanent basis) to make further copies for their own private, non-commercial use. The regulation defines "private use" as including (but not limited to) the making of back-up copies and copies for format shifting and storage purposes (Section 28B(5).) The right will apply retrospectively to any copy made before the Regulations come into force, but which would fall under the scope of the exception.
This exception does NOT apply to computer programs in line with the general approach under the CDPA to treat computer programs separately, as existing sections 50A to 50C CDPA of detail permitted acts in relation to computer programs.
The ability to transfer copies is expressly limited, so any permanent transfer of copies to another person will fall outside the exception (Section 28B(6)). In addition, if the original bought copy of a work is sold, the exception does not permit the seller to retain a personal copy made for private use without the consent of the copyright owner (Section 28B(8)).
The regulation also introduces a new section 296ZEA, which provides a complaints procedure for any individual who is prevented from making a personal copy of a copyright work by technological protection measures (TPMs), such as encryption or anti-circumvention devices, and if necessary for the Secretary of State to make orders that the TPMs should be changed such that the individual can use the rights provided in section 28B.
Quotation and Parody
Section 30 CDPA, which will now be known as "Criticism, review, quotation and news reporting" is amended. There will be a new subsection 1ZA providing that copyright is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that, amongst other things, the use of the quotation is fair dealing and is no more than is required by the specific purpose for which it is used. This reflects a compromise on the part of the Government which had initially intended to replace section 30 with only an exception for quotation, but has heeded views that this would be an unnecessary narrowing of the exception overall.
There will also be a new section 30A which permits fair dealing with a copyright work for the purposes of parody, caricature and pastiche. Although the fair dealing provision is not required in the Copyright Directive, it has been included to ensure that the exception is on the same footing as criticism and review. The exception applies to both recorded and live use of parody, caricature and pastiche.
Neither of the new exceptions can be excluded or restricted by contract term (section 30(4) and section 30A(2)).
The Government has expressly rejected calls to define the term "fair dealing" in the new legislation, instead preferring to allow the courts to continue to develop the definition through case law.
Research, Education, Libraries and Archives
This regulation is the longest of the new regulations and introduces a collection of changes to update the current exceptions. It amends section 29 to permit use of all types of copyright work for the purposes of research and private study. It also introduces a new section 29A for making copies for text and data analysis for non-commercial research, though this is limited to people who already have lawful access to a copy and which to carry out electronic analysis. It also replaces the current Section 32 CDPA with a revised exception permitting illustration for instruction, which permits "fair dealing with a work for the sole purpose of illustration for instruction". This stated aim of this exception is to ensure that "all types of copyright work can be used in conjunction with modern teaching methods and technology without risk of copyright infringement". Use under this section must be non-commercial and fair. Sections 35 and 36 are also amended to reflect exceptions for use by educational establishments provided that the activities are non-commercial and sufficient acknowledgement is given.
There is a new section 40B and amendments to sections 41 to 43 to permit easier use and sharing of copyright works by libraries and archives.
The Disability regulation provides for repeal and replacement of the existing sections 31 A to 31 F (provision of copyright works to the visually impaired) with new sections 31A to F permitting copies to be made for disabled persons generally, rather than just the visually impaired. Provision is made for the making an supply of copies by authorised bodies (educational establishments or not for profit bodies) for disabled persons where copies are not commercially available.
The Public Administration regulation amends sections 47 and 48 to make it easier for public bodies to deal with copyright material. The current exceptions provide for the issuing of copies of documents which are open to public inspection to members of the public. The new exceptions permit public bodies to make those documents available on the internet so they can be accessed by the public online.