Legislation and enforcement

Relevant legislation

What is the relevant legislation?

The main copyright legislation in the UK is the Copyright, Designs and Patents Act 1988 (CDPA), which has been amended by other legislation on numerous occasions since it came into force on 1 August 1989.

The United Kingdom is also currently a member of the European Union and, therefore, UK law should be in accordance with the various European Union directives that impact on copyright, such as the Copyright Directive 2001/29/EC (sometimes called the Information Society Directive) and the Software Directive 2009/24/EC.

Enforcement authorities

Who enforces it?

There are a number of public bodies which have powers of enforcement of relevant criminal offences in the UK, including local weights and measures authorities (Trading Standards), the Office of Fair Trading and the police. Her Majesty’s Revenue and Customs also has powers to seize pirated goods entering the UK.

However, in many cases, copyright will need to be enforced by the copyright owner, an exclusive licensee or, in some circumstances, a non-exclusive licensee or representative body, either through a private criminal prosecution or, more usually, civil proceedings.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The reproduction right is defined as copying a work ‘in any material form’ and is said to include ‘storing the work in any electronic means’ (section 17(2), CDPA).

Making copyright works available over the internet will infringe UK law which provides for a communication right for all categories of copyright-protected work which includes the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them (sometimes referred to as the on-demand right (section 20, CDPA)).

The Digital Economy Act 2010 also provides for a number of measures to reduce copyright infringement caused by file sharing on the internet.

The role of intermediaries and internet service providers (ISPs), which enable or facilitate the digital exploitation of works, is addressed in the Copyright Directive 2001/29/EC and Electronic Commerce Directive 2000/31/EC. The Copyright Directive provides that rights holders should be able to apply for an injunction against intermediaries whose services are used by third parties to infringe copyright. The Electronic Commerce Directive states that an ISP or other service provider that stores information provided by a recipient of the service will not be liable for the information stored unless they have knowledge of infringing material and providing that, upon obtaining such knowledge, they act expeditiously to remove the information.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

Yes, the UK courts have generally taken the view that foreign-owned or foreign-operated websites that are at least partially targeted to the UK can infringe UK copyright laws, either directly or as a joint tortfeasor. Enforcement of UK laws against foreign-owned and foreign-operated websites can be challenging but the UK courts do have powers to grant website blocking orders that require internet service providers to take steps to block access to the website through its internet access services.

To obtain a website blocking order, the rights holder will need to show that the users or the operators of the websites will infringe. The High Court will consider various factors before relief will be granted such as whether an injunction would:

  • be necessary;
  • be effective;
  • be dissuasive;
  • be not unnecessarily complicated or costly;
  • avoid barriers to legitimate trade;
  • be fair and equitable and strike a ‘fair balance’ between the applicable fundamental rights; and
  • be proportionate.
Agency

Is there a centralised copyright agency? What does this agency do?

There is no centralised copyright agency but there are a large number of licensing bodies that collect royalties or license a range of rights for various industries and categories of rights holders (these include the Phonographic Performance Limited (PPL), the Performing Rights Society (PRS), the Newspaper Licensing Agency and the Copyright Licensing Agency).

A digital copyright exchange called the Copyright Hub has also been set up, which enables copyright owners to offer their rights for licence. In addition, the Copyright Tribunal has powers to resolve certain commercial licensing disputes.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

The categories of work protected by copyright in the UK are:

  • original literary, dramatic, musical and artistic works;
  • sound recordings, films and broadcasts; and
  • typographical arrangements of published editions.

‘Literary work’ includes:

  • a table or compilation other than a database;
  • a computer program;
  • preparatory design material for a computer program; and
  • a database.

‘Dramatic work’ includes a work of dance or mime.

Rights covered

What types of rights are covered by copyright?

The owner of copyright in a work has the exclusive right to:

  • copy the work;
  • issue copies of the work to the public;
  • rent or lend the work to the public;
  • perform, show or play the work in public;
  • communicate the work to the public (which includes an ‘on-demand’ right to make the work available to the public at a time and place chosen by them); and
  • make an adaptation of the work.
Excluded works

What may not be protected by copyright?

To be protected by copyright, a work must traditionally fall within one of the categories of work set out in question 6 (following the 2019 Levola Hengelo Court of Justice of the European Union (CJEU) case this categorisation system may be incompatible with EU law - see ‘Update and trends’). Further copyright law only protects the expression of an idea and not the idea itself, Therefore, although the underlying computer software of video games and other forms of interactive entertainment will be protected by copyright as literary works, it is not clear that the video games themselves, as experienced by the player of the game, are covered by the current categories of work that are protected under UK law (although individual elements of the video game, such as graphics and music, will be protected).

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

There is no general fair use or fair dealing defence to copyright infringement under UK law. However, three specific defences provide that copyright is not infringed by fair dealing with a work for the purposes of:

  • non-commercial research or private study (section 29, CDPA);
  • criticism or review, quotation or reporting current events (section 30, CDPA); and
  • caricature, parody or pastiche (section 30A, CDPA).

In addition, there are defences for:

  • certain temporary copies that are an essential part of a technological process (section 28A, CDPA);
  • text and data analysis for non-commercial research (section 29A, CDPA); and
  • incidental inclusion (section 31, CDPA).
Architectural works

Are architectural works protected by copyright? How?

A work of architecture, being a building or a model for a building, is protected as an artistic work (section 4(1)(b), CDPA). However, the protection afforded to works of architecture is significantly reduced because it is not infringed by making a graphic work representing it, or making a photograph or film of it, or making a broadcast of a visual image of it (section 62, CDPA).

Performance rights

Are performance rights covered by copyright? How?

Performers of dramatic, musical and certain other performances have a number of specific performers’ rights. This system of performers’ rights is highly complicated in part due to the manner in which the regime has subsequently been amended to take account of the UK’s international treaty obligations.

Performers’ economic rights (as opposed to moral rights, discussed below) can be classified as non-property rights (the original rights granted under the CDPA) and property rights (additional rights that have been subsequently granted).

A performer’s non-property economic rights are infringed:

  • if without their consent their performance is recorded or broadcast live, a recording of their performance is copied, or copies of a recording of their performance are issued to the public (section 182, CDPA);
  • through the use of a recording made without consent (section 183, CDPA); and
  • by the importing, possessing or dealing in an illicit recording (section 184, CDPA).

These rights are termed ‘non-property’ rights because they cannot be transferred or assigned.

A performer’s property rights consist of a reproduction right, distribution right, rental and lending right, and a making available right (sections 182A-182, CDPA).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

Neighbouring rights in the UK include:

  • a publication right for those who publish previously unpublished works;
  • artists’ resale right; and
  • various anti-circumvention rights, which enable rights holders to take action against acts or devices that are designed to get around anti-piracy devices and technological measures.

Although circuit diagrams are not explicitly identified as a protected class of work in the CDPA, the UK courts have held circuit diagrams to be both artistic works and literary works (Anacon v Environmental Research Technology).

Moral rights

Are moral rights recognised?

Moral rights of the author are recognised under the CDPA. The main rights are the right to be identified as the author or director; the right to object to derogatory treatment of a work; and the right not to have a work falsely attributed (sections 77, 80 and 84, CDPA).

Performers also have moral rights, namely the right to be identified and to object to derogatory treatment of the performance.

In addition, a person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film, has the right not to have: copies of the work issued to the public; the work exhibited or shown to the public; or the work communicated to the public.

Copyright formalities

Notice

Is there a requirement of copyright notice?

There is no requirement to include a copyright notice. Copyright protection arises automatically in the UK on creation of the work and a copyright notice is not required to ensure protection. However, it is often sensible to include such a notice to alert third parties to the existence of the right. It is particularly recommended to use such a notice in relation to content held online, where copyright infringement is commonplace. An example of such a notice would be to include the copyright logo (©), the creator’s name and the year the work was made at the bottom of the relevant webpage, for example: © Osborne Clarke LLP 2019.

What are the consequences for failure to use a copyright notice?

Not applicable as there is no requirement of a copyright notice. See question 14.

Deposit

Is there a requirement of copyright deposit?

There is no requirement of copyright deposit.

What are the consequences for failure to make a copyright deposit?

Not applicable as there is no requirement of copyright deposit.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

There is no formal system for the registration of copyright, as copyright arises automatically in the UK on creation of the work. The British Copyright Council recommends self-recording of copyright in certain situations where an owner may require proof of existence of a work at a particular date, for example, to use against potential infringers in the future. An example of self-recordal of copyright is for the creator to send a copy of the work by post to themselves and keep the sealed, dated envelope in a safe place, unopened. Alternatively, creators may wish to file a copy of their work with their professional adviser (such as a lawyer) or their industry body. There are also a number of online private companies that offer copyright registration services. When using these sites, users should be aware that these services are not connected to the UK Intellectual Property Office and the utility of such services is not established.

Is copyright registration mandatory?

There is no formal system for the registration of copyright. See question 18.

What are the fees to apply for a copyright registration?

Not applicable as there is no formal system of copyright registration. See question 18.

What are the consequences for failure to register a copyrighted work?

Not applicable as there is no formal system of copyright registration. See question 18.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

The creator of the work is the first owner, unless the work is created by an employee in the course of their employment. In that case, their employer is the first owner of copyright in the work. A work may be jointly owned where it is produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

A film is treated as a work of joint authorship by the producer and principal director (unless they are the same person) and a broadcast is treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast.

Employee and contractor work

May an employer own a copyrighted work made by an employee?

Yes, if the copyright work is created during the course of the employee’s employment then the employer will be the first owner, subject to any agreement to the contrary.

May a hiring party own a copyrighted work made by an independent contractor?

Yes, provided that there is an agreement that assigns ownership of copyright to the hiring party. Assignment of ownership of copyright to the hiring party does not occur automatically by virtue of the hiring relationship.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes, a copyright work can be co-owned by individuals and entities. Co-ownership can, however, lead to complicated issues in relation to further dealings in the copyright and enforcement against infringements.

Transfer of rights

May rights be transferred?

Yes, copyright may be transferred, or ‘assigned’. Assignments must be in writing.

Licensing

May rights be licensed?

Yes, copyright may be licensed.

Are there compulsory licences? What are they?

Compulsory licences do not generally exist under English law. There were specific compulsory licence provisions that applied in circumstances where copyright had been revived. However, these provisions were repealed in April 2017 as part of the consultation process relating to the repeal of section 52 CDPA since the UK government did not believe that these provisions were compatible with EU laws which provide that certain acts are exclusive to the author of the work.

Are licences administered by performing rights societies? How?

Yes, licences are administered by performing rights societies in the UK, for example, PRS for music (PRS) and PPL. PRS manages the rights of songwriters, composers and publishers while PPL manages the rights of the record producers and the performers. There is also the British Equity Collecting Society, which is a collective management organisation for audiovisual performers. This organisation was established by the performers’ union, Equity, and enforces its members’ performance rights in the UK and EU.

Termination

Is there any provision for the termination of transfers of rights?

As a general rule, an assignment of ownership of copyright takes effect and is not terminated by operation of copyright law. It may, however, be able to be terminated by one of the parties depending on what terms they have agreed in the assignment.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

Since the ownership of the copyright in a work is not registrable in itself, it is not possible to record the transfer of the copyright either and so no such agency exists.

Copyright is an asset over which is it possible to take security. For example, copyright can be the subject of a fixed or floating charge or a legal mortgage.

Duration of copyright

Protection start date

When does copyright protection begin?

Copyright protection usually begins automatically when the work is created or published. For example, copyright protection in a photograph starts when the photograph is taken and copyright in a film begins when the film is made.

Duration

How long does copyright protection last?

The length of copyright protection depends on the category of the work. In most cases, copyright protection lasts for a period of 70 years from the end of the calendar year in which the author of the work dies (or the last author in cases of joint authorship).

Please see the table below for the usual length of copyright in particular categories for works that fall under the CDPA. Earlier acts, such as the Copyright Act 1956 and Copyright Act 1911, can still apply to works created or published while the earlier acts were in force.

Length of copyright protection under the Copyright, Designs and Patents Act 1988

Category of work

Usual length of copyright

Literary, dramatic, musical and artistic works

70 years from the end of the calendar year in which the author dies

Sound recordings

70 years from the end of the calendar year in which the recording is first published

Films

70 years from the end of the calendar year of the death of the director, author of the screenplay, author of the dialogue and the composer of the soundtrack to the film

Broadcasts

50 years from the end of the calendar year in which the work was made

Typographical arrangement of published editions

25 years from the end of the calendar year in which the edition was first published

Does copyright duration depend on when a particular work was created or published?

For most copyright works, copyright duration will be calculated from when the work was created or published (see question 32). There are a few circumstances where works created or published when previous versions of the law applied now have a different length of copyright duration.

Renewal

Do terms of copyright have to be renewed? How?

Terms of copyright do not have to be renewed. In the same way as copyright protection arises automatically, it is also extinguished automatically once the relevant time period lapses (see question 33).

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

The term of copyright protection was extended from life of author plus 50 years to life of author plus 70 years in 1995. The UK also extended copyright protection for sound recordings and musicians’ rights in sound recordings from 50 to 70 years in 2013. The change in the law was implemented to allow songwriters and other performers such as session musicians to continue to profit from their work throughout their life. The legislation was coined ‘Cliff’s Law’ as Cliff Richard was a well-known supporter of the changes.

It should also be noted that the UK government has repealed section 52 of the CDPA, which restricted copyright protection for industrial designs or works to 25 years to ensure consistency with the law on registered designs.

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

The categories of copyright infringement for some or all categories of copyrighted work are:

  • copying of the work (section 16, CDPA);
  • issuing copies of the work to the public (section 17, CDPA);
  • renting or lending the work to the public (section 18, CDPA);
  • the performance, playing or showing of the work in public (section 19, CDPA);
  • the communicating to the public of the work, which includes the broadcasting of the work and the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them - known as the ‘on-demand’ right (section 20, CDPA); and
  • making of an adaptation of the work to the public (section 21, CDPA).
Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Secondary liability does exist and is incurred when a person, without the copyright owner’s permission:

  • imports into the UK, other than for his or her private and domestic use, an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 22, CDPA);
  • possesses in the course of business an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(a), CDPA);
  • sells or lets for hire, or offers or exposes for sale or hire an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(b), CDPA);
  • in the course of a business exhibits or distributes an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(c), CDPA);
  • distributes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work (section 23(d), CDPA);
  • makes, imports into the UK, possesses in the course of business or sells or lets for hire, or offers or exposes for sale or hire an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies (section 24(1), CDPA);
  • transmits the work by means of a telecommunications system (other than by communication to the public), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the UK or elsewhere (section 24(2), CDPA);
  • gives permission for a place of public entertainment to be used for a performance which infringes copyright unless when he or she gave permission he or she believed on reasonable grounds that the performance would not infringe copyright (section 25 CDPA); or
  • supplies apparatus that is used to infringe copyright by a public performance of the work or by the playing or showing of the work in public (section 26, CDPA).
Available remedies

What remedies are available against a copyright infringer?

Remedies would include damages, injunctions, account of profits, delivery up and forfeiture. Interlocutory relief is also available and can include interim injunctions, search orders and freezing orders.

The courts can order additional damages beyond the loss caused to the copyright owner, in particular if the infringement is flagrant or the defendant has accrued a significant benefit by reason of the infringement. Additional damages may also be awarded under article 13(1) of the Directive on the Enforcement of Intellectual Property Rights (2004/48/EC) (the Enforcement Directive) to award the rights holder damages appropriate to the actual prejudice suffered by him or her as a result of the infringement. The UK court has held that damages may be awarded under either the additional damages provisions in the CDPA or under the Enforcement Directive and each might be appropriate in different circumstances (Absolute Lofts v Artisan Home Improvements; Phonographic Performance Limited v Raymond Hagan t/a Lower Ground Bar and The Brent Tavern and others).

Limitation period

Is there a time limit for seeking remedies?

In England and Wales, the limitation period is six years.

Monetary damages

Are monetary damages available for copyright infringement?

Yes, damages or an account of profits or a royalty rate if the infringer had taken a licence to use the work from the copyright owner.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes, the defendant is usually liable to a sizeable percentage of the claimant’s costs, if the claimant is successful.

Criminal enforcement

Are there criminal copyright provisions? What are they?

There is criminal liability for certain acts in relation to an infringing copy of a copyright work such as: making it for sale or hire; importing it into the UK other than for private use; distributing it in the course of business; making an article specifically designed for making copies; and causing the copyright work to be performed, played or shown in public.

For criminal liability under the Digital Economy Act 2017, it will be necessary to show that the defendant intended to make a gain for themselves or another, or knew or had reason to believe that their actions would cause loss to the copyright owner or expose the copyright owner to a risk of loss. In addition, it must be shown that the defendant had the relevant knowledge, or reasonable belief, that the copy is an infringing copy. A person found guilty of such an offence can face an unlimited fine and up to 10 years in prison.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

There are specific defences for certain temporary copies that are an essential part of a technological process and the sole purpose of which is to enable a transmission of the work in a network between third parties by an intermediary or a lawful use of the work. The Court of Justice of the European Union has confirmed that this includes on-screen and cached copies that are produced while browsing the internet.

The Digital Economy Act 2010 also provides for a number of measures to reduce copyright infringement caused by file-sharing on the internet. For example, copyright owners are able to identify infringers’ IP addresses and compile reports. They then send a copyright infringement report to the relevant ISP, which reviews the evidence and, if it meets a required standard, can send letters to the infringer. A further list is then created by the ISP of those who do not comply with the letters, which if disclosed to the copyright owner, can allow infringement proceedings to be brought.

Prevention measures

How may copyright infringement be prevented?

Copyright infringement can be prevented by using a copyright notice since this can alert a potential infringer to the rights holder’s rights and might dissuade them from infringing the rights in the work. It might also be possible to use technical measures to prevent infringement or to ‘seed’ or introduce deliberate errors in a work in order to make it easier to enforce any copyright infringement.

It is possible to alert Her Majesty’s Revenue and Customs as to copyright infringing material to be detained at border control.

Infringement may be reduced by inserting a copyright notice on the work indicating the date and the owner of a particular work, which will alert third parties to the existence of copyright. Enforcing copyright may deter third parties for attempting to carry out infringing acts.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

The United Kingdom is party to various international treaties; the following are the most important in relation to copyright:

  • the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention);
  • the Universal Copyright Convention of 1952 (UCC);
  • the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961 (the Rome Convention);
  • the Convention for the Protection of Producers of Phonograms against the Unauthorized Duplication of Their Phonograms 1971 (the Phonograms Convention);
  • the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (the TRIPS Agreement);
  • the World Intellectual Property Organization Copyright Treaty; and
  • the World Intellectual Property Organization Performances and Phonograms Treaty.

The Berne Convention and the UCC are the two major copyright conventions. The Berne and Rome Conventions were supplemented and updated by the two World Intellectual Property Organization treaties. There are a number of other conventions of lesser importance that have not been incorporated in the above list.

What obligations are imposed by your country’s membership of international copyright conventions?

Generally, international treaties do not have direct effect in England and Wales, thus domestic legislation must be enacted to give effect to treaty obligations. The Berne Convention ensures that nationals of one contracting state enjoy protection in another contracting state. Each treaty prescribes certain minimum levels of protection that the UK must provide; for example, the minimum term of protection under the Berne Convention is 50 years.