The following three copyright exceptions, which are provided for in the Copyright Designs and Patents Act 1988 ("CDPA"), came into force in the UK yesterday, 1 October 2014:

  • Personal Copies for Private Use - new s.28B
  • Quotation - amended s.30 CDPA
  • Parody - new s.30A CDPA

What do the exceptions mean for me?

These exceptions are largely designed to legalise the status quo, and to permit certain limited uses to the extent that they constitute "fair dealing". As such, we expect that their practical impact will be quite limited, notwithstanding the large amount of media comment that they have generated.

Personal Copies for Private Use

This exception, which does not apply to computer programs, will permit the making of a personal copy of an individual’s own copy of a work, for that individual’s private use for non-commercial purposes.

An “individual’s own copy” means a copy that he or she has lawfully purchased on a permanent basis. For example this would cover content stored on a CD or permanent download, but specifically does not cover “a copy which has been... streamed”. The reference to streaming in the draft legislation is confusing: first it is not clear what a "streamed copy" means as generally when streaming content at no point is an entire copy of a work made, and second copies made in relation to streamed content would often be covered by the temporary copies exception in any event.

“Private use” includes making back up copies, format-shifting (i.e. copying CDs to digital), storage (i.e. cloud storage of lawfully purchased downloads, to the extent that these are stored in an area only accessible by the individual).

Copyright is infringed if the individual transfers their personal copy to another person, e.g. sharing of digital content is not caught by the exception.

Note that it is not possible to contract out of this exception.

The personal copies exception is intended to legalise the status quo. Users have been converting analogue content to digital and backing up digital content for many years now, most of them unaware that these seemingly innocent activities infringe copyright. From this perspective the exception is not controversial, however it will be interesting to see what creative applications for the exception are argued by content users. For instance if a user lawfully acquires a physical copyright protected work, is that user now permitted to reproduce that work using a scanner and 3D printer for his or her personal use at home?

Quotation

This exception permits the use of a quotation from a work (whether for criticism or review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

This means that short extracts of works which are already online (or have been published offline) may be used without infringing copyright. There is no limit on how long the quotation may be, except that it must be “no more than is required”. Similarly there is no limit on the purpose of the use, except that it must be fair. This leaves the exception flexible yet arguably also restrictive, meaning that users will need to feel their way by trial and error to find its boundaries. What is clear is that use of quotations for commercial purposes is likely not to be deemed to be "fair" meaning that this exception does not create a new playing field for commercial aggregators.

The requirement that sufficient acknowledgement is limited to where it is not impossible “for reasons of practicality or otherwise” hints that in the online world it can be difficult to acknowledge authors who do not tag themselves as the author using conventional code which automated spiders can pick up on. Again, this gives flexibility but the boundaries remain unclear.

Again, it is not possible to contract out of this exception.

Parody

Finally the parody exception permits fair dealing with a work for thepurposes of caricatureparody or pastiche.

As to the potential interpretation of the parody exception by the UK courts, the CJEU has recently ruled (in case C-201/13 Deckmyn) that the essential characteristics of parody are: (1) to evoke an existing work while being noticeably different from it, and (2) to constitute an expression of humour and mockery. This could be read as requiring that a parody must be intended to be funny and in fact be funny in practice, which would allow "good" (i.e. funny) parodies but not "bad"(unfunny) ones. Furthermore, where the parody conveys a "discriminatory message" (which is for a national court to determine), rightsholders in principle have a legitimate interest in ensuring that the work protected by copyright is not associated with such a message, although it has not been made clear how this would be implemented in practice.

Therefore, it remains to be seen when this exception is tested before the courts whether it will be relevant whether a work is funny, and if so who will judge whether a work is funny or not.

Again, it is not possible to contract out of this exception.

Draft statutory instruments and supporting explanatory memorandum are available here:

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014

The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014