Copyright and Related Rights Regulations 2003
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The Copyright and Related Rights Regulations 2003 transpose Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, often known as the EU copyright directive, into United Kingdom law. As such, its main effects are to modify the Copyright, Designs and Patents Act 1988 c. 48 ("the 1988 Act") with minor consequential modifications to other Acts and secondary legislation.
The regulations modify the concept of broadcast and broadcasting to take account of development in the internet; restrict the acts which are permitted without infringing copyright (in particular acts which could be performed commercially); and provide new measures for the protection and enforcement of copyright and performers' rights.
The European Commission was unsatisfied with the transposition of the directive, and brought proceedings against the United Kingdom in the European Court of Justice.
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[edit] Broadcasts
Regulation 4 provides a new definition of "broadcast" in section 6 of the 1988 Act as
- an electronic transmission of visual images, sounds or other information which—
- (a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
- (b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,
Internet transmissions are excepted from the definition of a broadcast unless they are transmitted simultaneously with a broadcast by other means, simultaneously with a live event or form part of a service in which programmes are transmitted at specific times determined solely by the person providing the service.
The new definition covers the old definitions of broadcast and of "cable programme" (s. 7 of the 1988 Act). However the separate definition of cable programme is kept as there is a distinction in the dates at which copyright becomes available: 1995-01-01 for cable programmes as opposed to 1956-06-01 for broadcasts under the previous definition.
[edit] Communication to the public
The previous "infringement by broadcasting or inclusion in a cable programme" (s. 20 of the 1988 Act) is replaced by a new "infringement by communication to the public" (reg. 6). This includes both broadcasting (under the new definition) and making a work available to the public by electronic transmission. A performer's rights are also infringed if his performance is made available to the public without his consent (reg; 7; new s. 182CA of the 1988 Act).
[edit] Permitted acts
Neither copyright (except in a computer program or a database) nor performer's rights are infringed by the simple act of transmitting the work between third parties over a network, even if the process of transmission involves making temporary copies (reg. 8)
Fair dealing for the purposes of research or private study (s. 29 of the 1988 Act) is only permitted if it is for a non-commercial purpose (reg. 9). A similar restriction is imposed on permitted copying by librarians (ss. 38, 39, 43 of the 1988 Act; reg. 14) or archivists of folksongs (s. 61 of the 1988 Act; reg. 16) for third parties. The observation or study of the functioning of a computer program are removed from the remit of fair dealing (reg. 9) and replaced by a statutory permission to study the functioning of the program while legally performing any of the acts of loading, displaying, running, transmitting or storing the program (reg. 15; new s. 50BA of the 1988 Act). Fair dealing for the purposes of criticism, review or news reporting is only possible in works which have been made available to the public (reg. 10).
The permitted use without a licence of copyright material for educational use (ss. 32, 35, 36 of the 1988 Act) is restricted to non-commercial purposes (regs. 11–13).
Regulation 18 removes the permission to use third parties (eg, outside DJs) to play sound recordings for the purposes of a non-commercial club or society (s. 67 of the 1988 Act).
The public showing or playing of broadcasts of music without a licence (s. 72 of the 1988 Act) is no longer permitted (these become "excluded sound recordings"), and the Secretary of State is enabled to propose a licensing scheme covering such public showing or playing, which may be compulsory (reg. 21).
[edit] Technical measures
Regulation 24 creates a new property right in respect of copyright works to which technical devices or measures have been applied. This right is held concurrently by
- any person issuing copies of the work to the public or communicating the work to the public; and
- the owner of the copyright in the work, or his exclusive licensee; and
- the owner of any intellectual property right in the technical device or measure, or his exclusive licensee.
who have the same rights against an infringement of this right as the owner of copyright has against infringement of copyright, including delivery up and seizure. The right is infringed
- with respect to protected computer programs, by a person who "manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes" any means "the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device" or who publishes information intended to enable or assist other in removing or circumventing the technical device (new s. 296 of the 1988 Act);
- with respect to other protected works, by a person who knowinly circumvents the technical measures (new s. 296ZA of the 1988 Act);
- by a person who manufactures, imports, distributes, sells or advertises any device or product which, or provides services which
- are promoted or marketed for the purpose of circumventing such measures; or
- have only limited commercial significance beyond circumventing such measures; or
- are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of such measures (new s. 296ZD of the 1988 Act).
The new section 296ZB creates the criminal offenses of
- manufacturing for sale or hire, importation, sale or distribution of devices or products which are primarily designed or adapted for the purpose of the circumvention of technological measures;
- providing, promoting, advertising or marketing a service the purpose of which is to enable or facilitate the circumvention of technical measures.
The new section 296ZC allows the use of search warrants and forfeiture with respect to these offenses.
The new section 296ZE creates a remedy via complaint to the Secretary of State if a technical device or measure prevents a person or group of people from carrying out a permitted act with relation to the work. The Secretary of State may issue a direction to the owner of the copyright to take such measures as are necessary to enable the permitted act to be carried out. The breach of such a direction is actionable as a breach of statutory duty.
[edit] Rights management information
Regulation 25 creates a new property right in respect of electronic rights management information. This right is held concurrently by
- any person issuing copies of the work to the public or communicating the work to the public; and
- the owner of the copyright in the work, or his exclusive licensee; and
who have the same rights against an infringement of this right as the owner of copyright has against infringement of copyright, including delivery up and seizure. The right is infringed
- the person who knowingly removes electronic copyright management information which is associated with a copy of a copyright work, or appears in connection with the communication to the public of a copyright work;
- the person who knowingly distributes or communicates to the public copies of a work from which electronic rights management information has been removed.
[edit] Enforcement of copyright and performer's rights
The infringement of copyright or performer's rights by making a work available to the public in the course of a business or to an extent which prejudicially affects the copyright owner becomes a criminal offense (reg. 26; new s. 107(2A) of the 1988 Act)
A copyright holder may obtain an injunction (Scots law: interdict) against an internet service provider (ISP) who has "actual knowledge" of another person using their service to infringe copyright or a performer's right. In determining whether the ISP has actual knowledge of the infringing use, the High Court (or Court of Session in Scotland) shall take into account all matters which appear to be relevant, in particular whether the ISP has received notification under regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 No. 2013 (reg. 27; new ss. 97A, 191JA of the 1988 Act).
Regulation 28 extends the right to bring action for infringement of copyright to non-exclusive licensees (it was previously limited to copyright owners and exclusive licensees) when the infringement is directly connected to a prior licenced act by the licencee and the licence expressly grants a right of action (new s. 101A of the 1998 Act). The non-exclusive licensee shall have the same rights and remedies as the copyright owner would have in any action. The right of the non-exclusive licensee to bring action is concommitant with that of the copyright owner.
[edit] Duration of protection
Regulation 29 amends section 13A of the 1988 Act to take account of the new definition of "communication to the public" so that the copyright in sound recordings expires:
- at the end of the period of fifty years from the end of the calendar year in which the recording is made, or
- if during that period the recording is published, fifty years from the end of the calendar year in which it is first published, or
- if during that period the recording is not published but is made available to the public by being played in public or communicated to the public, fifty years from the end of the calendar year in which it is first so made available,
without considering any unauthorized acts.
[edit] See also
- European Union directive
- Copyright law of the United Kingdom
- Copyright law of the European Union
- Digital Millennium Copyright Act
- Software cracking
- Peer-to-peer
[edit] References
- ^ Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-88/04), OJ no. C045 of 19 February 2005, p. 11.
- ^ Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ no. L167 of 22 June 2001, p. 10, corrected by OJ no. L006 of 10 January 2002, p. 70.
- ^ The restriction on private study "which is directly or indirectly for a commercial purpose" is found at paragraph 15(3) of Schedule 1 to the Regulations, modifying s. 178 of the 1988 Act.
- ^ Electronic Commerce (EC Directive) Regulations 2002 No. 2013.
[edit] External links
- Copyright, Designs and Patents Act 1988 c. 48 as it received Royal Assent
