The United Kingdom will soon be required to implement an EC Directive which will result in new legislation affecting UK copyright law.

This new Directive will impact on owners of copyright including broadcasters, proprietors of web-sites, artists and musicians, who need to be aware of the ways in which they can protect their works. There are potential new rights and remedies available to them, as set out below. Copyright protects the expression of an idea and can only exist in certain categories of work, such as original literary, dramatic, musical or artistic works, sound recordings, films, broadcast or cable programmes and typographical arrangements. There is no need to register for copyright, as it is an automatic right. Right holders may control use by others of their work in various ways.

The Directive on copyright and related rights in the information society (the Copyright Directive) was adopted on 9th April, 2001 by the EU Council and has been published in the Official Journal of the European Communities. The aim of the legislation is to harmonise the legal framework on copyright through increased certainty, while providing for a high level of protection of intellectual property.

The Directive seeks to promote growth and increased competitiveness in European industry, both in the area of content provision and information technology.

The Directive requires member states to implement legislation adapting their current laws on copyright and related rights to respond adequately to economic realities such as new forms of exploitation of intellectual property rights, for example, new technology including digital video disks (DVD) and online distribution of music over the internet. Implementing the Directive is likely to involve an updating of certain copyright offences to deal with the issue of online piracy.

Key Provisions

In many ways, the Directive mirrors the current UK legal position under the Copyright, Design and Patents Act 1988 (CDPA), as amended by the Broadcasting Acts and further secondary legislation. There are, however, a number of provisions which will necessitate a change in the UK legal position.

The Directive contains a mandatory provision giving right holders exclusive rights to authorise or prohibit direct or indirect, temporary or permanent reproduction of their works by any means and in any form. This provision applies to authors, performers, phonogram producers, film producers and broadcasting organisations.

The Directive also requires member states to provide authors with the exclusive right to authorise or prohibit any communication of their works to the public by wire or wireless means in such a way that members of the public may access them on demand. This will assist right holders in protecting digital broadcasting and "on demand" services.

There is a mandatory exception to the general restriction on reproduction outlined above, for

  1. reproduction of works which are transient or incidental and form an integral and essential part of a technological process whose sole purpose is to enable a transmission in a network between third parties by an intermediary; or
  2. lawful use of a work which has no independent economic significance.

Member states are only obliged to implement this exception. The remaining exemptions contained in Article 5 of the Directive are optional. The list is exhaustive, and it includes exemptions for private copying, use by social institutions, teaching, use for press comment and where such use assists those with a disability.

The Directive also introduces a concept of fair compensation for right holders. In deciding what is to be fair compensation, member states must evaluate the possible harm to the right holders resulting from the act in question.

The Directive also contains provisions outlawing the circumventing of security measures designed to protect copyright works from being copied. These are designed to allow for more comprehensive protection for technological measures used to safeguard rights or identify material (eg digital watermarks).

Critique

The principle behind the Directive, namely the harmonisation of copyright law on a European level has been welcomed. However, given the diversity of member state responses which will necessarily result from the free rein given to member states to pick and choose which exemptions they use, there still may be considerable disharmony with copyright laws of member states.

One of the most hotly debated provisions of the Directive is the private-use exemption. The European Commission agreed to limit the scope of this exemption, to the extent that an exemption may be put into national legislation allowing a natural person to reproduce works "for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation". This concession does increase the protection of right holders, however member states will need to interpret the words "directly or indirectly commercial" and there is likely to be some disparity in both determining whether compensation is applicable and also the form of such compensation among member states.

The Directive takes into account the fact that in the digital environment, the services of intermediaries may increasingly be used by third parties for infringing activities. The Directive assumes that intermediaries are best placed to bring these infringing activities to an end. Member states are urged to allow right holders the possibility of applying for an injunction against any intermediary that carries a third party’s infringement of a protected work or other subject matter in a network. This has been criticised by advocates of an open network environment. It is argued that the new law could require surveillance of communications to ensure enforcement, and also there is a fear that internet service providers would deny access to persons who cannot provide ISPs with financial guarantees or insurance in relation to works being transmitted.

There is a concern that the speed of innovation in the information society may leave the Copyright Directive looking out of date. The Directive tries to address this by providing for regular reviews of the developments in the digital market, and this is to be welcomed.

The UK Government has welcomed the Copyright Directive, and has agreed in principal to various exemptions. Many of the exemptions already exist under UK law and the Government believes that the Directive will achieve its aim to increase the protection of right holders without ignoring the rights of individuals to make legitimate copies.

Draft regulations of the UK legislation are expected to be available for consultation purposes in the Spring of 2002. The deadline for implementation of the Directive by member states is 22nd December 2002.

For further information, please contact Aron Dindol

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.