EU Directive 2001/29/EC on the harmonisation of certain aspects of copyright came into force in June 2001 and should have been implemented by all member states by 22nd December 2002. Only two member states met that deadline.
Earlier this month the Copyright and Related Rights Regulations, implementing the Directive, were finally laid before the UK Parliament. They will come into force almost immediately, on 31st October 2003, and make numerous detailed amendments to the Copyright Designs and Patents Act 1988.
Background
The delay has been caused by a ferocious battle between rights owners and user associations, in which the UK Patent Office received over 300 responses during the consultation process. The 1988 Act already provided similar protection to many of the obligations contained in the Directive, and many of the changes made by the Regulations are therefore technical. However there are also some very significant changes being made. We highlight some of them below.
New communication right and a new criminal offence
The right of the copyright holder to restrict the broadcasting of the work (under section 20 of the 1988 Act) has been redefined to encompass a wider range of activities. From 31st October it will be an infringement to communicate the work to the public by “electronic transmission”. This encompasses making the work available over the internet, which in some circumstances will fall within a new definition of broadcasting and in others will come under the more general right against electronic transmission defined in the Directive. Whether there are loopholes in the Regulations remains to be seen, but they are a hybrid provision and difficulties of interpretation may arise.The Regulations have also introduced a new criminal offence – knowingly infringing copyright in a work by “communicating the work to the public in the course of a business, or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright”. Rights organisations will welcome this new criminal offence as a valuable weapon against persons using websites to share or freely distribute copyright material. No doubt the degree of prejudice required will soon be defined in claims brought by rights holders now that the taboo against suing individual users has been abandoned.
“Fair dealing” restricted
The fair dealing exception for the purpose of “research or private study” has been amended to make it clear that only “research for a non commercial purpose” will now qualify. Organisations such as the Copyright Licensing Association and Newspaper Licensing Agency are already contacting commercial organisations and businesses which they believe may have relied upon this exception to date, and which may now need a licence.
Circumventing technological protection
For the first time in the UK it will now be an infringement (and possibly also a criminal offence) to knowingly circumvent technological protection measures, or to supply software, equipment or services for that purpose.
This change prompted more comment than any other during the consultation process, mainly as to whether it would hinder legitimate activity under the fair dealing exceptions. The Regulations try to deal with this problem by a complex scheme under which those affected may issue a notice of complaint to the Secretary of State, who then has to investigate and give directions to the copyright proprietor to ensure that the fair dealing exception may be fully enjoyed.
Comment
The wording of the Regulations necessarily closely follows that of the Directive, which in its turn is uncannily similar in many places to the wording of the US Digital Millennium Copyright Act 1998. Cases under the US legislation have generated a great deal of public interest, both in the US and Europe. The stage is now set for the battle between rights holders and those who use digital technology for peer to peer file sharing and other unlawful activities to commence in the UK. It may not be long before the Regulations are tested in court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
