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Intellectual property

Copyright

This section contains:

Introduction


Works covered by copyright


Qualification requirements


Date of creation of copyright


Literary, dramatic and musical works


Databases


Artistic works


Sound recordings


Films


Broadcasts


Typographical arrangement of published editions


Ownership of copyright works


Orphan works


Acts permitted in relation to copyright works


Duration of copyright


Scope of copyright


Assignment, licence and dealings in copyright


Acts permitted without owner's consent


Collecting societies


Infringement of copyright


Moral Rights

Copyright Tribunal

Enforcement of copyright


Artist's Resale Right


Public Lending Right


Introduction

Copyright is a type of intellectual property right which the law gives to the creators or owners of certain original literary, artistic and other creative works to prevent unauthorised copying. A form of copyright has been in existence in the UK since an Act of 1710.

Copyright does not confer on the owner a monopoly in a work, in the sense that if another person independently creates a similar work without copying the original, the owner of the first work may not prevent use of the similar work.

Copyright does not protect a concept but only the expression of the concept. For example, if a software developer can create a software application having the same functions as an existing software application but without copying it, the owner of the existing application may not prevent the developer from creating or using such an application.

This contrasts with registered intellectual property rights such as patents and trade marks. The corollary is that the creator does not have to apply to any body for registration of the copyright. Copyright arises automatically if at the time the work was created by an author who is a citizen of or resident in the UK or if the work was first published in the UK. In the case of a broadcast, copyright arises if the broadcast was made from the UK. In addition, foreign created works may be entitled to copyright in UK law by virtue of EU law or international treaties.

Copyright in UK law is now governed chiefly by the Copyright, Designs and Patents Act 1988 (“CDPA 1988”) and by a number of statutory instruments made to implement EU legislation. Copyright subsists (CDPA 1988 s 1) in original literary, dramatic, musical and artistic works, sound recordings, films and broadcasts, and typographical arrangements of published editions. See below for explanation of these types of work.


By reason of EU law and international treaties (the Berne Convention and the, WIPO Copyright Treaty), UK copyright will extend to works made by an author who is a national of or resident in any member state of the EEA or convention country or if the work was first published in a convention country. Further information on the conventions is available on the WIPO website

The UK Intellectual Property Office (IPO) offers a copyright notice service aimed at those who do not have access to expert legal advice such as Small and Medium sized Enterprises. It is designed to address issues which are of broad concern. The service does not intend to deal with specific disputes which are primarily of interest only to the parties concerned, and does not have statutory force.

Works covered by copyright

Copyright subsists in certain works described in the CPDA s.1 as follows:

(a) original literary, dramatic, musical or artistic works;

(b) sound recordings, films or broadcasts, and

(c) the typographical arrangement of published editions.

Further detail about the scope of the above works is set out below.

Copyright does not subsist in a work unless the requirements of the CPDA with respect to qualification for copyright protection are met [see below and CPDA s.153].

Although they are rights separate from copyright, for convenience
Artist's Resale Right and Public Lending Right are dealt with in this section.

Qualification requirements

Copyright does not subsist in a work unless the qualification requirements are satisfied as regards the author or the country in which the work was first published or, in the case of a broadcast , the country from which the broadcast was made (CPDA s.153).


Qualification by reference to author

A work qualifies for copyright protection if the author was at the relevant time* a 'qualifying person', i.e.[CPDA s.154]:

(a) a British citizen,[a national of another EEA state, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a British subject or a British protected person within the meaning of the British Nationality Act 1981; or

(b) an individual domiciled or resident in the United Kingdom or another EEA state or in the Channel Islands, the Isle of Man or Gibraltar or in a country to which the relevant provisions of the CPDA extend**; or

(c) a body incorporated under the law of a part of the United Kingdom or another EEA state or of the Channel Islands, the Isle of Man or Gibraltar or of a country to which the relevant provisions of the CPDA extend"*.

Works of of joint authorship: qualify for copyright protection if at the relevant time* any of the authors satisfies the qualification requirements.

* The relevant time in relation to a literary, dramatic, musical or artistic work is:

* in the case of an unpublished work, when the work was made or, if the making of the work extended over a period, a substantial part of that period;

* in the case of a published work, when the work was first published or, if the author had died before that time, immediately before his death.

The relevant time in relation to other descriptions of work is as follows:

* in the case of a sound recording or film, when it was made;

* in the case of a broadcast, when the broadcast was made;

* in the case of the typographical arrangement of a published edition, when the edition was first published.

** Extension to other countries: see Copyright and Performances (Application to Other Countries) Order 2013 (SI 2013/536) Schedule for the list of countries specified (by virtue of international treaties to which the UK is a party).

If the qualification requirements are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

Qualification by reference to country of first publication

A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition, qualifies for copyright protection if it is first published [CPDA s.155]:

(a) in the United Kingdom, another EEA state, the Channel Islands, the Isle of Man or Gibraltar; or

(b) in a country to which the relevant provisions of the CPDA extend*.

* Extension to other countries: see Copyright and Performances (Application to Other Countries) Order 2013 (SI 2013/536) Schedule for the list of countries specified (by virtue of international treaties to which the UK is a party).

For this purpose, publication in one country is not regarded as other than the first publication by reason of simultaneous publication elsewhere. 'Simultneous' also includes publication elsewhere within the previous 30 days.


Qualification by reference to place of transmission

A broadcast qualifies for copyright protection if it is made from. a place in:

(a) the United Kingdom[, another EEA state, the Channel Islands, the Isle of Man or Gibraltar;, or

(b) a country to which the relevant provisions of the CPDA extend*

* See Extensions to other countries, above.

Date of creation of copyright

Under UK law, there is no official requirement to register a work in order for it to qualify for copyright protection.

However, in order to establish the date on which a copyright work was created, it may be desirable to arrange for independent evidence. One way in which this may be done is to send it to yourself by recorded delivery a sealed envelope containing the copyright work.

Alternatively, there are registration facilities such as the UK Copyright Service

Literary, dramatic and musical works

“Literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung. Included are a table or compilation (other than a database),a computer program, preparatory design material for a computer program and a database.

Computer programs as literary works: to quote from Lord Justice Jacob in Nova Productions v Mazooma [2006] EWCA Civ 1044: "..it is not entirely self-evident that a computer program is a 'literary work'. But that has been the explicit position under UK copyright law since 1985 and the common view is that it was so before. Other EU countries took, or may have taken, different views. To harmonise the law to some extent at least, the EU decided that protection of computer programs as literary works should be the rule. So the Software Directive, 91/250 was passed requiring member states to provide protection for programs as literary works. The UK implemented the Directive by the Copyright (Computer Programs) Regulations 1992 SI 1992/3233.".


A "dramatic work" is a work of action, with or without words or music, which is capable of being performed before an audience. “Dramatic work” includes a work of dance or mime.

“Musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

 

Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise [CDPA 1988 s.3].

Video games: if the program code of a computer program has not been copied, a video game will not be protected as an 'artistic' or 'dramatic' work merely because another video game  is based on similar concepts or looks similar. See e.g.:

Nova Productions v Mazooma [2006] EWCA Civ 1044


Comment: the lack of copyright protection for ‘gameplay’ styles in video games has been criticised because it leads to the ‘cloning’ of successful games and hampers innovation within the industry.[see e.g. Intellectual Property Review, November 2012] .

What's new on this topic

16/11/2014: South African website and its owner liable for copyright infringement in England


Databases

The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) (the Database Regulations) implemented the provisions of EU Council Directive No 96/9/EC of 11 March 1996 on the legal protection of databases (the Database Directive) and came into force on 1 January 1998.

The Database Directive harmonised the laws of EU member states relating to the protection of copyright in databases and also introduced a new right to prevent extraction and re-utilisation of the contents of a database (database right).

The CPDA formerly made no specific provision for databases. The Database Regulations manded the CPDA to align the law with the EU directive. The CPDA was therefore amended to provide that a database is a type of 'literary work'  but that copyright protection should only be accorded to a database which by virtue of the selection or arrangement of the contents constitutes the author's own intellectual creation. Other changes to copyright law in relation to databases included:

* CPDA s.29 changed so that research for a commercial purpose was removed from the general application of the fair dealing provision in relation to a database;

* a new CPDA s.50D containing specific exceptions to the exclusive rights of the copyright owner which permit any person having a right to use a database to do any acts that are necessary for access to and use of the contents of the database without infringing copyright;

* a new CPDA s.296B which renders void any term in an agreement which seeks to prohibit or restrict the doing of any act permitted under section 50D.

Database right

In order to implement the EU Database Directive, the UK Database Regulations created a new intellectual property right (database right) which applies to a database in respect of which there has been a substantial investment [Database Regulations reg.13].

Qualification for maker: database right does not subsist in a database unless, at the he time when the database was made, or if the making extended over a period, a substantial part of that period, its maker, or if it was made jointly, at least one of the joint makers, was:

* an individual who was a national of or habitually resident within an EEA state or Isle of Man; or

* a legal entity, partnership or other unincorporated body formed under the law of an EEA state or Isle of Man which has its central administration or principal place of business within the EEA/Isle of Man, or has its registered office within the EEA/Isle of Man and the body's operations are linked on an ongoing basis with the economy of an EEA state/Isle of Man.

Maker is first owner of database right: the 'maker' i.e. the person who takes the initiative and risk of investing in obtaining, verifying or presenting the contents er is the first owner of database right [regs.14/15].


Name on database presumed  to be maker: if  a person puts his name on the databse as maker, he is presumed in any legal proceedings to be the maker unless the contrary is proved.

Duration of database right: the term of protection of database right is 15 years from the end of the calendar year in which the making of the database was completed. Substantial changes give rise to a further term of protection [reg.17].


Application of copyright provisions to database right: in relation to the following, provisions of the CPDA apply in relation to database right as they apply in relation to copyright and copyright works: dealing with rights in copyright works (CPDA ss.90-93); rights and remedies of copyright owner and exclusive licensee (CPDA ss.96- 102); (supplementary provisions relating to delivery up (CPDA ss.113-114); jurisdiction of county court and sheriff court {CPDA s.115) [reg.23].

Right to use database: 'lawful users' (e.g. licensees under terms of use) are entitled to extract or re-utilise insubstantial parts of a database. Any term or condition in an agreement e.g. terms of use which seeks to prohibit or restrict such extraction or re-utilisation are void [regs.19/20].

Infringement of database right: it is an infringement of database right if, without the consent of the owner of the right, a person extracts or re-utilises all or a substantial part of the contents of the database. The repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents [reg..16].

Note that non-substantial use is permitted even if the terms of use of the database seek to restrict or prevent it (see Right to use database above).

There are several exceptions to database right - see below.

Exceptions to database right

There are a few exceptions to database right which are described in summary below:

Teaching or research: if the database has been made available to the public in any manner. 'fair dealing' with even a substantial part of its contents is not an infringement if done by a 'lawful user' for the purpose of illustration for teaching or research and not for any commercial purpose, and the source is indicated [reg.20].

Deposit Library: database right is not infringed by the copying of a work from the internet by a deposit library undeer certain conditions [reg.20A].


Assumption as to expiry of database right: database right is not infringed by the extraction or re-utilisation of a substantial part of the contents of the database at a time when it is not possible by reasonable inquiry to ascertain the identity of the maker(s) and it is reasonable to assume that database right has expired.

Material open to public inspection or on official register: in the case of a database open to public inspection under a statutory requirement or on a statutory register, the extraction of all or a substantial part of the contents containing factual information of any description, with official authority, for certain limited and non-commercial purposes, is not an infringement [Sched.1 para.3]

State or official uses: certain official uses by the Crown in the course of public business, in Parliamentary and judicial proceedings, for Royal Commissions and statutory inquiries and in Public Records Act are permitted without infringement, subject to conditions [Sched.1]

Artistic works

“Artistic work” means a graphic work, photograph, sculpture or collage, irrespective of artistic quality, a work of architecture being a building or a model for a building, or a work of artistic craftsmanship.


“Building” includes any fixed structure, and a part of a building or fixed structure.
“Graphic work” includes any painting, drawing, diagram, map, chart or plan, and any engraving, etching, lithograph, woodcut or similar work.


“Photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.


“Sculpture” includes a cast or model made for purposes of sculpture.
(CDPA 1988 s.4)

Sound recordings

“Sound recording” means a recording of sounds, from which the sounds may be reproduced, or a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.


Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.
(CDPA 1988 s.5)

Films

“Film” means a recording on any medium from which a moving image may by any means be produced. The sound track accompanying a film is be treated as part of the film. (CDPA 1988 s.5B)

Broadcasts

“Broadcast” means an electronic transmission of visual images, sounds or other information which is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or is transmitted at a time determined solely by the person making the transmission for presentation to members of the public.
Excepted from the definition of “broadcast” is:
* any internet transmission unless it is a transmission taking place simultaneously on the internet and by other means, a concurrent transmission of a live event
* a transmission of recorded moving images or sounds forming part of a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person
An encrypted transmission is regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.
(CDPA 1988 s.6)

Typographical arrangements

Typographical arrangement of published editions: the typographical arrangement of published editions of literary, musical and dramatic works is protected by copyright, in addition to the copyright in the work itself.
Copyright does not subsist in the typographical arrangement of a published edition to the extent that it reproduces the typographical arrangement of a previous edition.
(CDPA 1988 s.8).

What’s new item on this topic [see What’s new page or archive for full item]:

12/06/2013: Beijing Treaty (WIPO) treaty for protection of audiovisual performances
A new World Intellectual Property Organisation (WIPO) treaty which includes new standards for the protection of audiovisual performances has been signed by the UK. The treaty sets out new standards of international protection for actors, dancers, singers and musicians, providing a number of rights including the right to control the broadcasting, copying and distribution of performances.

Ownership of copyright works

Generally, the author of a work is the first owner of any copyright in it, subject to certain specific rules summarised below [(CDPA 1988 s.11].


“Author” means the person who creates a work. In the following cases the author is:


* the producer, in the case of a sound recording;
* the producer and the principal director, in the case of a film;
* the person making the broadcast in the case of a broadcast;
* the publisher in the case of the typographical arrangement of a published edition, the publisher;
* the person by whom the arrangements necessary for the creation of the work are undertaken, in the case of a literary, dramatic, musical or artistic work which is computer-generated.


A “work of joint authorship” means a work 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.

Employees: in the case of a literary, dramatic, musical or artistic work or a film, made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

Commissioner of a copyright work: it is sometimes assumed that a person who commissions an author to create a work becomes the owner. This is not the case unless the commissioner acquires the work by an assignment which must be in writing. In the absence of a written assignment, the commissioner will generally be a licensee of the copyright but there may be some uncertainty as to the terms of the licence unless it is in writng.

Orphan works

Works whose authors are unknown and not readily identifiable are known as 'orphan works'. There have been recent developments in this area as a result of EU legislation- see below.

What’s new items [go to What’s new? page or archive for more details]:

28/10/2014: Licensing scheme introduced for ‘orphan’ copyright and performance rights

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 SI 2014/2863 come into effect on 29 October 2014.

Following a government consultation earlier this year, the new regulations introduce a licensing scheme whereby orphan works may be used for both commercial and non-commercial use. The licensing scheme will be operated by the IPO. Applicants for a licence will have to carry out a ‘diligent search’ before a work may be classed as orphan, and it will provide for payment of royalties. Further details and costs may be obtained from the IPO website.

08/07/2014: Copyright and Rights in Performances in ‘Orphan Works’

The draft Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 will come into effect on 29 October 2014 subject to Parliamentary approval.

The Order establishes a licensing scheme which may be used by anyone wishing to use an orphaned work, applies to all types of works, and allows any type of use for which the right holder’s permission would otherwise be required.

Duration of copyright

Literary, dramatic, musical or artistic works
Copyright in a literary, dramatic, musical or artistic work expires:
* at the end of the period of 70 years from the end of the calendar year in which the author dies
* if the work is of unknown authorship, copyright expires at the end of the period of 70 years from the end of the calendar year in which the work was made, or if the work is made available to the public if during that period, at the end of the period of 70 years from the end of the calendar year in which it is first made available to the public.

Sound recordings
Copyright in a sound recording expires:
* at the end of the period of 50 years from the end of the calendar year in which the recording is made or
* if during that period the recording is published, 50 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, 50 years from the end of the calendar year in which it is first so made available.
News item: see below: 19/07/2013: Copyright and Duration of Rights in Performances Regulations 2013

Films
Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons:
* the principal director
* the author of the screenplay,
* the author of the dialogue
* the composer of music specially created for and used in the film
If the identity of one or more of the above persons is not known, the relevant death is that of last whose identity is known.
If the identity of all of the above persons is unknown, copyright expires at the end of the period of 70 years from the end of the calendar year in which the film was made, or if during that period the film is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.
Making available to the public includes showing in public or communicating to the public.

Broadcasts
Copyright in a broadcast expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made.
Where the author of the broadcast is not a national of an EEA state, the duration of copyright in the broadcast is that to which it is entitled in the country of which the author is a national, provided that does not exceed the period which would apply as above.

Typographical arrangement of published editions
Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

Scope of copyright

The CDPA 1988 grants to the owner of the copyright in a work the exclusive rights to do certain acts in relation to the work ("the restricted acts”).The restricted acts are:


(a) to copy the work;
(b) to issue copies of the work to the public;
(ba) to rent or lend the work to the public;
(c) to perform, show, or play the work in public;
(d) to communicate the work to the public;
(e) to make an adaptation of the work or to do any of the above acts in relation to an adaptation.

Assignment, licence and dealings in copyright

Copyright may be assigned, in whole or in part, and licensed. [CPDA s.90]

Assignment

An assignment, i.e. a sale or other type of transfer of copyright is not effective unless it is in writing signed by or on behalf of the assignor. Copyright may also be transferred by will or by operation of law, as personal or moveable property.

An assignment or other transmission of copyright may be partial, that is, limited so as to apply  to one or more, but not all, of the things the copyright owner has the exclusive right to do. An assignment may also apply to part, but not the whole, of the period for which the copyright is to subsist.

Licence

Copyright may be licensed, that is, the owner of the copyright  may grant a person the right to use the copyright subject to the terms of the licence agreement, which may for example limit the duration of the licence, the scope of the permitted acts, the medium to be used, the territory and other matters, as well as the fee for the use of the right.

A licence may be exclusive, i.e. it excludes everyone other than the licensee from using the copyright, including the owner, or non-exclusive.

A licence need not be in writing except for an exclusive licence.


Exclusive licences: an “exclusive licence” means a licence in writing signed by or on behalf of the copyright owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner. [CPDA s.92].

A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser who acquires the copyright in good faith for valuable consideration (i.e. for more than a merely nominal price or value)and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser. 'Constructive' notice arises where a person did not have actual notice but under principles of equity.

Collective licensing: collective licensing for a particular group of copyright owners may be carried out by a collecting society.

Comment: the licence is the basis for the use of most copyright works. So for example, the right to use most software applications (except in the case of 'open source' works), and the use of websites is subject to detailed terms and conditions of licence. Breach of the terms of such a licence will be not only a breach of contract but also likely an infringement of the copyright.

A written licence will generally be preferable than an unwritten for reasons of certainty.

12/11/2014: IPO provides guidance on copyright assignment

The IPO has published a copyright notice which provides advice for people who may wish to assign their own copyright or have been asked to assign copyright. It is not designed to be conclusive view of the law but provides an overview of the key issues to consider.

Acts permitted without consent of copyright owner

Certain dealings in relation to copyright works are permitted notwithstanding the subsistence of copyright. These provisions relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts, such as contractual rights [CDPA 1988 s.28(1)].

* Copyright assumed expired: in a literary, dramatic, musical or artistic work, any act done at a time when (a) it is not possible by reasonable inquiry to ascertain the identity of the author, and(b) it is reasonable to assume that copyright has expired or that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made. This does not apply in relation to any a work in which copyright is owned by the Crown or certain international organisation by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than 70 years. [CDPA s. 57]

* Temporary copies: making temporary copies which are transient and incidental, which have no independent economic significance for the sole purpose of a lawful use of the work or its transmission in a network (CDPA 1988 s.28A).

What’s new item on this topic [see What’s new page or archive for full item]:

10/06/2014: ECJ rules in Newspaper Licensing Agency Ltd case


Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd and Others C-360/13  Hearing Date: 5 June 2014

The Court of Justice of the European Union (ECJ) ruled that art 5 of Directive (EC) 2001/29 of the European Parliament and of the Council (on the harmonisation of certain aspects of copyright and related rights in the information society) should be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfied the conditions that those copies had to be temporary, that they should be transient or incidental in nature and that they should constitute an integral and essential part of a technological process, as well as the conditions laid down in art 5(5) of that directive, and that they might therefore be made without the authorisation of the copyright holders.

Comment: this ECJ ruling follows the decision of the UK Supreme Court which overturned the decision of the Court of Appeal (see What’s new item 27/07/2011: The Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and others). The Supreme Court did in fact itself decide the issue but it nonetheless requested the preliminary ruling from the ECJ is it considered that it would be desirable for the purpose of ensuring the uniform application of EU law throughout the territory of the European Union.


* Research/private study: research for a non-commercial purpose or for private study, (CDPA 1988 s.29).

* Criticism, review, news reporting: criticism, review, and news reporting made available to the public (CDPA 1988 s.30).


Other permitted acts

There is a large number of categories of acts which are permitted subject to detailed conditions in the fields of education libraries and archives and public administration (see CDPA 1988 ss.33-50).

What’s new items on this topic [see What’s new page or archive for full item]:

09/06/2014: New copyright exceptions for personal copying and parodies


The draft Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 have been published. Subject to Parliamentary approval, the changes will come into effect on 1 October 2014. The new exception would allow individual users to make limited personal copies of copyright works (other than a computer program) and recordings of performances for private use, without the risk of copyright infringement.

The draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014. Subject to Parliamentary approval, the regulations will come into force on 1 October 2014.

The regulations will amend copyright law in order to permit copying from a copyright work for the purposes of caricature, parody or pastiche, to the extent the use is fair dealing from 1 October 2014. The amendments will also permit the use of a quotation from a copyright work (whether for criticism or review or otherwise) provided certain conditions are met.

01/02/2014: Reforms to copyright law come into force

The exceptions to copyright for ‘research and private study’, ‘text and datamining’, ‘education and teaching’, ‘archiving and preservation’, ‘public administration’ and to permit ‘accessible formats for disabled people’ come into force on the 1st June 2014

Collecting societies

A copyright collecting agency or collecting society acts on behalf of its members who in general are the holders of copyright works of a description covered by the society. The society has authority given by its members to market, license and receive royalties in respect of copyright works. The works may be literary, artistic, musical or dramatic.

In the UK, the societies are generally constituted as private law companies operating on a not-for-profit basis. Rights holders may choose to opt in to the system by authorising the collecting society license their works. The benefits offered by such societies are:

* for the rights holders, the opportunity to delegate the marketing and licensing of their works, and the collection of royalties and distribution to them after the society's expenses have been met; and

* for users, whether business or private individuals, the facility to deal with one body to obtain a blanket licence covering all or a range of works for an annual or other periodic term, or for a single event.

Societies operating in the UK include":

Authors' Licensing & Collecting Society (ALCS)
Artists' Collecting Society (ACS)
Broadcasting Data Services (BDS)
British Equity Collecting Society (BECS)
Christian Copyright Licensing International United Kingdom
Christian Video Licensing International United Kingdom
Copyright Licensing Agency (CLA)
Design and Artists Copyright Society (DACS)
Directors UK (D-UK), formerly the Directors' and Producers' Rights Society (DPRS)
Educational Recording Agency (ERA)
Motion Picture Licensing Company (MPLC)
Newspaper Licensing Agency (NLA)
Open University Worldwide (OUW)
PRS for Music, formerly MCPS-PRS Alliance
Phonographic Performance Limited (PPL)
Publishers' Licensing Society (PLS)
Video Performance Limited (VPL)

*Source: Wikipedia

Music licences: perhaps the most generally used collective licences are those available from the PRS and the PPL in order to allow businesses to play music as a "public performance" which includes playing music to employees in an office, shop, factory or other place of work. See: Music licence

What’s new item on this topic [see What’s new page or archive for full item]:

9/11/2013: IPO consults on extended copyright licensing
The Intellectual Property Office (IPO) is consulting on draft Copyright (Extended Collective Licensing) Regulations. Extended Collective Licensing (ECL) is a type of licensing which allows an authorised collecting society to extend an existing collective licence so that it can license on behalf of all rights holders in the sector, except those who opt out.

12/06/2013: Beijing Treaty (WIPO) treaty for protection of audiovisual performances
A new World Intellectual Property Organisation (WIPO) treaty which includes new standards for the protection of audiovisual performances has been signed by the UK. The treaty sets out new standards of international protection for actors, dancers, singers and musicians, providing a number of rights including the right to control the broadcasting, copying and distribution of performances.

Infringement of copyright

Copyright in a work is infringed by any person who, without the licence of the copyright owner does, or authorises another to do, any of the above acts that are restricted by copyright [CDPA 1988 s.16(1)/(2)].

Ther detailed descriptions of each of the above categories of restricted act are set out in ss. 17-26:


17 Infringement of copyright by copying;

18 Infringement by issue of copies to the public;

18A Infringement by rental or lending of work to the public;

19 Infringement by performance, showing or playing of work in public;

20 Infringement by communication to the public;

21 Infringement by making adaptation or act done in relation to adaptation;

22 Secondary infringement: importing infringing copy;

23 Secondary infringement: possessing or dealing with infringing copy;

24 Secondary infringement: providing means for making infringing copies;

25 Secondary infringement: permitting use of premises for infringing performance;

26 Secondary infringement: provision of apparatus for infringing performance, &c

 

Certain dealings in relation to copyright works are permitted notwithstanding the subsistence of copyright. These provisions relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts, such as contractual rights (CDPA 1988 s.28(1)). See above: Acts permitted in relation to copyright works

Copyright, design rights and registered designs

Certain exceptions to copyright protection exist in order to prevent overlap between copyright, design right, and registration under the Registered Designs Act 1949 (“RDA”).

Moral Rights

Moral rights are a category of rights given to authors and others which are ancillary to but separate from copyright. These rights include the right to be identified as author or director and the right to object to derogatory treatment of a work.

Right to be identified as the author or director of the work


The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work (CDPA 1988 s.77) but the right is not infringed unless it has been asserted in accordance with section 78.

There are certain exceptions to the right including the following:

* The right does not apply in relation to a computer program, the design of a typeface or any computer-generated work.

* The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested in the author's or director's employer by virtue of CPDA s.11(2) (works produced in the course of employment).

* The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work:

(a) section 30 (fair dealing for certain purposes), so far as it relates to the reporting of current events by means of a sound recording, film or broadcas];

(b) section 31 (incidental inclusion of work in an artistic work, sound recording, film [or broadcast;

(c) [repealed]. .

(d) section 45 (parliamentary and judicial proceedings);

(e) section 46(1) or (2) (Royal Commissions and statutory inquiries);

(f) section 51 (use of design documents and models);

(g) section 52 (effect of exploitation of design derived from artistic work);

(h)[section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c);

* The right is also not infringed by any act done for the purposes of an examination which by virtue of any provision of Chapter 3 of Part 1 would not infringe copyright.

* The right does not apply in relation to any work made for the purpose of reporting current events.

* The right does not apply in relation to the publication in  a newspaper, magazine or similar periodical, or (b) an encyclopaedia, dictionary, yearbook or other collective work of reference

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

* The right does not apply in relation to a work in which Crown copyright or Parliamentary copyright subsists, or a work in which copyright originally vested in an international organisation by virtue of section 168, unless the author or director has previously been identified as such in or on published copies of the work.

Right not to have work subjected to derogatory treatment


The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment (CPDA s.80).

'Treatment' of a work for this purpose means any addition to, deletion from or alteration to or adaptation of the work, other than a translation of a literary or dramatic work, or an arrangement or transcription of a musical work involving no more than a change of key or register.

The treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.

In the case of a literary, dramatic or musical work the right is infringed by a person who publishes commercially, performs in public [or communicates to the public] a derogatory treatment of the work; or issues to the public copies of a film or sound recording of, or including, a derogatory treatment of the work.

In the case of an artistic work the right is infringed by a person who publishes commercially or exhibits in public a derogatory treatment of the work,[or communicates to the public a visual image of a derogatory treatment of the work, shows in public a film including a visual image of a derogatory treatment of the work or issues to the public copies of such a film, or

In the case of a work of architecture in the form of a model for a building, a sculpture, or a work of artistic craftsmanship, the right is infringed by a person who issues to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work. This does not apply to a work of architecture in the form of a building; but where the author of such a work is identified on the building and it is the subject of derogatory treatment he has the right to require the identification to be removed.

In the case of a film, the right is infringed by a person who shows in public or communicates to the public a derogatory treatment of the film; or issues to the public copies of a derogatory treatment of the film.


Exceptions to right to object to derogatory treatment of work) is subject to the following exceptions:

* The right does not apply to a computer program or to any computer-generated work.

* The right does not apply in relation to any work made for the purpose of reporting current events.

* The right does not apply in relation to the publication in a newspaper, magazine or similar periodical, or an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

Tthe right does not apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.

The right is not infringed by an act which by virtue of CPDA s.57 or 66A (acts permitted on assumptions as to expiry of copyright, &c) would not infringe copyright.

The right is not infringed by anything done for the purpose of:

* avoiding the commission of an offence,

* complying with a duty imposed by or under an enactment, or

* in the case of the British Broadcasting Corporation, avoiding the inclusion in a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling;

provided, where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, that there is a sufficient disclaimer.

Copyright Tribunal


The Copyright Tribunal has jurisdiction to resolve (among other copyright issues) disputes between an operator of a copyright licensing scheme and a person claiming that he requires a licence, or an organisation claiming to be representative of such persons.
For further information, visit the website of the Copyright Tribunal.

Case law example: Phonographic Performance Limited v The British Hospitality Association and other Interested Parties [2009] EWHC 209 (Ch).

PPL restructured its licence fee tariffs in 2005, which resulted in a substantial increase in the tariffs, e.g. up to 400% in the case of some large restaurants. The trade associations of affected business users persuaded the government to refer the issue to the Copyright Tribunal. The trade associations included the British Hospitality Association, British Beer and Pub Association and the British Retail Consortium.

The Copyright Tribunal determined broadly that the fees were unfair and required substantial reductions. The decision allowed licensees who paid the full tariff to make retrospective claims for sums over £50 (excluding VAT).

Legaleze comment: in view of the legal complexity and expense, Copyright Tribunal proceedings will normally only be cost efficient if they are instituted on a group basis, particularly by a trade association.

Enforcement of copyright

Civil enforcement
Copyright may be enforced by legal action to recover damages, an account of profits and/or injunction, subject to the general law and rules of procedure.

What’s new item on this topic [see What’s new page or archive for full item]:


A controversial area is the liability of internet service providers and search engines to prevent infringement of copyright. See below: 15/11/2013: Film studios win film website blocking orders.

Criminal enforcement
The CPDA creates a number of criminal offences including:

* making or dealing in the course of a business an article which he knows or has reason to believe is, an infringing copy of a copyright work;
*  making an article specifically designed or adapted for making copies of a particular copyright work, or having such an article in his possession, knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business;
* communicating a 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, if he knows or has reason to believe that, by doing so, he is infringing copyright in that work;
* causing a work to be performed, played or shown if he knew or had reason to believe that copyright would be infringed, where copyright is infringed (otherwise than by reception of a [communication to the public]) by the public performance of a literary, dramatic or musical work, or by the playing or showing in public of a sound recording or film.

Sanctions for such offences vary and may include a fine up to £50,000 or imprisonment for a term not exceeding two years, or both. There is provision for Director's criminal liability.

What's New [see What's New page or archive for full item]:

15/11/2013: Film studios win film website blocking orders

Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others
[2013] EWHC 3479 (Ch) Hearing Date 13 November 2013


This case concerned two websites, www.solarmovie.so and www.tubeplus.me, which facilitated access to a range of films and television programmes, by categorising and making the content searchable. The sites did not actually host the content.

03/07/2012: UsedSoft GmbH v Oracle International Corp. Case C-128/11

An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet. The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale

Artist's Resale Right

The Artist's Resale Right Regulations 2006 implement Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art [OJ No L 272, 13.10.2001, p 32]..

The Artist's Resale Right (ARR) entitles authors of original works of art (including paintings, engravings, sculpture and ceramics) to a royalty each time one of their works is resold through an auction house or art market professional.

Requirements as to nationality: resale right may only be exercised in respect of the sale of a work where its author is:

(a) living at the date of the sale and is at that date a national of  an EEA state or a state the legislation of which permits resale right protection for authors from EEA states and their successors in title; or

(b) deceased at the date of the sale and, at the date of the author's death, the author was a national of a state falling within paragraph (a).

Duration of right: the right lasts for the copyright period of the life of the creator and 70 years after the creator's death. Since January 2012 ARR has applied to qualifying works by artists who have been dead for less than 70 years.

Price trigger for right: the right only applies when the sale price reaches or exceeds the sterling equivalent of €1,000 and is calculated on a sliding scale (see table below). The maximum royalty payable on any single sale is €12,500.

Royalty                                                                                   Resale Price (in EUR €)

4%                                                                                           from  €1,000 up to €50,000
3%                                                                                           between €50,000.01 and €200,000
1%                                                                                           between €200,000.01 and €350,000
0.5%                                                                                        between €350,000.01 and €500,000
0.25%                                                                                      in excess of €500,000

The royalty is subject to compulsory collective management via the Design and Artists Copyright Society (DACS) from whose website further information is available.

What’s new item on this topic [see What’s new page or archive for full item]:

14/04/2014: IPO seeks evidence in consultation on Artist's resale right

The IPO is interested in evidence relating to  the scale and cost of administering the Right and the impact this has on art businesses, and the numbers of artists who are benefitting from the Right, particularly at the lower threshold.

Public Lending Right

The Public Lending Right Act 1979 provides for the public lending right scheme (the PLR Scheme) which confers on authors a right to receive a payment from time to time out of a central fund in respect of loans of their books to the public by local library authorities in the UK. The 1979 Act came into force on 1 March 1980.

The categories of books in respect of which public lending right subsists, and the scales of payments to be made from the central fund in respect of it, are set out in the PLR Scheme.

The PLR Scheme came into force between 14 June 1982 and 1 July 1983 and has since been varied by statutory instrument on numerous occasions [The Public Lending Right Scheme 1982 (Commencement) Order 1982]. The PLR rate was increased from 6.66p to 7.67p with effect from on 5th February 2016.[The Public Lending Right Scheme 1982 (Commencement of Variation) Order 2016 SI 2016 No. 15] and from 7.67p to 7.82p with effect from 8 February 2017 [Public Lending Right Scheme 1982 (Commencement of Variation) Order 2017 SI 2017/7].


The Secretary of State must prepare and lay before each House of Parliament annually a report on the working of the PLR Scheme.

Duration of right: subject to any provision made by the PLR Scheme, the duration of public lending right in respect of a book is from the date of the book's first publication (or, if later, the beginning of the year in which application is made for it to be registered) until 70 years have elapsed since the end of the year in which the author died.

To qualify for payment, applicants must apply to register their books.

The UK PLR scheme is administered by the British Library. Further information is available from the British Library's PPLR site.

[Page updated: 15/01/2017]

 

 

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