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UK implementation of the Copyright in the Information Society Directive
New copyright regulations - UK UK implementation of the Copyright in the Information Society Directive Trevor Cook, Bird & Bird On 31 October 2003 the Copyright and Related Rights Regulations 20031 (“the Regulations”), which implement EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright in the Information Society (“the Directive”), came into force. They extensively, and yet further, amend the Copyright Designs and Patents Act 1988 (“the Act”), the increasingly ragged patchwork of a statute which reflects the ravages wrought over the last decade on UK copyright law by the harmonisation programme of the European Commission in this area. This article reviews the UK’s implementation and concludes that there is still work to be done at Community level. Reproduction2
Copyright in Computer Programs
Computer Program Directive
Copyright in Databases
Database Directive
Communication and/or Making Available to the Public (including Broadcasting) by Satellite -
A. Introduction The significance and scope of the Directive is very much wider than its title would suggest. In large part it tracks the provisions of the WIPO Copyright and the WIPO Performances and Phonograms Treaties of 1996 (“the Treaties”), even though (except in relation to communication to the public, and the legal protection of technological measures and rights management information), the EU Member States already largely met, and in some cases exceeded, the standards set by the Treaties. In tracking the restricted acts the subject of the Treaties the Directive serves to extend EU (and thus ECJ) competence to Communication and/or Making Available to the Public (inc Broadcasting) other than by Satellite -
Distribution
Rental and Lending
The significance and scope of the Directive is very much wider than
Computer Computer Program Directive Program Directive Database Directive
Database Directive
Database Directive
Copyright Information Society other than in Directive Computer Programs and Databases
Satellite Broadcasting Directive
Information Society Information Society Directive Directive
Related Rights [Rental Lending & - Phonograms Related Rights Directive] Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Related Rights Directive Related Rights Related Rights Directive Directive Directive/Satellite Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & - Performance Related Rights Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Directive Related Rights Related Rights Related Rights Directive Directive/Satellite Directive Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & - Broadcast Related Rights Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Directive Related Rights Related Rights Directive Directive/Satellite Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & Related Rights - Film Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Directive Related Rights Related Rights Related Rights Directive Directive/Satellite Directive Broadcasting Directive/ Information Society Directive
Database Directive
its title would suggest
Rental Lending & Related Rights Directive
-
Computer Law & Security Report Vol. 20 no. 1 2004 ISSN 0267 3649/04 © 2004 Elsevier Ltd. All rights reserved
17
New copyright regulations - UK virtually all aspects of copyright and related rights, by a greater extent than any previous Directive in this area, as can be seen from the following, much simplified tabulation of those areas in which successive directives have harmonised such law: As will be apparent from the above tabulation, the relationship between Article 8 of the Rental, Lending and Related Rights Directive, (“Broadcasting and communication to the public”) and the new restricted acts, of communication to the public and making available to the public, is not addressed in the Directive, and copyright in computer programs and in databases, each already the subject of their own harmonisation measures, is largely excluded from the scope of the Directive. Article 13 of the Directive required national implementation to have taken place by 22 December 2002. This was a relatively short period after the Directive came into force on 21 June 2001, but that was already nearly five years after the passage of the Treaties, the delay being largely occasioned by the European Commission’s ambitious determination also to harmonise exceptions and reservations. Only once all Member States have implemented the Directive can they and the EU ratify the Treaties, which, somewhat embarrassingly they have still not yet been able to do, because to date only Austria, Denmark, Germany, Greece, Italy and now the UK have yet been able to implement the Directive3. This is not surprising, given the scope of the Directive and the difficulties in applying its provisions, especially as to exceptions and reservations, to very different provisions in national laws. In most respects the Regulations closely follow the terms of the Consultation Paper on implementation of the Directive in the United Kingdom issued by the Copyright Directorate of the Patent Office on 7 August 2002 (“the Consultation Paper”), which elicited over 300 responses.4 However in a couple of significant instances, discussed below, the Regulations depart from the Consultation Paper.
B. Communication to the public The most fundamental change to UK copyright law effected by the Regulations has been occasioned by the implementation of Article 3 of the Directive, which in turn, as to copyright in literary, dramatic, musical or artistic works and films, follows Article 8 of the WIPO Copyright Treaty. Not only has this involved broadening the scope of the previous restricted act of infringement under section 20 of the Act (by broadcasting or inclusion in a cable programme service), to cover “communication to 18
the public by electronic transmission” (rather than the “by wire or wireless means” of the Directive and the Treaties) and stating that this includes “the broadcasting of the work and the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them” but it has also involved redefining what constitutes a “broadcast” and abandoning the separate right subsisting in a “cable programme service”. The Consultation Paper had proposed seeking exhaustively to define the expression “communication to the public”. The Regulations no longer seek so to do, and the definition of “broadcast” in section 6 has also been amended in a different way to that envisaged by the Consultation Paper, as: … 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, and which is not excepted …..
The exception is for: … 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, or 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.
The intended effect is to provide that, as regards internet transmissions, only those which are of a conventional broadcast character will qualify as broadcasts. At the same time the concept of a “cable programme service” has, as proposed in the Consultation Paper, been wholly abandoned, with the consequential abolition of such a service as something in which, by section 7, “copyright”5 subsists. Its demise, and indeed the general omission of the expression from the Act now effected by the Regulations marks the end of the experiment set in train by the Act, the most notable feature of which was the finding that the cable programme right
New copyright regulations - UK could be applied to activities on the Internet in the well known case of Shetland Times v Wills,6 and, much more recently in Sony v Easyinternetcafe.7 Despite such cases, given the extraordinarily complex definition of what constituted a “cable programme service”, and the absence of any corresponding right in most other copyright and related rights systems, few will mourn its passing. The restricted act defined by section 20 applies to literary, dramatic, musical or artistic works and films, as well as to sound recordings and broadcasts. The corresponding restricted act of “making available” in relation to rights in performances, mandated by Article 3 of the Directive, which in turn expands on Article 10 of the WIPO Performances and Phonograms Treaty,8 is implemented by introducing a new section 182CA into the Act. Corresponding new criminal offences are introduced into sections 107 and 198 of the Act.
C. Exceptions and reservations In terms of exceptions and reservations the Regulations broadly follow the approach outlined in the Consultation Paper, in seeking to make as little change as possible to the Act as is consistent with the provisions of Article 5 of the Directive. Apart from a new exception, added as section 28A, (and for rights in performances, at paragraph 3A of Schedule 2) for the making of temporary copies, following almost exactly the wording of the mandatory exception introduced by Article 5(1) of the Directive at the behest of service providers, 9 the only wholly new exception to be added to the 1988 Act is that effected by bringing the Copyright (Visually Impaired Persons) Act 2002 into force simultaneously with the coming into force of the Regulations. One of the most significant amendments in practice to the existing exceptions and reservations outlined in the Consultation Paper and followed in the Regulations, is that which limits the “research” aspect of the section 29 exception for fair dealing for the purpose of research or private study to “research for a non-commercial purpose”. The result is that it will be very hard for any commercial enterprise ever in the future to seek to rely on this exception in relation for example to the photocopying third party material. The limited scope of the exception has been further emphasised in the Regulations by defining “private study” so as to exclude “any study which is directly or indirectly for a commercial purpose”. The amendments to this section have also resulted in the introduction, at section 50BA, of what at first sight appears to be new exception
relating to the observing, studying and testing of computer programs, as this exception, mandated by the Computer Program Directive, had previously been treated as being covered by section 29, but could no longer be so dealt with, in the light of the other amendments to the section. The exceptions provided by section 30, 32, 35, 36, 38, 39, 61, 63, 67 and 71, and any corresponding ones as to the rights in performances, have also been amended, largely as presaged in the Consultation Paper. As presaged in the Consultation Paper, the section 70 “timeshifting” private copying exception is retained, and indeed extended by new paragraph 17A of Schedule 2 to the Act to rights in performances in so far as incorporated in a broadcast. In contrast to most other European countries, which provide a generalised exception for private copying, coupled with a levy on recording media and equipment, there is no generalised exception for private copying in the UK. Neither is there a levy in the UK but the Government maintain that section 70 is consistent with Article 5.2(b) of the Directive, which requires that for private copying the rights holders “receive fair compensation”, in view of the last sentence of Recital 35 to the Directive, providing that “in certain situations where the prejudice to the rightholder would be minimal, no obligation for payment would arise”. Concerns as to the possible scope of the section, in the wake of an attempt, since the publication of the Consultation Paper, to use it in relation to an Internet cafe in Sony v Easyinternetcafe, have however led to the Regulations making it clear that it applies only to the making of recordings of broadcasts “in domestic premises”.10 Moreover the opportunity has been taken (as in the case of some other exceptions and reservations) to make clear that for the purpose of any subsequent dealings in it, a copy whose making the section excepts is to be treated as an infringing copy. A corresponding exception is introduced which applies to rights in performances.
It will be very hard for any commercial enterprise to rely on the [fair dealing exception] e.g. for copying third party material
The Consultation Paper had invited comment on the section 72 exception, as to the free public showing or playing of broadcasts, but had not suggested any particular approach. Rights owners had suggested its repeal but the Regulations go no further than to narrow the sound recording aspect of the exception, with the result that liability to pay royalties to owners of rights in recordings will arise where the broadcasts are heard in a commercial environment, but also amend the provisions by which collective licensing of such performances can be controlled.
19
New copyright regulations - UK D. Circumvention of protection measures The Regulations also follow closely the Consultation Paper in their approach to implementing Article 6 of the Directive, requiring legal remedies against the circumvention of technological protection measures, and Article 7, requiring protection against removal or alteration of electronic rights management information in order to enable, facilitate or conceal infringement of such rights. New section 296ZG, closely following the wording of Article 7, gives to the person who issues copies of a work to the public or who communicates it to the public a right against those who remove or alter electronic rights management information or who deal in a work where such information has been removed or altered, in every case with the requisite knowledge. There will be no corresponding criminal provision. As to Article 6, the fact that copyright in computer programs remains subject to a different regime to that established by the Directive in most other copyright works is emphasised in the implementation by the separate provisions for computer programs (section 296 as amended) and other types of copyright work (new sections 296ZA, ZB, ZC ZD, ZE and ZF). A limited exception from these new sections for research into cryptography, not envisaged in the Consultation Paper, is also introduced, as is a right of action in favour not only of the owners of copyright and related rights but also the owners of the technological protection measure technology. The Regulations maintain the approach of providing civil remedies against the act of circumvention under Article 6(1) of the Directive and both civil and criminal remedies against making and dealing in circumvention devices or providing circumvention services under Article 6(2) of the Directive. The criminal provisions set out in section 296ZB, as envisaged in the Consultation Paper, will only apply to those who traffic in devices and provide services designed to circumvent technological measures where they do so in the course of a business, or where they do so otherwise than in the course of a business, only where they do so “to such an extent as to affect prejudicially the copyright owner”. As explained in the Consultation Paper, the purpose of Article 6(4) is to make provision for the interplay between, on the one hand, legal protection for technological protection measures used by right holders to protect their works, and, on the other hand, the need for users to be able to benefit from certain exceptions in national laws which are permitted by Article 5 of the Directive. It has to date 20
been a source of major variation as between national implementations of the Directive. The Regulations address this, in relation to those particular exceptions listed as “permitted acts” in new Schedule 5A to the Act, by a new section 296ZE, which sets out a specific mechanism to deal with such cases, which is initiated by a notice of complaint to the relevant Government minister, who may then issue appropriate directions, where it is established that there is no subsisting voluntary measure or agreement, ensuring that the rights owner or exclusive licensee makes available to the complainant the means available for carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act.
E. Injunctions against service providers A major area of departure in the Regulations from the Consultation Paper is to afford to the owners of copyright and related rights a free standing right (in sections 97A and 191 JA) to secure an injunction against a “service provider” (defined by reference to regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002 (implementing in the UK the E-Commerce Directive) as: any person providing an “information society service”, which is in turn “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service) where that service provider has actual knowledge of another person using their service to infringe copyright”.
The new right implements Article 8(3) of the Directive, which requires that: rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Government would thus appear to have been insufficiently confident in the view which it had previously taken, namely that the common law was flexible enough to allow injunctions to be granted in such cases, given the analogy of other injunctions against those involved in, but not themselves infringing intellectual property rights. Ironically such doubts appear to have been exacerbated by the mandatory exception from copyright infringement for which service providers fought so hard and
New copyright regulations - UK conferred by Article 5(1) of the Directive, which is written verbatim into the Act by the Regulations, for: temporary acts of reproduction … which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance ….
Unlike the provisions of the E-Commerce Directive in relation to “mere conduit”, “hosting” and “caching”, and from which service providers also benefit, this exception does not merely provide an innocence defence to infringement – instead it deems the reproduction not to be an infringement, irrespective of questions of knowledge. The new stand alone right of action is qualified by the requirement for “actual knowledge” on the part of the service provider, in determining which the Regulations go on to provide that: … a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to - (a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 …and (b) the extent to which any notice includes (i) the full name and address of the sender of the notice; (ii) details of the infringement in question.
This stand alone right is thus perhaps one of the most important aspects of the implementation of the Directive in terms of real benefit to rights holders in their fight against Internet piracy.
F. Conclusions The implementation in the UK of the Directive has of necessity been intricate, but has been conducted carefully and thoroughly, as any one who seeks to amend up their copy of the 1988 Act can attest. Moreover, although it is apparent that in a number of respects the Government has taken account of the responses to its Consultation Paper, as neither rights owners nor users feel that their respective urgings were fully taken on board, the Government can also be said successfully to have
steered a middle course in its manner of implementation. Such implementation can however only serve to emphasise how extensively the Directive has changed the fine detail of UK copyright law, and how inconsistencies still exist as between certain aspects of EU copyright law which can only be resolved by yet further harmonising Directives. Moreover issues such as what constitutes “authorisation” in relation to copyright infringement, which is of critical importance to the control of P2P networks, remain wholly unharmonised at a Community level. All we can be assured of is that the assault on the structure of the patchwork that is the 1988 Act is not yet over. Trevor Cook, partner, Bird & Bird FOOTNOTES 1 See http://www.legislation.hmso.gov.uk/si/si2003/2003 2498.htm for details. 2 The brackets around the Rental Lending & Related Rights Directive in the “reproduction” column of the tabulation reflect the repeal by the Information Society Directive of the provisions of Article 7 of the Rental Lending & Related Rights Directive as to the restricted act of reproduction when applied to related rights. 3 A useful, albeit partisan, resource as to the respective national implementations of the Directive, and the proposals for so doing, is provided by the Foundation for Information Policy Research at http://www.fipr.org/ copyright/guide/eucd-guide.pdf. It was published on 8 September 2003 but it is intended that it be regularly updated
The implementation in the UK of the Directive has of necessity been intricate, but has
4 The Consultation Paper itself is at http://www.patent. gov.uk/about/consultations/eccopyright/index.htm and the Analysis of Responses and the Government Conclusions is at: http://www.patent.gov.uk/about/ consultations/responses/copydirect/index.htm.
been conducted
5 This is using the term “copyright” in the broad sense in which the term is used in the Act, so as to include all related rights except the rights of performers. From the perspective of most others in Europe the right that subsisted in cable programme services in the UK by virtue of section 7 of the Act, now repealed, would be a related right.
thoroughly
carefully and
6 [1997] FSR 604; [1997] EMLR 277 7 [2003] ECDR 297 8 Article 10 of the WIPO Performances and Phonograms Treaty, unlike Article 3 of the Directive, only confers the right in relation to performances fixed in phonograms. 9 Set out and discussed further below, in relation to “Injunctions against service providers”. 10 Although in Sony v Easyinternet Café the argument unsuccessfully advanced by the Defendants in relation to copying off the Internet also relied on the section 70 exception applying to the recording of a cable programme service, which will, under the Regulations, no longer be the case.
21
Copyright in Computer Programs
Computer Program Directive
Copyright in Databases
Database Directive
Communication and/or Making Available to the Public (including Broadcasting) by Satellite -
A. Introduction The significance and scope of the Directive is very much wider than its title would suggest. In large part it tracks the provisions of the WIPO Copyright and the WIPO Performances and Phonograms Treaties of 1996 (“the Treaties”), even though (except in relation to communication to the public, and the legal protection of technological measures and rights management information), the EU Member States already largely met, and in some cases exceeded, the standards set by the Treaties. In tracking the restricted acts the subject of the Treaties the Directive serves to extend EU (and thus ECJ) competence to Communication and/or Making Available to the Public (inc Broadcasting) other than by Satellite -
Distribution
Rental and Lending
The significance and scope of the Directive is very much wider than
Computer Computer Program Directive Program Directive Database Directive
Database Directive
Database Directive
Copyright Information Society other than in Directive Computer Programs and Databases
Satellite Broadcasting Directive
Information Society Information Society Directive Directive
Related Rights [Rental Lending & - Phonograms Related Rights Directive] Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Related Rights Directive Related Rights Related Rights Directive Directive Directive/Satellite Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & - Performance Related Rights Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Directive Related Rights Related Rights Related Rights Directive Directive/Satellite Directive Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & - Broadcast Related Rights Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Directive Related Rights Related Rights Directive Directive/Satellite Broadcasting Directive/ Information Society Directive
Related Rights [Rental Lending & Related Rights - Film Directive] Fixations Information Society Directive
Information Society Rental Lending & Rental Lending & Rental Lending & Directive Related Rights Related Rights Related Rights Directive Directive/Satellite Directive Broadcasting Directive/ Information Society Directive
Database Directive
its title would suggest
Rental Lending & Related Rights Directive
-
Computer Law & Security Report Vol. 20 no. 1 2004 ISSN 0267 3649/04 © 2004 Elsevier Ltd. All rights reserved
17
New copyright regulations - UK virtually all aspects of copyright and related rights, by a greater extent than any previous Directive in this area, as can be seen from the following, much simplified tabulation of those areas in which successive directives have harmonised such law: As will be apparent from the above tabulation, the relationship between Article 8 of the Rental, Lending and Related Rights Directive, (“Broadcasting and communication to the public”) and the new restricted acts, of communication to the public and making available to the public, is not addressed in the Directive, and copyright in computer programs and in databases, each already the subject of their own harmonisation measures, is largely excluded from the scope of the Directive. Article 13 of the Directive required national implementation to have taken place by 22 December 2002. This was a relatively short period after the Directive came into force on 21 June 2001, but that was already nearly five years after the passage of the Treaties, the delay being largely occasioned by the European Commission’s ambitious determination also to harmonise exceptions and reservations. Only once all Member States have implemented the Directive can they and the EU ratify the Treaties, which, somewhat embarrassingly they have still not yet been able to do, because to date only Austria, Denmark, Germany, Greece, Italy and now the UK have yet been able to implement the Directive3. This is not surprising, given the scope of the Directive and the difficulties in applying its provisions, especially as to exceptions and reservations, to very different provisions in national laws. In most respects the Regulations closely follow the terms of the Consultation Paper on implementation of the Directive in the United Kingdom issued by the Copyright Directorate of the Patent Office on 7 August 2002 (“the Consultation Paper”), which elicited over 300 responses.4 However in a couple of significant instances, discussed below, the Regulations depart from the Consultation Paper.
B. Communication to the public The most fundamental change to UK copyright law effected by the Regulations has been occasioned by the implementation of Article 3 of the Directive, which in turn, as to copyright in literary, dramatic, musical or artistic works and films, follows Article 8 of the WIPO Copyright Treaty. Not only has this involved broadening the scope of the previous restricted act of infringement under section 20 of the Act (by broadcasting or inclusion in a cable programme service), to cover “communication to 18
the public by electronic transmission” (rather than the “by wire or wireless means” of the Directive and the Treaties) and stating that this includes “the broadcasting of the work and the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them” but it has also involved redefining what constitutes a “broadcast” and abandoning the separate right subsisting in a “cable programme service”. The Consultation Paper had proposed seeking exhaustively to define the expression “communication to the public”. The Regulations no longer seek so to do, and the definition of “broadcast” in section 6 has also been amended in a different way to that envisaged by the Consultation Paper, as: … 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, and which is not excepted …..
The exception is for: … 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, or 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.
The intended effect is to provide that, as regards internet transmissions, only those which are of a conventional broadcast character will qualify as broadcasts. At the same time the concept of a “cable programme service” has, as proposed in the Consultation Paper, been wholly abandoned, with the consequential abolition of such a service as something in which, by section 7, “copyright”5 subsists. Its demise, and indeed the general omission of the expression from the Act now effected by the Regulations marks the end of the experiment set in train by the Act, the most notable feature of which was the finding that the cable programme right
New copyright regulations - UK could be applied to activities on the Internet in the well known case of Shetland Times v Wills,6 and, much more recently in Sony v Easyinternetcafe.7 Despite such cases, given the extraordinarily complex definition of what constituted a “cable programme service”, and the absence of any corresponding right in most other copyright and related rights systems, few will mourn its passing. The restricted act defined by section 20 applies to literary, dramatic, musical or artistic works and films, as well as to sound recordings and broadcasts. The corresponding restricted act of “making available” in relation to rights in performances, mandated by Article 3 of the Directive, which in turn expands on Article 10 of the WIPO Performances and Phonograms Treaty,8 is implemented by introducing a new section 182CA into the Act. Corresponding new criminal offences are introduced into sections 107 and 198 of the Act.
C. Exceptions and reservations In terms of exceptions and reservations the Regulations broadly follow the approach outlined in the Consultation Paper, in seeking to make as little change as possible to the Act as is consistent with the provisions of Article 5 of the Directive. Apart from a new exception, added as section 28A, (and for rights in performances, at paragraph 3A of Schedule 2) for the making of temporary copies, following almost exactly the wording of the mandatory exception introduced by Article 5(1) of the Directive at the behest of service providers, 9 the only wholly new exception to be added to the 1988 Act is that effected by bringing the Copyright (Visually Impaired Persons) Act 2002 into force simultaneously with the coming into force of the Regulations. One of the most significant amendments in practice to the existing exceptions and reservations outlined in the Consultation Paper and followed in the Regulations, is that which limits the “research” aspect of the section 29 exception for fair dealing for the purpose of research or private study to “research for a non-commercial purpose”. The result is that it will be very hard for any commercial enterprise ever in the future to seek to rely on this exception in relation for example to the photocopying third party material. The limited scope of the exception has been further emphasised in the Regulations by defining “private study” so as to exclude “any study which is directly or indirectly for a commercial purpose”. The amendments to this section have also resulted in the introduction, at section 50BA, of what at first sight appears to be new exception
relating to the observing, studying and testing of computer programs, as this exception, mandated by the Computer Program Directive, had previously been treated as being covered by section 29, but could no longer be so dealt with, in the light of the other amendments to the section. The exceptions provided by section 30, 32, 35, 36, 38, 39, 61, 63, 67 and 71, and any corresponding ones as to the rights in performances, have also been amended, largely as presaged in the Consultation Paper. As presaged in the Consultation Paper, the section 70 “timeshifting” private copying exception is retained, and indeed extended by new paragraph 17A of Schedule 2 to the Act to rights in performances in so far as incorporated in a broadcast. In contrast to most other European countries, which provide a generalised exception for private copying, coupled with a levy on recording media and equipment, there is no generalised exception for private copying in the UK. Neither is there a levy in the UK but the Government maintain that section 70 is consistent with Article 5.2(b) of the Directive, which requires that for private copying the rights holders “receive fair compensation”, in view of the last sentence of Recital 35 to the Directive, providing that “in certain situations where the prejudice to the rightholder would be minimal, no obligation for payment would arise”. Concerns as to the possible scope of the section, in the wake of an attempt, since the publication of the Consultation Paper, to use it in relation to an Internet cafe in Sony v Easyinternetcafe, have however led to the Regulations making it clear that it applies only to the making of recordings of broadcasts “in domestic premises”.10 Moreover the opportunity has been taken (as in the case of some other exceptions and reservations) to make clear that for the purpose of any subsequent dealings in it, a copy whose making the section excepts is to be treated as an infringing copy. A corresponding exception is introduced which applies to rights in performances.
It will be very hard for any commercial enterprise to rely on the [fair dealing exception] e.g. for copying third party material
The Consultation Paper had invited comment on the section 72 exception, as to the free public showing or playing of broadcasts, but had not suggested any particular approach. Rights owners had suggested its repeal but the Regulations go no further than to narrow the sound recording aspect of the exception, with the result that liability to pay royalties to owners of rights in recordings will arise where the broadcasts are heard in a commercial environment, but also amend the provisions by which collective licensing of such performances can be controlled.
19
New copyright regulations - UK D. Circumvention of protection measures The Regulations also follow closely the Consultation Paper in their approach to implementing Article 6 of the Directive, requiring legal remedies against the circumvention of technological protection measures, and Article 7, requiring protection against removal or alteration of electronic rights management information in order to enable, facilitate or conceal infringement of such rights. New section 296ZG, closely following the wording of Article 7, gives to the person who issues copies of a work to the public or who communicates it to the public a right against those who remove or alter electronic rights management information or who deal in a work where such information has been removed or altered, in every case with the requisite knowledge. There will be no corresponding criminal provision. As to Article 6, the fact that copyright in computer programs remains subject to a different regime to that established by the Directive in most other copyright works is emphasised in the implementation by the separate provisions for computer programs (section 296 as amended) and other types of copyright work (new sections 296ZA, ZB, ZC ZD, ZE and ZF). A limited exception from these new sections for research into cryptography, not envisaged in the Consultation Paper, is also introduced, as is a right of action in favour not only of the owners of copyright and related rights but also the owners of the technological protection measure technology. The Regulations maintain the approach of providing civil remedies against the act of circumvention under Article 6(1) of the Directive and both civil and criminal remedies against making and dealing in circumvention devices or providing circumvention services under Article 6(2) of the Directive. The criminal provisions set out in section 296ZB, as envisaged in the Consultation Paper, will only apply to those who traffic in devices and provide services designed to circumvent technological measures where they do so in the course of a business, or where they do so otherwise than in the course of a business, only where they do so “to such an extent as to affect prejudicially the copyright owner”. As explained in the Consultation Paper, the purpose of Article 6(4) is to make provision for the interplay between, on the one hand, legal protection for technological protection measures used by right holders to protect their works, and, on the other hand, the need for users to be able to benefit from certain exceptions in national laws which are permitted by Article 5 of the Directive. It has to date 20
been a source of major variation as between national implementations of the Directive. The Regulations address this, in relation to those particular exceptions listed as “permitted acts” in new Schedule 5A to the Act, by a new section 296ZE, which sets out a specific mechanism to deal with such cases, which is initiated by a notice of complaint to the relevant Government minister, who may then issue appropriate directions, where it is established that there is no subsisting voluntary measure or agreement, ensuring that the rights owner or exclusive licensee makes available to the complainant the means available for carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act.
E. Injunctions against service providers A major area of departure in the Regulations from the Consultation Paper is to afford to the owners of copyright and related rights a free standing right (in sections 97A and 191 JA) to secure an injunction against a “service provider” (defined by reference to regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002 (implementing in the UK the E-Commerce Directive) as: any person providing an “information society service”, which is in turn “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service) where that service provider has actual knowledge of another person using their service to infringe copyright”.
The new right implements Article 8(3) of the Directive, which requires that: rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Government would thus appear to have been insufficiently confident in the view which it had previously taken, namely that the common law was flexible enough to allow injunctions to be granted in such cases, given the analogy of other injunctions against those involved in, but not themselves infringing intellectual property rights. Ironically such doubts appear to have been exacerbated by the mandatory exception from copyright infringement for which service providers fought so hard and
New copyright regulations - UK conferred by Article 5(1) of the Directive, which is written verbatim into the Act by the Regulations, for: temporary acts of reproduction … which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance ….
Unlike the provisions of the E-Commerce Directive in relation to “mere conduit”, “hosting” and “caching”, and from which service providers also benefit, this exception does not merely provide an innocence defence to infringement – instead it deems the reproduction not to be an infringement, irrespective of questions of knowledge. The new stand alone right of action is qualified by the requirement for “actual knowledge” on the part of the service provider, in determining which the Regulations go on to provide that: … a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to - (a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 …and (b) the extent to which any notice includes (i) the full name and address of the sender of the notice; (ii) details of the infringement in question.
This stand alone right is thus perhaps one of the most important aspects of the implementation of the Directive in terms of real benefit to rights holders in their fight against Internet piracy.
F. Conclusions The implementation in the UK of the Directive has of necessity been intricate, but has been conducted carefully and thoroughly, as any one who seeks to amend up their copy of the 1988 Act can attest. Moreover, although it is apparent that in a number of respects the Government has taken account of the responses to its Consultation Paper, as neither rights owners nor users feel that their respective urgings were fully taken on board, the Government can also be said successfully to have
steered a middle course in its manner of implementation. Such implementation can however only serve to emphasise how extensively the Directive has changed the fine detail of UK copyright law, and how inconsistencies still exist as between certain aspects of EU copyright law which can only be resolved by yet further harmonising Directives. Moreover issues such as what constitutes “authorisation” in relation to copyright infringement, which is of critical importance to the control of P2P networks, remain wholly unharmonised at a Community level. All we can be assured of is that the assault on the structure of the patchwork that is the 1988 Act is not yet over. Trevor Cook, partner, Bird & Bird FOOTNOTES 1 See http://www.legislation.hmso.gov.uk/si/si2003/2003 2498.htm for details. 2 The brackets around the Rental Lending & Related Rights Directive in the “reproduction” column of the tabulation reflect the repeal by the Information Society Directive of the provisions of Article 7 of the Rental Lending & Related Rights Directive as to the restricted act of reproduction when applied to related rights. 3 A useful, albeit partisan, resource as to the respective national implementations of the Directive, and the proposals for so doing, is provided by the Foundation for Information Policy Research at http://www.fipr.org/ copyright/guide/eucd-guide.pdf. It was published on 8 September 2003 but it is intended that it be regularly updated
The implementation in the UK of the Directive has of necessity been intricate, but has
4 The Consultation Paper itself is at http://www.patent. gov.uk/about/consultations/eccopyright/index.htm and the Analysis of Responses and the Government Conclusions is at: http://www.patent.gov.uk/about/ consultations/responses/copydirect/index.htm.
been conducted
5 This is using the term “copyright” in the broad sense in which the term is used in the Act, so as to include all related rights except the rights of performers. From the perspective of most others in Europe the right that subsisted in cable programme services in the UK by virtue of section 7 of the Act, now repealed, would be a related right.
thoroughly
carefully and
6 [1997] FSR 604; [1997] EMLR 277 7 [2003] ECDR 297 8 Article 10 of the WIPO Performances and Phonograms Treaty, unlike Article 3 of the Directive, only confers the right in relation to performances fixed in phonograms. 9 Set out and discussed further below, in relation to “Injunctions against service providers”. 10 Although in Sony v Easyinternet Café the argument unsuccessfully advanced by the Defendants in relation to copying off the Internet also relied on the section 70 exception applying to the recording of a cable programme service, which will, under the Regulations, no longer be the case.
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