Britain's implementation of the Copyright Directive
This article was last updated in April
2005.
The Copyright Directive – properly called Directive 2001/29/EC
on the harmonisation of copyright and related rights in the
information society – was due to be implemented by all EU Member
States by 22nd December 2002. Few Member States met the deadline.
In the UK, the Patent Office conducted a wide-ranging consultation
before finalising the implementing Regulations, which came into
force on 31st October 2003, amending the Copyright, Designs and
Patents Act 1988.
A progress report published after the consultation admitted that
"a few controversial aspects are continuing to generate debate,"
which explains the delay in implementation. FAST contributed to the
consultation, saying it welcomed the implementation of the
Directive and "the greater clarity this will bring to lawful use of
software."
This article outlines the main provisions of the Directive, and
identifies areas that caused the biggest difficulties for the
legislators. It also seeks to highlight some of the practical
consequences of the Directive, and areas that might be exploited in
the future by copyright owners.
Technological Protection Measures (TPMs)
The Government admitted that TPMs "prompted more comment than
any other aspect of the Directive." The Directive says Member
States are to provide adequate legal protection against the
circumvention of any effective technological measures. TPMs include
those designed "to prevent or restrict acts ... which are not
authorised by the rightholder"; the Regulations state that
technological measures include "any device, design or component
which is designed ... to protect a copyright work." One example of
a TPM is the use of encryption; another is the production of CDs
that cannot be copied (or even played) on PCs.
Responses to the consultation on TPMs came from both
rightholders concerned that the Regulations did not go far enough,
and individuals concerned that the protection of TPMs could lead to
anti-competitive practices and affect data privacy.
The Directive does not include computer programs among those
works able to benefit from the legislation covering TPMs. FAST
commented in its response that the Government should make it clear
that "products are not deprived of protection ... merely because
they include computer programs". As it is, the Government has
retained an old provision of the Copyright, Designs and Patents Act
which already gave some protection for TPMs in relation to computer
programs.
The new provisions give an incentive to rightholders to employ
and design new methods for protecting their rights against copying
and other uses, in the knowledge that there are statutory penalties
for those attempting to circumvent them. Rightholders will be able
to sue individuals bypassing TPMs and, importantly, those making
and distributing equipment used to circumvent TPMs. Additionally,
the latter category of infringer may be criminally liable.
Electronic Rights Management Information (RMI)
Perhaps surprisingly, RMI caused less controversy. Rightholders
have begun to protect their works by using unique codes to
identify, track and assist with the use of works, so that anyone
attempting to breach copyright can be traced. For instance, a piece
of software may be sold to a customer. If that customer then makes
the software available over a peer-to-peer file sharing network,
the rightholder can identify the customer potentially in breach of
copyright.
The Regulations provide for rightholders to be given a civil
remedy against anyone who "knowingly and without authority removes
or alters electronic rights management information." Some
organisations called for criminal sanctions to be added to the
protection of RMI, but the Government has decided not to introduce
these at this stage.
Reproduction Rights
The Regulations just give a minor tweak to the existing law on
reproduction rights to avoid ambiguity. The Directive provides for
the reproduction rights of performers to include transient and
incidental copying, so the Copyright, Designs and Patents Act has
been extended to cover this, to avoid the implication that
performers' rights, by contrast with those of authors, do not
extend to such copying.
Communication Rights
The changes in this area again reflect the development of new
technologies, which make the old rights covering 'broadcasting' and
'inclusion in a cable programme service' out of date. Under the
Directive, authors must be granted an exclusive right to control
electronic communication of a copyrighted work to the public. The
Regulations introduce such a right, though the Government has been
careful to exclude 'static' web pages from the definition of a
broadcast. The changes are designed to prevent unauthorised
exploitation of copyrighted works using, for instance, internet
services; and to provide industries with the opportunity to exploit
the possibilities of legitimate distribution made available by the
internet.
Exceptions – the 'internet' exception
This brings about a limited exception to the restriction on
reproducing a copyrighted work to allow works to be transmitted
over the internet (where reproduction by intermediaries, such as
ISPs, is necessary to allow transmission). This has already been
provided for in the UK under the E-Commerce Regulations. These
allow for copying where the ISP is acting as a mere conduit, and
where the ISP is merely caching or hosting.
Exceptions - research
Previously, the defence of fair dealing for research and private
study was available to anyone otherwise in breach of copyright.
Under the Directive (and the Regulations), this must be restricted
to research carried out for a non-commercial purpose provided that
it is accompanied by a sufficient acknowledgement. In addition, the
Directive states that "rightholders should receive fair
compensation to compensate them adequately for the use made of
their protected works or other subject-matter". It is likely that
this fair compensation will be collected through organisations such
as the Copyright Licensing Agency.
Conclusion
The majority of the provisions are aimed at giving protection to
embattled copyright holders, who are striving to find new ways to
protect their assets. They provide the legal support for the
practical measures that industries have had to find to protect
their copyrighted assets, and open up certain new avenues for
exploitation by right holders.
