UK Finally Implements Controversial EU Copyright Directive

EU Directive 2001/29/EC on the harmonisation of certain aspects of copyright came into force in June 2001 and should have been implemented by all member states by 22nd December 2002. Only two member states met that deadline.

Earlier this month the Copyright and Related Rights Regulations, implementing the Directive, were finally laid before the UK Parliament. They will come into force almost immediately, on 31st October 2003, and make numerous detailed amendments to the Copyright Designs and Patents Act 1988.

Background

The delay has been caused by a ferocious battle between rights owners and user associations, in which the UK Patent Office received over 300 responses during the consultation process.

The 1988 Act already provided similar protection to many of the obligations contained in the Directive, and many of the changes made by the Regulations are therefore technical. However there are also some very significant changes being made. We highlight some of them below.

New communication right and a new criminal offence

The right of the copyright holder to restrict the broadcasting of the work (under section 20 of the 1988 Act) has been redefined to encompass a wider range of activities. From 31st October it will be an infringement to communicate the work to the public by ìelectronic transmissionî. This encompasses making the work available over the internet, which in some circumstances will fall within a new definition of broadcasting and in others will come under the more general right against electronic transmission defined in the Directive. Whether there are loopholes in the Regulations remains to be seen, but they are a hybrid provision and difficulties of interpretation may arise.

The Regulations have also introduced a new criminal offence - knowingly infringing copyright in a work by ìcommunicating the work to the public in the course of a business, or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyrightî. Rights organisations will welcome this new criminal offence as a valuable weapon against persons using websites to share or freely distribute copyright material. No doubt the degree of prejudice required will soon be defined in claims brought by rights holders now that the taboo against suing individual users has been abandoned.

ìFair dealingî restricted

The fair dealing exception for the purpose of ìresearch or private studyî has been amended to make it clear...