EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society Consultation Paper on Implementation of the Directive in the United Kingdom
Copyright Directorate
The Patent Office Department of Trade and Industry
7 August 2002
Contents
- Summary
- Impact of the Directive
- Annex A - Draft Amendments
- Annex B - EU Directive 2001/29/EC
- Annex C - Draft Regulatory Impact Assessment
- Annex D - The Consultation Criteria
Summary
I Background
European Community Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society ("the Directive") entered into force on 22 June 2001[1]. Article 13 requires the Directive to be transposed into the national laws of EU Member States before 22 December 2002. The Directive harmonises rights in certain key areas, primarily to meet the challenge of the Internet and e-commerce, and digital technology in general. It also deals with exceptions to these rights and legal protection for technological aspects of rights management systems.
II Purpose of the consultation
This consultation concerns the precise way that UK law in this area should be amended in order to comply with the Directive. The starting point is the Copyright, Designs and Patents Act 1988, as amended by the Broadcasting Acts of 1990 and 1996 and by secondary legislation[2] implementing earlier EC Directives in the copyright and related rights field ("the Act"). As with the earlier Directives, it is proposed to amend current legislation by means of Regulations under section 2(2) of the European Communities Act 1972 (ECA). Draft amendments to the Act covering the main changes to be made are attached as Annex A. A number of consequential, transitional and other minor amendments have yet to be finalised, but Annex A also includes information on the location and effect of certain consequential changes. Following consultation, a Statutory Instrument will be made and laid before Parliament, comprising Regulations addressing all of the amendments to be made to the Act.
1 Official Journal of the European Communities: L 167/10;
22.6.2001
2 SI 1992 No.3233, SI 1995 No.3297, SI 1996 No.2967, SI 1997
No.3032 and SI 2000 No.1175.
The purpose of this consultation is to make interested parties aware of the more significant proposed changes to UK copyright law at the earliest possible time, and to ensure that implementation of the Directive in the United Kingdom will be both complete in respect of the mandatory provisions, and also appropriate as regards the options and flexibilities present in the Directive. The text of the Directive and a draft Regulatory Impact Assessment (RIA) are also attached (Annexes B and C respectively). The section in this consultation document on "Impact of the Directive" constitutes draft guidance for businesses on compliance with the proposed changes to copyright law which will be refined as final decisions are taken.
III Comments
Comments are invited on the draft amendments to UK law. These should be sent to:
Teresa Arnesen
Copyright Directorate The Patent Office Harmsworth House 13-15 Bouverie Street London EC4Y 8DP
E-mail: copyright@patent.gov.uk
Fax: 020 7596 6526/6527
Tel: 020 7596 6513
The consultation will remain open until 31 October 2002 but those responding are requested to submit their views as soon as possible during the consultation period. In view of the tight deadline for transposing the Directive, there will be no possibility of extending this consultation. Responses will be analysed and a summary published. It would be helpful if respondents could bear in mind that this consultation is not about whether the requirements of the Directive itself are appropriate. The Directive has been agreed, is in force, and cannot be changed at this time. Interested parties should also be aware of what is actually possible under the ECA - essentially, we have needed to limit changes to the Act to those necessary to comply with obligations under the Directive, and matters arising from, or related to, these. While the main focus of this consultation should be the draft amendments to the Act as presented, we appreciate that some respondents may also wish to use this opportunity to comment on possibilities which the Directive allows but which are not being taken up in UK implementation. Such comments are also welcome but it would help our analysis of responses if these could be clearly labelled as being for future consideration. Where other such changes to copyright law are, or at any time become, desirable, we will consult all interested parties before making final decisions on how to proceed. Comments are also invited on the draft RIA (Annex C). We would be particularly grateful for any information or analysis, especially statistical data or predictions, that interested parties can supply to update the likely economic impact of the changes required to comply with the Directive. We are especially keen to receive responses from small and medium businesses in this respect. Please note that in the interests of Open Government, responses to this consultation may be disclosed to the public. But if you wish your contribution (or any part of it) to remain confidential, please make this clear in your reply. This document has been prepared in accordance with the Government Code of Practice on Written Consultations. Annex D sets out the requirements of this Code
IV Who is being consulted
This paper is directed primarily at organisations representing (1) creators and owners of copyright and related rights, (2) consumers and users of works protected by such rights, and (3) intermediaries including on-line service and network providers, manufacturers of hardware, content distributors and developers of rights management systems. All of these stakeholders have been fully involved in the negotiations leading up to adoption of the Directive. However, in view of the universal impact of digital technology and the relevance of copyright in all walks of life, this paper is being made widely available and responses are invited from all concerned. Lists of those being consulted directly accompany the draft RIA.
V Copies of this paper
Further copies of the consultation document may be obtained from the Patent Office address above. An electronic version is available on the Patent Office web site at www.patent.gov.uk under 'Copyright Notices'. Impact of the Directive
I Introduction
EC Directive 2001/29/EC harmonises the basic rights relevant to uses of copyright material in the information society and e-commerce, namely the rights of reproduction (copying) and communication to the public (electronic transmission, including digital broadcasting and "on- demand" services). It also limits the type and scope of permitted exceptions to these rights and provides legal protection for technological measures used to safeguard rights and identify and manage copyright material (such as copy protection systems and digital watermarks). The text of the Directive is reproduced in Annex B.
II Summary of the main changes to UK law
Current UK law generally provides a sound basis to meet the challenges of new technology, and amendments to the Act are generally technical in nature. They are not concerned with major new rights or extensions to protection, which was the case with earlier EC Directives. The main adjustments necessary to comply with the Directive concern (a) introduction of performers' exclusive rights (as opposed to the current remuneration rights) to control "on- demand" transmissions of recordings of their performances (as required by Article 3.2), (b) amendments to comply with the regime of compulsory and permitted exceptions in Article 5, (c) amendments to cater for the more comprehensive legal protection for technological systems in Article 6, (d) introduction of new provisions for the protection of electronic rights management information set out in Article 7, and (e) improvements to sanctions and remedies (as required by Article 8).
III The main changes in detail
Only the more significant changes to UK law are detailed here; for example, many of the necessary consequential changes are not described. Annex A sets out the main changes to the Act which are envisaged, and does so in order of the articles of the Directive to which they relate. (In contrast, in the Statutory Instrument which will be prepared in due course, amendments will basically appear in the order of the sections in the Act which are principally affected.) Where, as indicated below, no action is considered necessary in respect of a particular article of the Directive, that article is not referred to in Annex A.
Article 1
This article indicates the overall subject matter of the Directive. Recital 20 is relevant. No specific action is needed as a direct result of the provision but it does have implications for the transposition of other articles. For example, Article 6 of the Directive cannot apply to computer programs, since Article 7.1(c) of Directive 91/250/EEC[3] deals with technological protection devices and Article 11 of the present Directive does not change this. Similarly, Article 5.1 of the Directive does not apply to computer programs or databases, since Directives 91/250/EEC and 96/9/EC[4] specifically provide lists of exceptions to rights in respect of such works, and Article 11 of the Directive is silent on this matter also. On the other hand, since no earlier Directive deals specifically with the so-called "making available" right in Article 3 of the Directive, this right will apply also to computer programs and databases.
Article 2
This article concerns the reproduction right. Recital 21 is relevant. Although it is considered that existing UK law is consistent with this provision, an amendment to s.182A of the Act is proposed (part 1 of Annex A) to make explicit that Part II of the Act (and specifically s.182A) covers temporary copies of recordings of performances. The text of the new provision in Part II follows that of s.17(6) in Part I of the Act. The proposed amendment is seen as a logical consequence of needing to include Article 5.1 in both Parts I and II of the Act (see below). 3 Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs. 4 Directive 96/9/EC of 11 March 1996 on the legal protection of databases.
Article 3
Article 3.1 requires authors (in the Berne Convention sense) to be granted an exclusive right to control any (electronic) communication to the public. This broad right must include, specifically, an interactive "making available to the public" (ie "on-demand") right. Other right holders, identified in Article 3.2, are also to be granted the same on-demand right. Communication to the public rights more generally, for these latter right holders, are covered by Article 8 of Directive 92/100/EEC[5]. Recitals 23-27 of the present Directive are relevant.The draft amendments comprise a redefinition in Part I of the Act of the right to include a work in a broadcast or cable programme service as a "communication to the public" right (ie by electronic transmission) that includes both broadcasting and inclusion in an interactive on- demand service (paragraphs 2.1-2.6 of Annex A). Existing section 6 has been amended to redefine "broadcast" (and "broadcasting") as relating to transmissions by any electronic means (whether wire or wireless) which are not of an interactive nature. It therefore assimilates the non-interactive aspects of existing section 7 of the Act. That section has been deleted since the rights it serves to define continue to be covered by the revised section 20. It is not felt that there is a need to protect a "cable programme" as a species of copyright work other than where this is a "broadcast" as redefined, since any material included in an interactive cable service would seem already to be protected under other headings, ie as a literary, artistic, dramatic or musical work, sound recording or film. Part II of the Act is amended by introduction of an exclusive on-demand right for performers (paragraphs 2.7-2.8 of Annex A) with existing protection (s.182D) being revised so as to continue to provide for remuneration in respect of all other communication to the public. These changes require a number of consequential amendments and some of the more important ones are indicated in paragraph 2.9 of Annex A. 5 Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. No specific action has been taken as a result of paragraph 3 of Article 3, which is considered to be present simply for avoidance of any doubt on the matter to which it refers. Exhaustion of rights is a concept normally only associated with the right to control distribution of tangible copies of protected works.
Article 4
Article 4.1 requires that authors (in the Berne Convention sense) are granted exclusive rights to control any form of distribution to the public, by sale or otherwise, of the original or copies (tangible) of their works. The second paragraph of the article confirms that the distribution right is exhausted only by the first sale or other transfer of ownership in the Community made with the consent of the right holder, ie Article 4.2 confirms that Community (European Economic Area) exhaustion of the right applies. Recital 28 is relevant. It is considered that no change to the Act is needed to comply with Article 4.
Article 5.1
This is the only mandatory provision in Article 5, which as a whole deals with exceptions and limitations to rights. Article 5.1 requires Member States to provide an exception to the reproduction right for certain temporary acts which are transient or incidental. Recital 33 is relevant. As existing UK law has no such exception, it is proposed to include provisions corresponding to Article 5.1 in both Parts I and II of the Act (part 3 of Annex A).
Article 5.2-5.4
Articles 5.2 and 5.3 set out a number of categories of optional exceptions to rights. Article 5.2 deals with exceptions to the reproduction right (Article 2), and Article 5.3 concerns exceptions which are permitted for both the reproduction right and the communication to the public right (Article 3). Article 5.4 allows exceptions also to be made to the distribution right (Article 4) in certain cases where an exception to the reproduction right is made in national law. Recitals 31, 32 and 34-43 are relevant.While there is no obligation on Member States to provide for any of these exceptions in national law, it is not permitted to continue with existing exceptions, or introduce new exceptions, which fall outside the scope of any one or more of the categories defined in Articles 5.2 and 5.3. (An important point that was borne in mind during preparation of the draft amendments to the Act is the lack of hierarchy between the various optional exceptions and limitations.) The Government's basic approach during negotiations on the Directive was always to seek to maintain existing UK exceptions[6] as far as possible. It is now proposed only to amend these where required to comply with the Directive[7]. Part 4 of Annex A comprises the main changes considered to be necessary. Many of the amendments in this area should be self-explanatory, but the following observations on certain specific existing exceptions are provided to assist understanding of the proposed changes: section 29 the "research" element in respect of all works has been limited to "non- commercial" purposes in line with Article 5.3(a) and source acknowledgment for Berne works added; the "private study" aspect (Article 5.2(b)) which is considered to be inherently non-commercial and not such as to require compensation (see recital 35), is dealt with separately; section 30(1) the condition of "lawfully made available to the public" present in Article 5.3(d) has been added; paragraph 2(1) of Schedule 2 to the Act has been similarly amended;
6 Chapter III of Part I of the 1988 Act (Acts Permitted in Relation
to Copyright Works); Schedule 2 of the Act (Rights in
Performances; Permitted Acts).
7 New exceptions may be justified from time to time though and in
this respect the Government has recently supported a private
member's Bill (The Copyright (Visually Impaired Persons) Bill)
that introduces exceptions to copyright for the benefit of
visually impaired people. This is permitted by Article 5.3(b).
section 32 the proposed changes to ss.32(1), 32(2) and 32(3) reflect
the requirements of Article 5.3(a) that limits illustration for teaching
to the extent justified by the non-commercial purpose to be achieved; in
addition, to maintain existing flexibility in this area, a
"fair-dealing" element has been included based on Article 5.3(d);
paragraph 4 of Schedule 2 has been similarly amended;
section 35 the proposed source indication for broadcasts only is
considered to meet the requirements of Article 5.3(a) because other
works will have been acknowledged by the broadcaster;
section 36 the proposed amendment reflects the source indication
requirement of Article 5.3(a) for Berne works;
sections 38-43 an approach similar to that on s.29 has been taken for
ss.38, 39 and 43, with corresponding amendments to Regulations 4 and 7
of associated Statutory Instrument (SI) 1989/1212[8]; ss.41 and 42, on the
other hand, are considered to fall within Article 5.2(c) and changes to
SI 1989/1212 (Regulations 5(2)(c) and 6(2)(d) therein) have been made to
reflect the "no economic or commercial advantage" requirement;
section 61 it is considered that this exception falls partly under
Article 5.2(c), and also partly under Articles 5.2(b) and 5.3(a) as
regards copying and supplying to the public; an amendment to meet the
"non-commercial purpose" requirement of Article 5.3(a) has been made to
s.61(4)(a) and to Regulation 3(2)(a) of the associated SI 1989/1012[9];
section 182A in the light of Article 5.2(b) (as limited by Article 5.5)
the present broad
8 The Copyright (Librarians and Archivists) (Copying of Copyright
Material) Regulations 1989.
9 The Copyright (Recordings of Folksongs for Archives) (Designated
Bodies) Order 1989.
exception, which extends to any copy for private and domestic use, has
been replaced by provisions in Schedule 2 corresponding to sections 70
and 71.
Article 5.5
This provision confirms that all exceptions are subject to the so-called
"three-step" test found in international treaties (see, for example,
Article 13 of The TRIPS Agreement[10] and Article 10 of the WIPO Copyright
Treaty). Recital 44 is relevant. It is not proposed to introduce the
test as such into UK law as a general constraint on exceptions; rather,
it is proposed to continue with the existing practice in the Act of
using the test as a standard in framing exceptions to rights. It follows
that the exceptions amended as proposed, as well as other unamended
exceptions to copyright and related rights in the Act, are considered to
comply with the three-step test.
In this respect, amendments to some exceptions in Parts I and II of the
Act need to be considered because, although relating to rights not
harmonised by the Directive, Article 11.1(b) of the Directive does
impose (for the first time) the " three-step" test on the areas covered
by these exceptions. The following observations are relevant:
section 67 this exception currently permits not-for-profit bodies to
raise money by playing sound recordings in public; it is considered that
the exception should only apply where the proceeds of any admission
charge do no more than cover costs; paragraph 15 of Schedule 2 has been
similarly amended;
section 72 in essence, this exception currently provides that, where
broadcasts are seen or heard in public by non-paying audiences, there is
no liability to pay royalties to broadcasters or producers of sound
recordings or films contained in broadcasts. Difficult and sensitive
issues underlie the exception, and we would welcome views on the best
way forward. The Government accepts that action
10 Agreement on Trade-Related Aspects of Intellectual Property
Rights (1994) WTO
is needed because of the three-step test. We have been lobbied to remove
sound recordings completely from the exception, but do not consider this
necessary to meet the test, and, for this reason, such a course of
action would also not seem possible under the legislative route chosen
for implementing the Directive. Moreover, both commercial organisations
and not-for-profit bodies which would then have to pay an additional[11]
royalty to record producers (and indirectly to performers to whom a
similar exception currently applies) can be expected to be concerned
about this approach. The Government therefore considers that narrowing
the exception rather than discontinuing its application to sound
recordings may be a fairer solution. In particular, this could be done
by providing that those using broadcasts in a commercial environment to
provide a musical ambience will have to pay a royalty to the producers
of sound recordings (and performers). We would also need to consider to
what extent the exception should remain in place for other beneficiaries
of section 72 such as not-for-profit bodies. In addition, the Directive
specifically permits exceptions in connection with the demonstration or
repair of equipment (Article 5.3(l)), and some current beneficiaries of
section 72 may of course be selling televisions, radios or other
reception equipment. However, it may be that there are alternative
solutions, such as a combination of a legislative route and industry led
initiatives to rationalise public performance royalties in this area. In
addressing this issue, the Government believes that it may be
appropriate to explore a solution to the perceived anomaly that the
exception currently applies to sound recordings but not musical (or
literary and dramatic) works.
11 This would be additional to the royalty for allowing a broadcast
to be seen or heard in a public place for any reason that must
currently be paid to the Performing Right Society (PRS) for
distribution to owners of copyright in the music itself. The
additional royalty would be paid to Phonographic Performance
Limited (PPL) for distribution to producers of sound recordings
(and also to performers who are entitled to equitable
remuneration from producers where sound recordings are played in
public).
Article 6
Article 6 as a whole deals with the provision of legal protection for
technological measures used by right holders to protect their works
against unauthorised reproduction and other copyright infringements. As
noted above under Article 1, Article 6 cannot apply to computer programs
and Article 7.1(c) of Directive 91/250/EEC continues to have effect. The
existing provision in the Act (s.296 as amended by SI 1992 No.3233) is
therefore retained in respect of computer programs only (paragraph 5.1
of Annex A).
Article 8 and recitals 47-54 are relevant to the transposition of this
article for works other than computer programs. Careful consideration
has been given as to what constitutes "adequate protection" and
"appropriate sanctions and remedies" for each act outlawed by Article 6.
Article 6.1
This provision requires Member States to protect against the deliberate
circumvention without authority of "effective technological measures"
(defined in Article 6.3). The only existing provision in this area
(s.296 of the Act) does not touch upon the actual act of circumvention,
and it is proposed to introduce a new civil remedy against a person
carrying out such an unauthorised act (paragraph 5.1 of Annex A).
Article 6.2
This provision is complementary to Article 6.1. It requires Member
States to protect against the manufacture of, or dealing in, illegal
circumvention devices and services. Article 6.2 spells out in some
detail three differing situations that contribute to establishing the
illegality of the devices or services. Recital 49 is particularly
relevant here. The draft amendments propose a civil remedy against a
person carrying out an unauthorised act set out in any of subparagraphs
(a), (b) and (c) of Article 6.2. (paragraph 5.1 of Annex A). Criminal
sanctions are also proposed for this area, but have been drafted so as
to be both transparent and targeted since it would be entirely unfair to
leave any doubt in this respect (paragraph 5.1 of Annex
A). They have also been drafted to be consistent with existing copyright
offences given the parallel work relating to UK intellectual property
criminal offences concerning making and dealing in illegal material[12].
Article 6.3
This provision provides a comprehensive definition of "effective
technological measures" and includes the concept of "without authority"
implicit in the term "circumvention" used in Articles 6.1 and 6.2. This
definition explains the purpose of the measures to be protected and
makes clear that the way they function is not limited to
copy-protection. The draft amendments include such a definition
(paragraph 5.1 of Annex A).
Recital 48 is relevant to Article 6.3 as it adds to the understanding of
the expression "effective technological measures" by exemplifying
aspects of "normal operation", such as reasonable limitations on the
technological measures to be protected. The wording of the recital is
considered to be implicit in the definition as proposed in the draft
amendments and also closely connected with the "safeguard" set out in
Article 6.4 (see below).
Article 6.4
Article 6.4 as a whole covers 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 law
which are permitted by Article 5 of the Directive.
The first sub-paragraph of Article 6.4 is effectively a safeguard
requiring Member States to act appropriately to ensure balance in this
matter (but only as regards exceptions falling within Articles 5.2(a),
5.2(c), 5.2(d), 5.2(e), 5.3(a), 5.3(b), and 5.3(e)). A similar
possibility for Member States' action (ie an optional provision) in the
second sub-paragraph concerns the private copying exception of Article
5.2(b) but here right owners retain control over the
12 The Copyright, etc and Trade Marks (Offences and Enforcement) Act
2002 harmonises some of the copyright and trade mark criminal
remedies.
number of copies allowed. Both the requirement and the option for Member
States to act appropriately (a) only apply to the act of circumvention
in Article 6.1 (ie do not apply to the prohibition of illegal devices
and services in Article 6.2) and (b) do not apply where works are made
available on-demand to users. Recitals 51-53 are relevant.
Finally, Article 6.4 makes clear that action by Member States is only
possible where voluntary measures taken by right holders (including
agreements between them and other parties) are not in place. Taking all
these factors into account, as well as discussions with the European
Commission and other Member States, it is proposed to give an
administrative power to the Secretary of State to act in this area, as
and when required (paragraph 5.2 of Annex A).
Article 7
Article 7 requires Member States to provide legal protection for
electronic rights management information (RMI) used by right holders to
identify, track and assist with utilisation of works. Article 7.1
identifies the acts to be prohibited, including the conditions that must
apply for such acts to be considered unlawful. Article 7.2 defines RMI
and adds that the latter must be associated with the work in question.
Recitals 54-57 are relevant. This is an entirely new area for UK
copyright law and a civil remedy following closely the wording of the
article is proposed (part 6 of Annex A).
Article 8
This article is largely based on corresponding enforcement provisions in
the TRIPS Agreement. Article 8.1 requires that Member States should
provide appropriate sanctions and remedies, which should also be
effective, proportionate and dissuasive. Articles 8.2 and 8.3 expand on
the remedies that should be available for right holders in national law,
8.2 referring specifically to Article 6.2. Recitals 58 and 59 are
relevant, the latter making clear that the conditions and modalities
relating to injunctions are for Member States to determine. Recital 16
states that the Directive is without prejudice to Directive 2000/31/EC
(the e-commerce Directive[13]) which deals with the liability of Internet
service providers in a horizontal manner.
We have considered the offences and remedies in the Act as part of this
transposition, particularly with on-line piracy in mind. A new offence
covering communicating works to the public is proposed in Part I of the
Act (paragraph 7.1 of Annex A). A similar change will be made in Part
II. There is no equivalent change to the secondary infringements in Part
I because communicating a work to the public without the authorisation
of the copyright owner will be a primary infringement (see Article 3).
However, it will be made clear that those who can benefit from the new
temporary copy exception (see Article 5.1) are not caught by the
secondary infringement in section 24(2) concerning transmission of a
work by a telecommunications system (paragraph 7.3 of Annex A).
All the new offences, including those relating to Article 6, will
involve a test of mens rea (or knowledge) as it is not intended to
criminalise those people who inadvertently do something illegal. All the
new offences attract the maximum penalty permitted for offences created
using the legislative route chosen for implementation of the Directive.
We are also considering some concerns about the evidential burden for
the prosecutor with respect to the existing copyright offences. Any
changes must be compatible with human rights law and may be constrained
by the legislative route chosen for implementation of this Directive,
but we would welcome information about difficulties that have been
encountered and suggestions about possible changes.
Regarding Article 8.3, it is already possible under UK law to seek
injunctions against intermediaries. It is also possible to notify an
intermediary of an injunction served on an infringer so that the
intermediary is liable for contempt of court proceedings if he aids and
abets an infringer. It is considered that this meets the requirements of
Article 8.3.
13 Directive 2000/31/EC of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce,
in the Internal Market.
Article 9
This article confirms that the other provisions in the Directive are
without prejudice to other related areas of law. No specific
implementation is necessary, but this article permits us to retain
existing provisions dealing with overlaps with other laws.
Article 10
Under Article 10.1, the Directive's provisions will apply to all works
and performances still in protection on 22 December 2002 (the due date
for implementation) as well as to works created and performances given
after that date. This will be reflected in the transitional provisions.
Article 10.2 provides that the Directive is without prejudice to (a)
acts concluded or (b) rights acquired before 22 December 2002. It is
envisaged that transitional provisions in the implementing regulations
will provide that the legislative changes neither affect any agreement
made before commencement of the regulations, nor affect anything done
under such an agreement after commencement.
Article 11
Article 11.1 amends earlier Directive 92/100/EEC; it does not of itself
require transposition. However, the change to Article 10 of Directive
92/100/EEC has been taken into account and the effect on certain
exceptions has already been discussed above.
Article 11.2 amends the present EU term of protection for sound
recordings (set by Article 3.2 of Directive 93/98/EC). The draft
amendment in part 8 of Annex A therefore brings UK law (s.13A(2)(b) of
the Act) into line with this provision. It is envisaged that there will
be transitional provisions addressing matters such as copyright
ownership and the standing of agreements in relation to any extended
terms of protection arising from this amendment.
ANNEX A
DRAFT AMENDMENTS TO THE 1988 ACT COVERING THE MAIN
CHANGES PROPOSED TO IMPLEMENT DIRECTIVE 2001/29/EC
1 Amendments relating to Article 2 of the Directive Section 182A
(Consent of performer required for copying of recording) For the
avoidance of doubt, the following new subsection would be added:
182A "(1A) Making a copy includes making one which is
transient or is incidental to some other use of the
recording."
2 Amendments relating to Article 3 of the Directive
2.1 Section 16 (The acts restricted by copyright in a work)
Paragraph (d) of subsection (1) would be amended to replace the
present restricted act of broadcasting or inclusion in a cable
programme service by the following:
16(1) "(d) to communicate the work to the public (see
section 20);"
2.2 Section 20
This section would be reworded as follows:
"20.--(1) The communication to the public of the work is
an act restricted by the copyright in--
(a) a literary, dramatic, musical or artistic
work,
(b) a sound recording or film, or
(c) a broadcast.
(2) References in this Part to communication to the
public are to communication to the public by electronic
transmission, and in relation to a work include--
(a) the broadcasting of the work;
(b) inclusion of the work in an on-demand
service or other interactive service.
(3) In this Part, "on-demand service" means an
interactive service for making a work available to the
public by electronic transmission in such a way that
members of the public may access the work from a place
and at a time individually chosen by them."
2.3 Section 6 (Broadcasts)
Subsection (1) would be reworded, and a new subsection (1A)
would be added, as follows:
"6.--(1) In this Part a "broadcast" means a transmission
by electronic means of visual images, sounds or other
information which--
(a) is transmitted for simultaneous reception by
members of the public and is capable of being
lawfully received by them, or
(b) is transmitted for presentation to members
of the public; and which is not excepted by
subsection (1A), and references to broadcasting
shall be construed accordingly.
(1A) Any transmission included in an interactive service
which operates in such a way that members of the public
may at their individual request access a transmission
from its commencement at a time they select or
determine, is excepted from the definition of a
"broadcast"."
[Subsections (2) and (3) would not be amended]
Subsection (4) would be amended by inserting the words "by
wireless telegraphy" in line 1 so as to read:
"(4) For the purposes of this Part, the place from which
a broadcast by wireless telegraphy is made is the place
where, -----" [remainder unchanged]
[Subsections (4A) and (5) would not be amended]
Subsection (6) would be amended by deleting the words "or in a
cable programme" at the end so as to read:
"(6) Copyright does not subsist in a broadcast which
infringes, or to the extent that it infringes, the
copyright in another broadcast."
2.4 Section 7 (Cable programmes)
This section would be deleted.
2.5 Section 1(1) (Descriptions of work in which copyright subsists)
Paragraph (b) of this subsection would be amended by deleting
the reference to "cable programmes" so as to read:
1(1) "(b) sound recordings, films or broadcasts, and"
2.6 Section 9(2)(c) (Authorship of work: cable programmes)
This provision would also be deleted.
2.7 Section 182D (Right to remuneration for exploitation of sound
recording)
Subsection (1) would be reworded as follows (other subsections
would not be amended):
"182D.--Where a commercially published sound recording
of the whole or any substantial part of a qualifying
performance--
(a) is played in public, or
(b) is communicated to the public otherwise than
by inclusion in an on- demand service,
the performer is entitled to equitable remuneration from
the owner of the copyright in the sound recording."
[Note: the expressions "communication to the public" and
"on-demand service" would have the same meaning as in section
20.]
2.8 New section
The following new section would be added:
"Consent required for inclusion of recording in an
on-demand service
182E. A performer's rights are infringed by a person
who, without his consent, includes a recording of the
whole or any substantial part of a qualifying
performance in an on- demand service."
2.9 Consequential amendments
2.9.1 The main changes to the Act as proposed above in order to
implement Article 3 would also necessitate a considerable number
of consequential amendments to other provisions of the Act. A
full analysis to determine all of the consequential amendments
required has yet to be completed, as has drafting of these
amendments. Broadly speaking, however, it is envisaged that
consequential amendments on the following lines would be
appropriate.
(a) To delete references to a `cable programme' as a species of
copyright work, and reword accordingly. For example, in the
following provisions of the Act:
s.14 s.31(3) s.70 s.180
s.17(4) s.32(2) s.71 s.182(1)(c)
s.19 s.34(2) s.72
s.30(3) s.35(1) s.74
s.31(1) s.58(2) s.75
(b) To replace some references to the acts of `broadcasting or
inclusion in a cable programme service' by appropriate
references to the act of `communication to the public'. For
example, in the following provisions of the Act:
s.12(5) s.51(2) s.80 s.187(1)
s.13A(3) s.58(1) s.84(3) s.191(3)
s.13B(6) s.59(2) s.85(1)
s.18A(3) s.62(3) s.182C(3)
s.31(2) s.77 s.183
(c) To replace certain other references to the acts of
`broadcasting or inclusion in a cable programme service' by a
reference to the act of `broadcasting' only. For example, in
the following provisions:
s.14 s.135A s.135E
s.62(2) s.135B s.135H
s.68 s.135C s.182(1)(b)
2.9.2 Some other consequential amendments would be more complex. In
particular, s.73 would require revision so as to relate to
re-transmission of wireless broadcasts by cable.
2.9.3 Where there are provisions related to sections specifically
mentioned above (in Schedule 2 to the Act or elsewhere) these
would be amended in similar fashion.
2.9.4 Some of the consequential amendments referred to above are
already foreshadowed elsewhere in Annex A, where relevant
provisions of the Act are also being amended for other reasons,
eg in relation to Article 5.
3 Amendments relating to Article 5.1 of the Directive
3.1 The following new section would be added in Part I of the Act:
"Making of temporary copies
31A. Copyright in a literary work, other than a
computer program or a database, or in a dramatic,
musical or artistic work, the typographical arrangement
of a published edition, a sound recording or a film, is
not infringed by the making of a temporary copy which is
transient or incidental, which is an integral and
essential part of a technological process and the sole
purpose of which is to enable--
(a) a transmission of the work in a network
between third parties by an intermediary; or
(b) a lawful use of the work; and which has no
independent economic significance."
3.2 The following new paragraph would be added in Schedule 2 of the
Act:
"Making of temporary copies
3A. The rights conferred by Part II are not infringed
by the making of a temporary copy of a recording of a
performance which is transient or incidental, which is
an integral and essential part of a technological
process and the sole purpose of which is to enable--
(a) a transmission of the recording in a network
between third parties by an intermediary; or
(b) a lawful use of the recording; and which has
no independent economic significance." 22
4 Amendments relating to Articles 5.2 - 5.5
4.1 Section 29 (Research and private study)
Subsection (1) would be reworded as follows:
"29.--(1) Fair dealing with a literary, dramatic,
musical or artistic work for the purposes of research
for a non-commercial purpose does not infringe any
copyright in the work provided that it is accompanied by
a sufficient acknowledgement."
Subsection (1A) would be deleted, and the following new
subsections would be added:
"(1B) No acknowledgement is required in connection with
fair dealing for the purposes mentioned in subsection
(1) where this would be impossible for reasons of
practicality or otherwise.
(1C) Fair dealing with a literary, dramatic, musical or
artistic work for the purposes of private study does not
infringe any copyright in the work."
Subsection (2) would be reworded as follows:
"(2) Fair dealing with the typographical arrangement of
a published edition for the purposes of research or
private study does not infringe any copyright in the
arrangement."
[Subsections (3) and (4) would not be amended]
Subsection (5) would be deleted.
4.2 Section 30 (Criticism, review and news reporting) Sch.2, para.2
4.2.1 Subsection (1) of s.30 would be amended by inserting additional
wording after "acknowledgement" at the end, and adding a new
subsection (1A), as follows:
"30.--(1) Fair dealing with a work for the purpose of
criticism or review, of that or another work or of a
performance of a work, does not infringe any copyright
in the work provided that it is accompanied by a
sufficient acknowledgement and provided that the work
has been made available to the public.
(1A) For the purposes of subsection (1) a work has been
made available to the public if it has been made
available by any means, including--
(a) the issue of copies to the public;
(b) making the work available by means of an
electronic retrieval system;
(c) the rental or lending of copies of the work
to the public;
(d) the performance, exhibition, playing or
showing of the work in public;
(e) the communication to the public of the work;
but in determining generally for the purposes of that
subsection whether a work has been made available to the
public no account shall be taken of any unauthorised
act."
[Subsection (2) would not be amended]
Subsection (3) would be amended as follows:
"(3) No acknowledgement is required in connection with
the reporting of current events by means of a sound
recording, film or broadcast where this would be
impossible for reasons of practicality or otherwise."
4.2.2 Paragraph 2 of Schedule 2 would be amended as follows:
"2.--(1) Fair dealing with a performance or recording
for the purpose of criticism or review, of that or
another performance or recording, or of a work, does not
infringe any of the rights conferred by Part II provided
that the performance or recording has been made
available to the public.
(1A) Fair dealing with a performance or recording for
the purpose of reporting current events does not
infringe any of the rights conferred by Part II."
[Sub-paragraph (2) would not be amended]
4.3 Section 32 (Things done for purposes of instruction or
examination) Sch.2, para.4
4.3.1 Subsections (1)-(3) of section 32 would be reworded, and new
subsections (2A)-(2C) and (3A) would be added, as follows:
"32.--(1) Copyright in a literary, dramatic, musical or
artistic work is not infringed by its being copied in
the course of instruction or of preparation for
instruction, provided the copying--
(a) is done by a person giving or receiving
instruction,
(b) is not done by means of a reprographic
process, and
(c) is accompanied by a sufficient
acknowledgement, and provided that the condition
in subsection (2A) is met.
(2) Copyright in a sound recording, film or broadcast is
not infringed by its being copied by making a film or
film sound-track in the course of instruction, or of
preparation for instruction, in the making of films or
film sound-tracks, provided the copying--
(a) is done by a person giving or receiving
instruction, and
(b) is accompanied by a sufficient
acknowledgement, and provided that the condition
in subsection (2A) is met.
(2A) The condition referred to in subsections (1) and
(2) is that the instruction--
(a) is provided by an educational establishment,
or
(b) if it is not provided by such an
establishment, is for a non-commercial purpose.
(2B) Copyright in a literary, dramatic, musical or
artistic work which has been made available to the
public is not infringed by its being copied in the
course of instruction or of preparation for instruction,
provided the copying--
(a) is fair dealing with the work,
(b) is done by a person giving or receiving
instruction,
(c) is not done by means of a reprographic
process, and
(d) is accompanied by a sufficient
acknowledgement.
(2C) The provisions of section 30(1A) (works made
available to the public) apply for the purpose of
subsection (2B) as they apply for the purpose of section
30(1).
(3) Copyright is not infringed by anything done for the
purposes of an examination by way of setting the
questions, communicating the questions to the candidates
or answering the questions, provided that the questions
are accompanied by a sufficient acknowledgement.
(3A) No acknowledgement is required in connection with
copying for the purposes mentioned in subsections (1),
(2) or (2B), or in connection with anything done for the
purposes mentioned in subsection (3), where this would
be impossible for reasons of practicality or otherwise.
[Subsections (4) and (5) would not be amended]
4.3.2 Sub-paragraph (1) of paragraph 4 of Schedule 2 would be amended,
and a new sub- paragraph (1A) added, as follows:
"4.--(1) The rights conferred by Part II are not
infringed by the copying of a recording of a performance
in the course of instruction, or of preparation for
instruction, in the making of films or film
sound-tracks, provided the copying is done by a person
giving or receiving instruction and provided that the
condition in sub-paragraph (1A) is met.
(1A) The condition referred to in sub-paragraph (1) is
that the instruction--
(a) is provided by an educational
establishment, or
(b) if it is not provided by such an
establishment, is for a non-commercial
purpose."
[Sub-paragraphs (2) and (3) would not be amended]
4.4 Section 35 (Recording of broadcasts by educational
establishments) Sch.2, para.6
4.4.1 Subsection (1) of section 35 would be amended by deleting the
references to a "cable programme", and adding further wording at
the end, so as to read as follows:
"35.--(1) A recording of a broadcast, or a copy of such
a recording, may be made by or on behalf of an
educational establishment for the educational purposes
of that establishment without thereby infringing the
copyright in the broadcast, or in any work included in
it, provided that it is accompanied by a sufficient
acknowledgement of the broadcast."
[Subsections (2) & (3) would not be amended]
4.4.2 Sub-paragraph (1) of paragraph 6 of Schedule 2 would be amended
by deleting the reference to a "cable programme", and adding a
new sub-paragraph (1A), as follows:
"6.--(1) A recording of a broadcast, or a copy of such a
recording, may be made by or on behalf of an educational
establishment for the educational purposes of that
establishment without thereby infringing any of the
rights conferred by Part II in relation to any
performance or recording included in it.
(1A) This paragraph does not apply if or to the extent
that there is a licensing scheme certified for the
purposes of this paragraph under section 143 providing
for the grant of licences."
[Sub-paragraphs (2) and (3) would not be amended]
4.5 Section 36 (Reprographic copying by educational establishments)
Subsection (1) would be amended, and new subsections (1A) and
(1B) added, as follows:
"36.--(1) Reprographic copies of passages from published
literary, dramatic or musical works may, to the extent
permitted by this section, be made by or on behalf of an
educational establishment for the purposes of
instruction without infringing any copyright in the
work, provided that they are accompanied by a sufficient
acknowledgement.
(1A) No acknowledgement is required in connection with
the making of copies for the purposes mentioned in
subsection (1) where this would be impossible for
reasons of practicality or otherwise.
(1B) Reprographic copies of passages from published
editions may, to the extent permitted by this section,
be made by or on behalf of an educational establishment
for the purposes of instruction without infringing any
copyright in the typographical arrangement of the
edition."
[Subsections (2) & (3) would not be amended]
Subsection (4) would be amended by deletion of the words
"literary, dramatic or musical" after "published", so as to read
as follows:
"(4) The terms of a licence granted to an educational
establishment authorising the reprographic copying for
the purposes of instruction of passages from published
works are of no effect so far as they -----" [remainder
unchanged]
[Subsection (5) would not be amended]
4.6 Section 38 (Libraries and archives)
Section 39
Section 43
SI 1989 No. 1212
4.6.1 Subsection (1) of section 38 would not be amended, but in line
with the proposed amendment to s.29(1), subsection (2)(a) would
be amended as follows:
38 "(2) The prescribed conditions shall include the
following--
(a) that copies are supplied only to persons
satisfying the librarian that they require them
for the purposes of--
(i) research for a non-commercial
purpose, or
(ii) private study,
and will not use them for any other purpose;
[(b) & (c) would be unchanged]
4.6.2 Subsection (2)(a) of section 39 would be similarly amended:
39 "(2) The prescribed conditions shall include the
following--
(a) that copies are supplied only to persons
satisfying the librarian that they require them
for the purposes of--
(i) research for a non-commercial purpose, or
(ii) private study,
and will not use them for any other purpose;
[(b) & (c) would be unchanged]
4.6.3 Subsection (3)(a) of section 43 would be similarly amended, and
the words "not less than" (the cost---) in subsection (3)(c)
would be replaced by the words "equivalent to but not
exceeding", as follows:
43 "(3) The prescribed conditions shall include the
following--
(a) that copies are supplied only to persons
satisfying the librarian or archivist that they
require them for the purposes of--
(i) research for a non-commercial
purpose, or
(ii) private study,
and will not use them for any other purpose;
(b) that no person is furnished with more than
one copy of the same material; and
(c) that persons to whom copies are supplied
are required to pay for them a sum equivalent to
but not exceeding the cost (including a
contribution to the general expenses of the
library or archive) attributable to their
production.
4.6.4 It is also envisaged that the following amendments would be made
to Statutory Instrument (SI) 1989 No. 1212:
(a) Regulations 4(2)(a)(i) and 7(2)(a)(i) would be
amended to refer to "research for a non- commercial
purpose", as would Forms A & B in Schedule 2 of the SI
and,
(b) Regulations 5(2)(c), 6(2)(d) and 7(2)(c) would be
amended to refer to a sum "equivalent to but not
exceeding" the cost attributable to production of a
copy.
4.7 Section 61 (Recordings of folksongs)
SI 1989 No.1012
4.7.1 Subsection (4) of section 61 would be amended as follows:
61 "(4) The prescribed conditions shall include the
following--
(a) that copies are only supplied to persons
satisfying the archivist that they require them
for the purposes of--
(i) research for a non-commercial
purpose, or
(ii) private study, and will not use
them for any other purpose, and
[remainder unchanged]
4.7.2 It is also envisaged that Article 3(2) of Statutory Instrument
(SI) 1989 No. 1012 would be amended to refer to "research for a
non-commercial purpose".
4.8 Section 67 (Playing of sound recordings for purposes of club,
society &c) Sch.2, para.15
4.8.1 Subsection (2)(b) of section 67 would be reworded as follows
(subsections (1) and (2)(a) would be unchanged):
"67.--(1) It is not an infringement of the copyright in
a sound recording to play it as part of the activities
of, or for the benefit of, a club, society or other
organisation if the following conditions are met.
(2) The conditions are--
(a) that the organisation is not established or
conducted for profit and its main objects are
charitable or are otherwise concerned with the
advancement of religion, education or social
welfare, and
(b) that any charge for admission to an event or
a place at which or where the recording is to be
heard does not go beyond what is necessary to
cover the cost to the organisation of holding
that event or the operating costs of the
organisation in relation to that place."
4.8.2 Sub-paragraph (2)(b) of paragraph 15 of Schedule 2 would be
amended in the same manner as Section 67(2)(b).
4.9 Section 182 Section 182A Section 186 (Rights of performer as
regards recording of live performances and copying of
recordings: rights of persons with recording rights as regards
recording of performances)
4.9.1 Subsection (2) of section 182, which currently provides that the
rights of a performer are not infringed by the making of a
recording of a live performance "for private and domestic use",
would be deleted.
4.9.2 Subsection (1) of section 182A would be amended by deletion of
the words "otherwise than for his private and domestic use" so
as to read as follows:
182A "(1) A performer's rights are infringed by a
person who, without his consent, makes a copy of a
recording of the whole or any substantial part of a
qualifying performance."
4.9.3 A similar amendment to that in section 182A(1) would be made to
section 186(1) so that it would read as follows:
"186.--(1) A person infringes the rights of a person
having recording rights in relation to a performance
who, without his consent or that of the performer, makes
a recording of the whole or any substantial part of the
performance."
4.9.4 The following new paragraphs would be added to Schedule 2 of the
Act.
"17A.--(1) The making for private and domestic use of a
recording of a broadcast solely for the purpose of
enabling it to be viewed or listened to at a more
convenient time does not infringe any right conferred by
Part II in relation to a performance or recording
included in the broadcast.
(2) Expressions used in this paragraph have the same
meaning as in section 70.
17B.--(1) The making for private and domestic use of a
photograph of the whole or part of an image forming part
of a television broadcast, or a copy of such photograph,
does not infringe any right conferred by Part II in
relation to a performance or recording included in the
broadcast.
(2) Expressions used in this paragraph have the same
meaning as in section 71."
4.10 Schedule 2, paragraph 20
This paragraph would be amended by deletion of the references to
`cable programmes' in sub- paragraph (1) , and addition of a new
sub-paragraph (1A), as follows:
"20.--(1) A designated body may, for the purpose of
providing people who are deaf or hard of hearing, or
physically or mentally handicapped in other ways, with
copies which are sub-titled or otherwise modified for
their special needs, make recordings of television
broadcasts without infringing any right conferred by
Part II in relation to a performance or recording
included in the broadcast.
(1A) This paragraph does not apply if, or to the extent
that, there is a licensing scheme certified for the
purposes of this paragraph under section 143 providing
for the grant of licences.
[Sub-paragraph (2) would not be amended]
5 Amendments relating to Article 6 of the Directive
5.1 Articles 6.1-6.3
Section 296 of the Act would be reworded so as to apply to
computer programs only, and new sections 296ZA-296ZD would be
added under a revised heading "circumvention of protection
measures", as follows:
"Circumvention of protection measures
Devices designed to circumvent copy-protection applied
to computer programs
296.--(1) This section applies where copies of a
computer program are issued to the public, by or with
the licence of the copyright owner, in an electronic
form which is copy- protected.
(2) The person issuing the copies to the public has the
same rights against a person who, knowing or having
reason to believe that it will be used to make
infringing copies--
(a) makes, imports, sells or lets for hire,
offers or exposes for sale or hire, or
advertises for sale or hire, or possesses in the
course of a business any device or means
specifically designed or adapted to circumvent
the form of copy-protection employed, or
(b) publishes information intended to enable or
assist persons to circumvent that form of
copy-protection, as a copyright owner has in
respect of an infringement of copyright.
(3) Further, he has the same rights under section 99 or
100 (delivery up or seizure of certain articles) in
relation to any such device or means which a person has
in his possession, custody or control with the intention
that it should be used to make infringing copies of the
computer program, as a copyright owner has in relation
to an infringing copy.
(4) References in this section to copy-protection
include any device or means intended to prevent or
restrict copying of a computer program or to impair the
quality of copies made.
[Subsections (5) and (6) would not be amended]
Circumvention of technological measures
296ZA. (1) This section applies where--
(a) copies of a copyright work other than a
computer program are issued or communicated to
the public, by or with the licence of the
copyright owner, in a form where effective
technological measures have been applied; and
(b) a person (A) does anything which circumvents
those measures knowing, or having reason to
believe, that is the effect of what he is doing.
(2) The person issuing or communicating the copies to
the public has the same rights against (A) as a
copyright owner has in respect of an infringement of
copyright.
(3) The copyright owner, if he is not the person
issuing or communicating the copies, also has the same
rights against (A) as he has in respect of an
infringement of copyright.
(4) The rights in subsection (2) are concurrent with
those in subsection (3) and sections 101 and 102 apply
to an action brought under this section except that
references to an exclusive licensee shall be construed
as including a person other than an exclusive licensee
who issues or communicates to the public copies with the
consent of the copyright owner.
(5) The following provisions apply in relation to
proceedings under this section as in relation to
proceedings under Part I (copyright)--
(a) sections 104 to 106 of this Act
(presumptions as to certain matters relating to
copyright) and
(b) section 72 of the Supreme Court Act 1981,
section 15 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1985 and section 94A
of the Judicature (Northern Ireland) Act 1978
(withdrawal of privilege against self-
incrimination in certain proceedings relating to
intellectual property).
(6) Subsections (1) to (4) and (5)(b) and any other
provision of this Act as it has effect for the purposes
of those subsections apply with any necessary
adaptations, to rights in performances, publication
right and database right.
(7) The provisions of Regulation 22 (presumptions
relevant to database right) of the Copyright and Rights
in Databases Regulations 1997 (SI 1997 No. 3032) apply
in proceedings brought by virtue of this section in
relation to database right.
Devices and services designed to circumvent technological measures
296ZB. (1) A person commits an offence if he--
(a) makes for sale or hire, or
(b) imports otherwise than for his private and
domestic use, or
(c) in the course of a business--
(i) sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(iii) advertises for sale or hire, or
(iv) possesses, or
(v) distributes, or
(d) distributes otherwise than in the course of
a business to such an extent as to affect
prejudicially the copyright owner any device,
product or component which is primarily
designed, produced, or adapted for the purpose
of enabling or facilitating the circumvention of
effective technological measures.
(2) A person commits an offence if he provides,
promotes, advertises or markets a service in the course
of a business, or otherwise than in the course of a
business to such an extent as to affect prejudicially
the copyright owner, the purpose of which is to enable
or facilitate the circumvention of effective
technological measures.
(3) A person guilty of an offence under subsections (1)
or (2) is liable--
(a) on summary conviction, to imprisonment for a
term not exceeding three months, or to a fine
not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment
for a term not exceeding two years, or to a
fine, or to both.
(4) It is a defence to any prosecution for an offence
under this section for the defendant to prove that he
did not know, and had no reasonable ground for
believing, that--
(a) the device, product or component; or
(b) the services provided enabled or facilitated
the circumvention of effective technological
measures.
[Search warrant and forfeiture provisions would also be provided
analogous to those being provided in relation to offences in
section 297A by the Copyright, etc and Trade Marks (Offences and
Enforcement) Act 2002]
Rights and remedies in respect of devices and services designed
to circumvent technological measures
296ZC. (1) This section applies where--
(a) copies of a copyright work other than a
computer program are issued or communicated to
the public, by or with the licence of the
copyright owner, in a form where effective
technological measures have been applied; and
(b) a person (B)--
(i) makes for sale or hire, or
(ii) imports otherwise than for his
private and domestic use, or
(ii) in the course of business sells or
lets for hire, offers or exposes for
sale or hire, advertises for sale or
hire, possesses or distributes, or
(iv) distributes otherwise than in the
course of a business to such an extent
as to affect prejudicially the copyright
owner any device, product or component
which has only a limited commercially
significant purpose or use other than to
circumvent, or is primarily designed,
produced or adapted for the purpose of
enabling or facilitating the
circumvention of those measures; or
(c) a person (C) provides, promotes, advertises
or markets a service, product, device or
component--
(i) in the course of a business, or
(ii) otherwise than in the course of a business
to such an extent as to affect prejudicially the
copyright owner, the purpose of which is to
enable or facilitate the circumvention of those
measures.
(2) The person issuing or communicating the copies to
the public has the same rights against (B) and (C) as a
copyright owner has in respect of an infringement of
copyright.
(3) The copyright owner, if he is not the person
issuing or communicating the copies, also has the same
rights against (B) and (C) as he has in respect of an
infringement of copyright.
(4) The rights in subsection (2) are concurrent with
those in subsection (3) and sections 101 and 102 apply
to an action brought under this section except that
references to an exclusive licensee shall be construed
as including a person other than an exclusive licensee
who issues or communicates to the public copies with the
consent of the copyright owner.
(5) Further, the copyright owner and person issuing or
communicating copies to the public have the same rights
under section 99 or 100 (delivery up or seizure of
certain articles) in relation to any such device,
product or component which a person has in his
possession, custody or control with the intention that
it should be used to circumvent effective technological
measures, as a copyright owner has in relation to any
infringing copy.
(6) The following provisions apply in relation to
proceedings under this section as in relation to
proceedings under Part I (copyright)--
(a) sections 104 to 106 of this Act
(presumptions as to certain matters relating to
copyright), and
(b) section 72 of the Supreme Court Act 1981,
section 15 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1985 and section 94A
of the Judicature (Northern Ireland) Act 1978
(withdrawal of privilege against self-
incrimination in certain proceedings relating to
intellectual property) and section 114 of this
Act applies, with the necessary modifications,
in relation to the disposal of anything
delivered up or seized by virtue of subsection
(5).
(7) In section 97(1) (innocent infringement of
copyright) as it applies to proceedings for infringement
of the rights conferred by this section, the reference
to the defendant not knowing or having reason to believe
that copyright subsisted in the work shall be construed
as a reference to his not knowing or having reason to
believe that his acts enabled or facilitated an
infringement of copyright.
(8) Sub-sections (1) to (5), (6)(b) and (7) and any
other provision of this Act as it has effect for the
purposes of those subsections apply, with any necessary
adaptations, to rights in performances, publication
right and database right.
(9) The provisions of Regulation 22 (presumptions
relevant to database right) of the Copyright and Rights
in Databases Regulations 1997 (SI 1997 No. 3032) apply
in proceedings brought by virtue of this section in
relation to database right.
Interpretation of sections 296ZA to 296ZC
296ZD.--(1) In sections 296ZA to 296ZC, "technological
measures" are any technology, device or component which
is intended, in the normal course of its operation, to
protect a copyright work other than a computer program.
(2) Such measures are "effective" if the use of the work
is controlled by the copyright owner through--
(a) an access control or protection process such
as encryption, scrambling or other
transformation of the work, or
(b) a copy control mechanism, which achieves the
intended protection.
(3) In this section, references to protection of a work
are to the prevention or restriction of infringing acts
in relation to the work.
(4) Expressions used in sections 296ZA to 296ZC which
are defined for the purposes of Part I of this Act
(copyright) have the same meaning as in that Part."
5.2 Article 6.4
The following new section would be added at an appropriate place
in the Act, probably in Part VII:
"Remedy where effective technological measures prevent
permitted acts
XXX.-- (1) Where the application of any effective
technological measure to a copyright work other than a
computer program prevents a person from benefiting
directly from [reference will be made here either to
articles 5.2(a), 2(b), 2(c), 2(d), 2(e), 3(a), 3(b) or
3(e) of the Directive or to provisions of the Act
covering the exceptions permitted under these articles]
in relation to that work then that person may issue a
notice of complaint to the Secretary of State.
(2) The Secretary of State may, following receipt of a
notice of complaint, give to the owner of that copyright
work or an exclusive licensee such directions as appear
to the Secretary of State to be requisite or expedient
for the purpose of--
(a) establishing whether any voluntary measure
or agreement relevant to the copyright work the
subject of the complaint subsists; or
(b) (in the event it is established there is no
subsisting voluntary measure or agreement)
enabling the complainant to benefit from [those
articles or sections] referred to in subsection
(1) to which the complaint relates.
(3) The Secretary of State may also give directions--
(a) as to the form and manner in which a notice
of complaint in subsection (1) may be delivered
to him;
(b) as to the form and manner in which evidence
of any voluntary measure or agreement may be
delivered to him; and
(c) generally as to the procedure to be followed
in relation to a complaint made under this
section and shall publish directions given under
this subsection in such manner as in his opinion
will secure adequate publicity for them.
(4) It shall be the duty of any person to whom a
direction is given under this section to give effect to
that direction.
(5) The obligation to comply with a direction given
under subsection (2)(b) is a duty owed to the
complainant; and a breach of the duty is actionable
accordingly (subject to the defences and other incidents
applying to actions for breach of statutory duty).
(6) Any direction under this section may be varied or
revoked by a subsequent direction under this section.
(7) Any direction given under this section shall be in
writing.
(8) This section does not apply--
(a) to copyright works made available by an
on-demand service; or
(b) where the complainant has obtained the
copyright work the subject of the complaint
unlawfully.
(9) In this section--
"voluntary measure or agreement" means any measure taken
voluntarily by a copyright owner or exclusive licensee
or any agreement between a copyright owner or exclusive
licensee and another party the purpose of which is to
enable the complainant (or persons of a class to which
the complainant belongs) to benefit from [those articles
or sections] referred to in subsection (1) to which the
complaint relates; 35 "effective technological measure"
has the same meaning as in section 296ZD; "exclusive
licensee" means a licensee under an exclusive licence
and "exclusive licence" has the same meaning as in
section 92; and "in writing" has the same meaning as in
Part I of this Act.
(10) Subsections (1) to (8) apply, with any necessary
adaptations, to rights in performances, publication
right and database right.
6 Amendments relating to Article 7 of the Directive
The following new provision would be added:
" Rights management information
Electronic Rights Management Information
296ZE.--(1) This section applies where a person (D),
knowingly and without authority, removes or alters
electronic rights management information which--
(a) is associated with a copy of a copyright work, or
(b) appears in connection with the communication to the
public of a copyright work, and where (D) knows, or has
reason to believe, that by so doing he is inducing,
enabling, facilitating or concealing an infringement of
copyright.
(2) This section also applies where a person (E),
knowingly and without authority, distributes, imports
for distribution or communicates to the public copies of
a copyright work from which electronic rights management
information--
(a) associated with the copies, or
(b) appearing in connection with the
communication to the public of the work, has
been removed or altered without authority and
where (E) knows, or has reason to believe, that
by so doing he is inducing, enabling,
facilitating or concealing an infringement of
copyright.
(3) A person issuing or communicating the copies to the
public has the same rights against (D) and (E) as a
copyright owner has in respect of an infringement of
copyright.
(4) The copyright owner, if he is not the person
issuing or communicating the copies, also has the same
rights against (D) and (E) as he has in respect of an
infringement of copyright.
(5) The rights in subsection (3) are concurrent with
those in subsection (4) and sections 101 and 102 apply
to an action brought under this section except that
references to an exclusive licensee shall be construed
as including a person other than an exclusive licensee
who issues or communicates to the public copies with the
consent of the copyright owner.
(6) The following provisions apply in relation to
proceedings under this section as in relation to
proceedings under Part I (copyright)--
(a) sections 104 to 106 of this Act
(presumptions as to certain matters relating to
copyright), and
(b) section 72 of the Supreme Court Act 1981,
section 15 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1985 and section 94A
of the Judicature (Northern Ireland) Act 1978
(withdrawal of privilege against self-
incrimination in certain proceedings relating to
intellectual property).
(7) Subsections (1) to (5) and (6)(b), and any other
provision of this Act as it has effect for the purposes
of those subsections, apply, with any necessary
adaptations, to rights in performances, publication
right and database right.
(8) The provisions of Regulation 22 (presumptions
relevant to database right) of the Copyright and Rights
in Databases Regulations 1997 (SI 1997 No. 3032) apply
in proceedings brought by virtue of this section in
relation to database right.
(9) Expressions used in this section which are defined
for the purposes of Part I of this Act (copyright) have
the same meaning as in that Part and "rights management
information" means any information provided by the
copyright owner which identifies the work, the author or
any other right holder, or information about the terms
and conditions of use of the work, and any numbers or
codes that represent such information.
7 Amendments relating to Article 8 of the Directive
7.1 Section 107 (Criminal liability for making or dealing with
infringing articles &c.)
The following new subsections would be added:
107 "(3A) A person who infringes copyright in a work by
communicating the work to the public--
(a) in the course of a business, or
(b) otherwise than in the course of a business
to such an extent as to affect prejudicially the
owner of the copyright, commits an offence if he
knew or had reason to believe that copyright in
the work would be infringed.
(4A) A person guilty of an offence under subsection (3A)
is liable--
(a) on summary conviction, to imprisonment for a
term not exceeding three months or a fine not
exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment
for a term not exceeding two years or a fine, or
both."
7.2 It is envisaged that some consequential amendments would also be
necessary, for example to add a reference to subsection 107(3A)
in section 109(1)(a) concerning search warrants.
7.3 For the avoidance of doubt, it would be made clear in section
24(2) that the secondary infringement set out therein is only
relevant in circumstances "otherwise than where section 31A
applies" (see 3.1 above for new section 31A).
7.4 It is envisaged that a similar new offence to that in section
107(3A) would also be provided in Part II of the Act applying
where a person infringes rights in that Part by communicating a
performance to the public.
8 Amendments relating to Article 11.2 of the Directive (Amendments
relating to Article 11.1 are presented in part 5 of this Annex)
8.1 Section 13A (Duration of copyright in sound recordings)
Subsection (2) would be replaced by the following (subsection
(1) would not be amended):
"(2) Copyright expires--
(a) at the end of the period of 50 years from the end of
the calendar year in which the recording is made, or
(b) if during that period the recording is published,
50 years from the end of the calendar year in which it
is first published, or
(c) 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, but in determining whether a sound recording
has been published, played in public or communicated to
the public, no account shall be taken of any
unauthorised act.
Subsection (3) would be deleted.
The references to subsection (3) in subsections (4) and (5)
would also be deleted, but those subsections would otherwise
remain unchanged.
8.2 It is possible that this amendment would result in an extension
of the term of protection of particular sound recordings in some
cases (although not revival of protection - see the second
paragraph of Article 11.2). It is therefore envisaged that
specific transitional provisions addressing ownership of any
extended copyrights, and the standing of existing licences and
agreements &c in relation to such copyrights, would need to be
provided, for example, along the lines of those in Regulations
18(1), 20 and 21 of Statutory Instrument (SI) 1995 No. 3297.
ANNEX B
DIRECTIVE 2001/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 22
MAY 2001 ON THE HARMONISATION OF CERTAIN ASPECTS OF COPYRIGHT AND
RELATED RIGHTS IN THE INFORMATION SOCIETY
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having
regard to the Treaty establishing the European Community, and in
particular Articles 47(2), 55 and 95 thereof, Having regard to the
proposal from the Commission(1), Having regard to the opinion of the
Economic and Social Committee(2), Acting in accordance with the
procedure laid down in Article 251 of the Treaty(3),
Whereas:
(1) The Treaty provides for the establishment of an internal market and
the institution of a system ensuring that competition in the internal
market is not distorted. Harmonisation of the laws of the Member States
on copyright and related rights contributes to the achievement of these
objectives.
(2) The European Council, meeting at Corfu on 24 and 25 June 1994,
stressed the need to create a general and flexible legal framework at
Community level in order to foster the development of the information
society in Europe. This requires, inter alia, the existence of an
internal market for new products and services. Important Community
legislation to ensure such a regulatory framework is already in place or
its adoption is well under way. Copyright and related rights play an
important role in this context as they protect and stimulate the
development and marketing of new products and services and the creation
and exploitation of their creative content.
(3) The proposed harmonisation will help to implement the four freedoms
of the internal market and relates to compliance with the fundamental
principles of law and especially of property, including intellectual
property, and freedom of expression and the public interest.
(4) A harmonised legal framework on copyright and related rights,
through increased legal certainty and while providing for a high level
of protection of intellectual property, will foster substantial
investment in creativity and innovation, including network
infrastructure, and lead in turn to growth and increased competitiveness
of European industry, both in the area of content provision and
information technology and more generally across a wide range of
industrial and cultural sectors. This will safeguard employment and
encourage new job creation.
(5) Technological development has multiplied and diversified the vectors
for creation, production and exploitation. While no new concepts for the
protection of intellectual property are needed, the current law on
copyright and related rights should be adapted and supplemented to
respond adequately to economic realities such as new forms of
exploitation.
(6) Without harmonisation at Community level, legislative activities at
national level which have already been initiated in a number of Member
States in order to respond to the technological challenges might result
in significant differences in protection and thereby in restrictions on
the free movement of services and products incorporating, or based on,
intellectual property, leading to a refragmentation of the internal
market and legislative inconsistency. The impact of such legislative
differences and uncertainties will become more significant with the
further development of the information society, which has already
greatly increased transborder exploitation of intellectual property.
This development will and should further increase. Significant legal
differences and uncertainties in protection may hinder economies of
scale for new products and services containing copyright and related
rights.
(7) The Community legal framework for the protection of copyright and
related rights must, therefore, also be adapted and supplemented as far
as is necessary for the smooth functioning of the internal market. To
that end, those national provisions on copyright and related rights
which vary considerably from one Member State to another or which cause
legal uncertainties hindering the smooth functioning of the internal
market and the proper development of the information society in Europe
should be adjusted, and inconsistent national responses to the
technological developments should be avoided, whilst differences not
adversely affecting the functioning of the internal market need not be
removed or prevented.
(8) The various social, societal and cultural implications of the
information society require that account be taken of the specific
features of the content of products and services.
(9) Any harmonisation of copyright and related rights must take as a
basis a high level of protection, since such rights are crucial to
intellectual creation. Their protection helps to ensure the maintenance
and development of creativity in the interests of authors, performers,
producers, consumers, culture, industry and the public at large.
Intellectual property has therefore been recognised as an integral part
of property.
(10) If authors or performers are to continue their creative and
artistic work, they have to receive an appropriate reward for the use of
their work, as must producers in order to be able to finance this work.
The investment required to produce products such as phonograms, films or
multimedia products, and services such as "on- demand" services, is
considerable. Adequate legal protection of intellectual property rights
is necessary in order to guarantee the availability of such a reward and
provide the opportunity for satisfactory returns on this investment.
(11) A rigorous, effective system for the protection of copyright and
related rights is one of the main ways of ensuring that European
cultural creativity and production receive the necessary resources and
of safeguarding the independence and dignity of artistic creators and
performers.
(12) Adequate protection of copyright works and subject-matter of
related rights is also of great importance from a cultural standpoint.
Article 151 of the Treaty requires the Community to take cultural
aspects into account in its action.
(13) A common search for, and consistent application at European level
of, technical measures to protect works and other subject-matter and to
provide the necessary information on rights are essential insofar as the
ultimate aim of these measures is to give effect to the principles and
guarantees laid down in law.
(14) This Directive should seek to promote learning and culture by
protecting works and other subject-matter while permitting exceptions or
limitations in the public interest for the purpose of education and
teaching.
(15) The Diplomatic Conference held under the auspices of the World
Intellectual Property Organisation (WIPO) in December 1996 led to the
adoption of two new Treaties, the "WIPO Copyright Treaty" and the "WIPO
Performances and Phonograms Treaty", dealing respectively with the
protection of authors and the protection of performers and phonogram
producers. Those Treaties update the international protection for
copyright and related rights significantly, not least with regard to the
so-called "digital agenda", and improve the means to fight piracy
world-wide. The Community and a majority of Member States have already
signed the Treaties and the process of making arrangements for the
ratification of the Treaties by the Community and the Member States is
under way. This Directive also serves to implement a number of the new
international obligations.
(16) Liability for activities in the network environment concerns not
only copyright and related rights but also other areas, such as
defamation, misleading advertising, or infringement of trademarks, and
is addressed horizontally in Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the
internal market ("Directive on electronic commerce")(4), which clarifies
and harmonises various legal issues relating to information society
services including electronic commerce. This Directive should be
implemented within a timescale similar to that for the implementation of
the Directive on electronic commerce, since that Directive provides a
harmonised framework of principles and provisions relevant inter alia to
important parts of this Directive. This Directive is without prejudice
to provisions relating to liability in that Directive.
(17) It is necessary, especially in the light of the requirements
arising out of the digital environment, to ensure that collecting
societies achieve a higher level of rationalisation and transparency
with regard to compliance with competition rules.
(18) This Directive is without prejudice to the arrangements in the
Member States concerning the management of rights such as extended
collective licences.
(19) The moral rights of rightholders should be exercised according to
the legislation of the Member States and the provisions of the Berne
Convention for the Protection of Literary and Artistic Works, of the
WIPO Copyright Treaty and of the WIPO Performances and Phonograms
Treaty. Such moral rights remain outside the scope of this Directive.
(20) This Directive is based on principles and rules already laid down
in the Directives currently in force in this area, in particular
Directives 91/250/EEC(5), 92/100/EEC(6), 93/83/EEC(7), 93/98/EEC(8) and
96/9/EC(9), and it develops those principles and rules and places them
in the context of the information society. The provisions of this
Directive should be without prejudice to the provisions of those
Directives, unless otherwise provided in this Directive.
(21) This Directive should define the scope of the acts covered by the
reproduction right with regard to the different beneficiaries. This
should be done in conformity with the acquis communautaire. A broad
definition of these acts is needed to ensure legal certainty within the
internal market.
(22) The objective of proper support for the dissemination of culture
must not be achieved by sacrificing strict protection of rights or by
tolerating illegal forms of distribution of counterfeited or pirated
works.
(23) This Directive should harmonise further the author's right of
communication to the public. This right should be understood in a broad
sense covering all communication to the public not present at the place
where the communication originates. This right should cover any such
transmission or retransmission of a work to the public by wire or
wireless means, including broadcasting. This right should not cover any
other acts.
(24) The right to make available to the public subject-matter referred
to in Article 3(2) should be understood as covering all acts of making
available such subject-matter to members of the public not present at
the place where the act of making available originates, and as not
covering any other acts.
(25) The legal uncertainty regarding the nature and the level of
protection of acts of on-demand transmission of copyright works and
subject-matter protected by related rights over networks should be
overcome by providing for harmonised protection at Community level. It
should be made clear that all rightholders recognised by this Directive
should have an exclusive right to make available to the public copyright
works or any other subject- matter by way of interactive on-demand
transmissions. Such interactive on-demand transmissions are
characterised by the fact that members of the public may access them
from a place and at a time individually chosen by them.
(26) With regard to the making available in on-demand services by
broadcasters of their radio or television productions incorporating
music from commercial phonograms as an integral part thereof, collective
licensing arrangements are to be encouraged in order to facilitate the
clearance of the rights concerned.
(27) The mere provision of physical facilities for enabling or making a
communication does not in itself amount to communication within the
meaning of this Directive.
(28) Copyright protection under this Directive includes the exclusive
right to control distribution of the work incorporated in a tangible
article. The first sale in the Community of the original of a work or
copies thereof by the rightholder or with his consent exhausts the right
to control resale of that object in the Community. This right should not
be exhausted in respect of the original or of copies thereof sold by the
rightholder or with his consent outside the Community. Rental and
lending rights for authors have been established in Directive
92/100/EEC. The distribution right provided for in this Directive is
without prejudice to the provisions relating to the rental and lending
rights contained in Chapter I of that Directive.
(29) The question of exhaustion does not arise in the case of services
and on-line services in particular. This also applies with regard to a
material copy of a work or other subject-matter made by a user of such a
service with the consent of the rightholder. Therefore, the same applies
to rental and lending of the original and copies of works or other
subject-matter which are services by nature. Unlike CD-ROM or CD-I,
where the intellectual property is incorporated in a material medium,
namely an item of goods, every on-line service is in fact an act which
should be subject to authorisation where the copyright or related right
so provides.
(30) The rights referred to in this Directive may be transferred,
assigned or subject to the granting of contractual licences, without
prejudice to the relevant national legislation on copyright and related
rights.
(31) A fair balance of rights and interests between the different
categories of rightholders, as well as between the different categories
of rightholders and users of protected subject-matter must be
safeguarded. The existing exceptions and limitations to the rights as
set out by the Member States have to be reassessed in the light of the
new electronic environment. Existing differences in the exceptions and
limitations to certain restricted acts have direct negative effects on
the functioning of the internal market of copyright and related rights.
Such differences could well become more pronounced in view of the
further development of transborder exploitation of works and
cross-border activities. In order to ensure the proper functioning of
the internal market, such exceptions and limitations should be defined
more harmoniously. The degree of their harmonisation should be based on
their impact on the smooth functioning of the internal market.
(32) This Directive provides for an exhaustive enumeration of exceptions
and limitations to the reproduction right and the right of communication
to the public. Some exceptions or limitations only apply to the
reproduction right, where appropriate. This list takes due account of
the different legal traditions in Member States, while, at the same
time, aiming to ensure a functioning internal market. Member States
should arrive at a coherent application of these exceptions and
limitations, which will be assessed when reviewing implementing
legislation in the future.
(33) The exclusive right of reproduction should be subject to an
exception to allow certain acts of temporary reproduction, which are
transient or incidental reproductions, forming an integral and essential
part of a technological process and carried out for the sole purpose of
enabling either efficient transmission in a network between third
parties by an intermediary, or a lawful use of a work or other
subject-matter to be made. The acts of reproduction concerned should
have no separate economic value on their own. To the extent that they
meet these conditions, this exception should include acts which enable
browsing as well as acts of caching to take place, including those which
enable transmission systems to function efficiently, provided that the
intermediary does not modify the information and does not interfere with
the lawful use of technology, widely recognised and used by industry, to
obtain data on the use of the information. A use should be considered
lawful where it is authorised by the rightholder or not restricted by
law.
(34) Member States should be given the option of providing for certain
exceptions or limitations for cases such as educational and scientific
purposes, for the benefit of public institutions such as libraries and
archives, for purposes of news reporting, for quotations, for use by
people with disabilities, for public security uses and for uses in
administrative and judicial proceedings.
(35) In certain cases of exceptions or limitations, rightholders should
receive fair compensation to compensate them adequately for the use made
of their protected works or other subject-matter. When determining the
form, detailed arrangements and possible level of such fair
compensation, account should be taken of the particular circumstances of
each case. When evaluating these circumstances, a valuable criterion
would be the possible harm to the rightholders resulting from the act in
question. In cases where rightholders have already received payment in
some other form, for instance as part of a licence fee, no specific or
separate payment may be due. The level of fair compensation should take
full account of the degree of use of technological protection measures
referred to in this Directive. In certain situations where the prejudice
to the rightholder would be minimal, no obligation for payment may
arise.
(36) The Member States may provide for fair compensation for
rightholders also when applying the optional provisions on exceptions or
limitations which do not require such compensation.
(37) Existing national schemes on reprography, where they exist, do not
create major barriers to the internal market. Member States should be
allowed to provide for an exception or limitation in respect of
reprography.
(38) Member States should be allowed to provide for an exception or
limitation to the reproduction right for certain types of reproduction
of audio, visual and audio-visual material for private use, accompanied
by fair compensation. This may include the introduction or continuation
of remuneration schemes to compensate for the prejudice to rightholders.
Although differences between those remuneration schemes affect the
functioning of the internal market, those differences, with respect to
analogue private reproduction, should not have a significant impact on
the development of the information society. Digital private copying is
likely to be more widespread and have a greater economic impact. Due
account should therefore be taken of the differences between digital and
analogue private copying and a distinction should be made in certain
respects between them.
(39) When applying the exception or limitation on private copying,
Member States should take due account of technological and economic
developments, in particular with respect to digital private copying and
remuneration schemes, when effective technological protection measures
are available. Such exceptions or limitations should not inhibit the use
of technological measures or their enforcement against circumvention.
(40) Member States may provide for an exception or limitation for the
benefit of certain non-profit making establishments, such as publicly
accessible libraries and equivalent institutions, as well as archives.
However, this should be limited to certain special cases covered by the
reproduction right. Such an exception or limitation should not cover
uses made in the context of on-line delivery of protected works or other
subject-matter. This Directive should be without prejudice to the Member
States' option to derogate from the exclusive public lending right in
accordance with Article 5 of Directive 92/100/EEC. Therefore, specific
contracts or licences should be promoted which, without creating
imbalances, favour such establishments and the disseminative purposes
they serve.
(41) When applying the exception or limitation in respect of ephemeral
recordings made by broadcasting organisations it is understood that a
broadcaster's own facilities include those of a person acting on behalf
of and under the responsibility of the broadcasting organisation.
(42) When applying the exception or limitation for non-commercial
educational and scientific research purposes, including distance
learning, the non-commercial nature of the activity in question should
be determined by that activity as such. The organisational structure and
the means of funding of the establishment concerned are not the decisive
factors in this respect.
(43) It is in any case important for the Member States to adopt all
necessary measures to facilitate access to works by persons suffering
from a disability which constitutes an obstacle to the use of the works
themselves, and to pay particular attention to accessible formats.
(44) When applying the exceptions and limitations provided for in this
Directive, they should be exercised in accordance with international
obligations. Such exceptions and limitations may not be applied in a way
which prejudices the legitimate interests of the rightholder or which
conflicts with the normal exploitation of his work or other
subject-matter. The provision of such exceptions or limitations by
Member States should, in particular, duly reflect the increased economic
impact that such exceptions or limitations may have in the context of
the new electronic environment. Therefore, the scope of certain
exceptions or limitations may have to be even more limited when it comes
to certain new uses of copyright works and other subject-matter.
(45) The exceptions and limitations referred to in Article 5(2), (3) and
(4) should not, however, prevent the definition of contractual relations
designed to ensure fair compensation for the rightholders insofar as
permitted by national law.
(46) Recourse to mediation could help users and rightholders to settle
disputes. The Commission, in cooperation with the Member States within
the Contact Committee, should undertake a study to consider new legal
ways of settling disputes concerning copyright and related rights.
(47) Technological development will allow rightholders to make use of
technological measures designed to prevent or restrict acts not
authorised by the rightholders of any copyright, rights related to
copyright or the sui generis right in databases. The danger, however,
exists that illegal activities might be carried out in order to enable
or facilitate the circumvention of the technical protection provided by
these measures. In order to avoid fragmented legal approaches that could
potentially hinder the functioning of the internal market, there is a
need to provide for harmonised legal protection against circumvention of
effective technological measures and against provision of devices and
products or services to this effect.
(48) Such legal protection should be provided in respect of
technological measures that effectively restrict acts not authorised by
the rightholders of any copyright, rights related to copyright or the
sui generis right in databases without, however, preventing the normal
operation of electronic equipment and its technological development.
Such legal protection implies no obligation to design devices, products,
components or services to correspond to technological measures, so long
as such device, product, component or service does not otherwise fall
under the prohibition of Article 6. Such legal protection should respect
proportionality and should not prohibit those devices or activities
which have a commercially significant purpose or use other than to
circumvent the technical protection. In particular, this protection
should not hinder research into cryptography.
(49) The legal protection of technological measures is without prejudice
to the application of any national provisions which may prohibit the
private possession of devices, products or components for the
circumvention of technological measures.
(50) Such a harmonised legal protection does not affect the specific
provisions on protection provided for by Directive 91/250/EEC. In
particular, it should not apply to the protection of technological
measures used in connection with computer programs, which is exclusively
addressed in that Directive. It should neither inhibit nor prevent the
development or use of any means of circumventing a technological measure
that is necessary to enable acts to be undertaken in accordance with the
terms of Article 5(3) or Article 6 of Directive 91/250/EEC. Articles 5
and 6 of that Directive exclusively determine exceptions to the
exclusive rights applicable to computer programs.
(51) The legal protection of technological measures applies without
prejudice to public policy, as reflected in Article 5, or public
security. Member States should promote voluntary measures taken by
rightholders, including the conclusion and implementation of agreements
between rightholders and other parties concerned, to accommodate
achieving the objectives of certain exceptions or limitations provided
for in national law in accordance with this Directive. In the absence of
such voluntary measures or agreements within a reasonable period of
time, Member States should take appropriate measures to ensure that
rightholders provide beneficiaries of such exceptions or limitations
with appropriate means of benefiting from them, by modifying an
implemented technological measure or by other means. However, in order
to prevent abuse of such measures taken by rightholders, including
within the framework of agreements, or taken by a Member State, any
technological measures applied in implementation of such measures should
enjoy legal protection.
(52) When implementing an exception or limitation for private copying in
accordance with Article 5(2)(b), Member States should likewise promote
the use of voluntary measures to accommodate achieving the objectives of
such exception or limitation. If, within a reasonable period of time, no
such voluntary measures to make reproduction for private use possible
have been taken, Member States may take measures to enable beneficiaries
of the exception or limitation concerned to benefit from it. Voluntary
measures taken by rightholders, including agreements between
rightholders and other parties concerned, as well as measures taken by
Member States, do not prevent rightholders from using technological
measures which are consistent with the exceptions or limitations on
private copying in national law in accordance with Article 5(2)(b),
taking account of the condition of fair compensation under that
provision and the possible differentiation between various conditions of
use in accordance with Article 5(5), such as controlling the number of
reproductions. In order to prevent abuse of such measures, any
technological measures applied in their implementation should enjoy
legal protection.
(53) The protection of technological measures should ensure a secure
environment for the provision of interactive on-demand services, in such
a way that members of the public may access works or other subject-
matter from a place and at a time individually chosen by them. Where
such services are governed by contractual arrangements, the first and
second subparagraphs of Article 6(4) should not apply. Non-interactive
forms of online use should remain subject to those provisions.
(54) Important progress has been made in the international
standardisation of technical systems of identification of works and
protected subject-matter in digital format. In an increasingly networked
environment, differences between technological measures could lead to an
incompatibility of systems within the Community. Compatibility and
interoperability of the different systems should be encouraged. It would
be highly desirable to encourage the development of global systems.
(55) Technological development will facilitate the distribution of
works, notably on networks, and this will entail the need for
rightholders to identify better the work or other subject-matter, the
author or any other rightholder, and to provide information about the
terms and conditions of use of the work or other subject-matter in order
to render easier the management of rights attached to them. Rightholders
should be encouraged to use markings indicating, in addition to the
information referred to above, inter alia their authorisation when
putting works or other subject-matter on networks.
(56) There is, however, the danger that illegal activities might be
carried out in order to remove or alter the electronic
copyright-management information attached to it, or otherwise to
distribute, import for distribution, broadcast, communicate to the
public or make available to the public works or other protected
subject-matter from which such information has been removed without
authority. In order to avoid fragmented legal approaches that could
potentially hinder the functioning of the internal market, there is a
need to provide for harmonised legal protection against any of these
activities.
(57) Any such rights-management information systems referred to above
may, depending on their design, at the same time process personal data
about the consumption patterns of protected subject-matter by
individuals and allow for tracing of on-line behaviour. These technical
means, in their technical functions, should incorporate privacy
safeguards in accordance with Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and the free
movement of such data(10).
(58) Member States should provide for effective sanctions and remedies
for infringements of rights and obligations as set out in this
Directive. They should take all the measures necessary to ensure that
those sanctions and remedies are applied. The sanctions thus provided
for should be effective, proportionate and dissuasive and should include
the possibility of seeking damages and/or injunctive relief and, where
appropriate, of applying for seizure of infringing material.
(59) In the digital environment, in particular, the services of
intermediaries may increasingly be used by third parties for infringing
activities. In many cases such intermediaries are best placed to bring
such infringing activities to an end. Therefore, without prejudice to
any other sanctions and remedies available, rightholders should have the
possibility of applying for an injunction against an intermediary who
carries a third party's infringement of a protected work or other
subject-matter in a network. This possibility should be available even
where the acts carried out by the intermediary are exempted under
Article 5. The conditions and modalities relating to such injunctions
should be left to the national law of the Member States.
(60) The protection provided under this Directive should be without
prejudice to national or Community legal provisions in other areas, such
as industrial property, data protection, conditional access, access to
public documents, and the rule of media exploitation chronology, which
may affect the protection of copyright or related rights.
(61) In order to comply with the WIPO Performances and Phonograms
Treaty, Directives 92/100/EEC and 93/98/EEC should be amended, HAVE
ADOPTED THIS DIRECTIVE:
CHAPTER I - OBJECTIVE AND SCOPE
Article 1 (Scope)
1. This Directive concerns the legal protection of copyright and
related rights in the framework of the internal market, with
particular emphasis on the information society.
2. Except in the cases referred to in Article 11, this Directive
shall leave intact and shall in no way affect existing Community
provisions relating to:
(a) the legal protection of computer programs;
(b) rental right, lending right and certain rights
related to copyright in the field of intellectual
property;
(c) copyright and related rights applicable to
broadcasting of programmes by satellite and cable
retransmission;
(d) the term of protection of copyright and certain
related rights;
(e) the legal protection of databases.
Article 2 (Reproduction right)
Member States shall provide for the exclusive right to authorise
or prohibit direct or indirect, temporary or permanent
reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films,
in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of
their broadcasts, whether those broadcasts are
transmitted by wire or over the air, including by cable
or satellite.
Article 3 (Right of communication to the public of works and right of
making available to the public other subject-matter)
1. Member States shall provide authors with the exclusive right
to authorise or prohibit any communication to the public of
their works, by wire or wireless means, including the making
available to the public of their works in such a way that
members of the public may access them from a place and at a time
individually chosen by them.
2. Member States shall provide for the exclusive right to
authorise or prohibit the making available to the public, by
wire or wireless means, in such a way that members of the public
may access them from a place and at a time individually chosen
by them:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films,
of the original and copies of their films;
(d) for broadcasting organisations, of fixations of
their broadcasts, whether these broadcasts are
transmitted by wire or over the air, including by cable
or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be
exhausted by any act of communication to the public or making
available to the public as set out in this Article.
Article 4 (Distribution right)
1. Member States shall provide for authors, in respect of the
original of their works or of copies thereof, the exclusive
right to authorise or prohibit any form of distribution to the
public by sale or otherwise.
2. The distribution right shall not be exhausted within the
Community in respect of the original or copies of the work,
except where the first sale or other transfer of ownership in
the Community of that object is made by the rightholder or with
his consent.
Article 5 (Exceptions and limitations)
1. Temporary acts of reproduction referred to in Article 2,
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, shall be exempted from the reproduction
right provided for in Article 2.
2. Member States may provide for exceptions or limitations to
the reproduction right provided for in Article 2 in the
following cases:
(a) in respect of reproductions on paper or any similar
medium, effected by the use of any kind of photographic
technique or by some other process having similar
effects, with the exception of sheet music, provided
that the rightholders receive fair compensation;
(b) in respect of reproductions on any medium made by a
natural person for private use and for ends that are
neither directly nor indirectly commercial, on condition
that the rightholders receive fair compensation which
takes account of the application or non-application of
technological measures referred to in Article 6 to the
work or subject-matter concerned;
(c) in respect of specific acts of reproduction made by
publicly accessible libraries, educational
establishments or museums, or by archives, which are not
for direct or indirect economic or commercial advantage;
(d) in respect of ephemeral recordings of works made by
broadcasting organisations by means of their own
facilities and for their own broadcasts; the
preservation of these recordings in official archives
may, on the grounds of their exceptional documentary
character, be permitted;
(e) in respect of reproductions of broadcasts made by
social institutions pursuing non- commercial purposes,
such as hospitals or prisons, on condition that the
rightholders receive fair compensation.
3. Member States may provide for exceptions or limitations to
the rights provided for in Articles 2 and 3 in the following
cases:
(a) use for the sole purpose of illustration for
teaching or scientific research, as long as the source,
including the author's name, is indicated, unless this
turns out to be impossible and to the extent justified
by the non-commercial purpose to be achieved;
(b) uses, for the benefit of people with a disability,
which are directly related to the disability and of a
non-commercial nature, to the extent required by the
specific disability;
(c) reproduction by the press, communication to the
public or making available of published articles on
current economic, political or religious topics or of
broadcast works or other subject-matter of the same
character, in cases where such use is not expressly
reserved, and as long as the source, including the
author's name, is indicated, or use of works or other
subject- matter in connection with the reporting of
current events, to the extent justified by the
informatory purpose and as long as the source, including
the author's name, is indicated, unless this turns out
to be impossible;
(d) quotations for purposes such as criticism or review,
provided that they relate to a work or other
subject-matter which has already been lawfully made
available to the public, that, unless this turns out to
be impossible, the source, including the author's name,
is indicated, and that their use is in accordance with
fair practice, and to the extent required by the
specific purpose;
(e) use for the purposes of public security or to ensure
the proper performance or reporting of administrative,
parliamentary or judicial proceedings;
(f) use of political speeches as well as extracts of
public lectures or similar works or subject- matter to
the extent justified by the informatory purpose and
provided that the source, including the author's name,
is indicated, except where this turns out to be
impossible;
(g) use during religious celebrations or official
celebrations organised by a public authority;
(h) use of works, such as works of architecture or
sculpture, made to be located permanently in public
places;
(i) incidental inclusion of a work or other
subject-matter in other material;
(j) use for the purpose of advertising the public
exhibition or sale of artistic works, to the extent
necessary to promote the event, excluding any other
commercial use;
(k) use for the purpose of caricature, parody or
pastiche;
(l) use in connection with the demonstration or repair
of equipment;
(m) use of an artistic work in the form of a building or
a drawing or plan of a building for the purposes of
reconstructing the building;
(n) use by communication or making available, for the
purpose of research or private study, to individual
members of the public by dedicated terminals on the
premises of establishments referred to in paragraph 2(c)
of works and other subject-matter not subject to
purchase or licensing terms which are contained in their
collections;
(o) use in certain other cases of minor importance where
exceptions or limitations already exist under national
law, provided that they only concern analogue uses and
do not affect the free circulation of goods and services
within the Community, without prejudice to the other
exceptions and limitations contained in this Article.
4. Where the Member States may provide for an exception or
limitation to the right of reproduction pursuant to paragraphs 2
and 3, they may provide similarly for an exception or limitation
to the right of distribution as referred to in Article 4 to the
extent justified by the purpose of the authorised act of
reproduction.
5. The exceptions and limitations provided for in paragraphs 1,
2, 3 and 4 shall only be applied in certain special cases which
do not conflict with a normal exploitation of the work or other
subject- matter and do not unreasonably prejudice the legitimate
interests of the rightholder.
Article 6 (Obligations as to technological measures)
1. Member States shall provide adequate legal protection against
the circumvention of any effective technological measures, which
the person concerned carries out in the knowledge, or with
reasonable grounds to know, that he or she is pursuing that
objective.
2. Member States shall provide adequate legal protection against
the manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial
purposes of devices, products or components or the provision of
services which:
(a) are promoted, advertised or marketed for the purpose
of circumvention of, or
(b) have only a limited commercially significant purpose
or use other than to circumvent, or
(c) are primarily designed, produced, adapted or
performed for the purpose of enabling or facilitating
the circumvention of any effective technological
measures.
3. For the purposes of this Directive, the expression
"technological measures" means any technology, device or
component that, in the normal course of its operation, is
designed to prevent or restrict acts, in respect of works or
other subject-matter, which are not authorised by the
rightholder of any copyright or any right related to copyright
as provided for by law or the sui generis right provided for in
Chapter III of Directive 96/9/EC. Technological measures shall
be deemed "effective" where the use of a protected work or other
subject-matter is controlled by the rightholders through
application of an access control or protection process, such as
encryption, scrambling or other transformation of the work or
other subject-matter or a copy control mechanism, which achieves
the protection objective.
4. Notwithstanding the legal protection provided for in
paragraph 1, in the absence of voluntary measures taken by
rightholders, including agreements between rightholders and
other parties concerned, Member States shall take appropriate
measures to ensure that rightholders make available to the
beneficiary of an exception or limitation provided for in
national law in accordance with Article 5(2)(a), (2)(c), (2)(d),
(2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from
that exception or limitation, to the extent necessary to benefit
from that exception or limitation and where that beneficiary has
legal access to the protected work or subject-matter concerned.
A Member State may also take such measures in respect of a
beneficiary of an exception or limitation provided for in
accordance with Article 5(2)(b), unless reproduction for private
use has already been made possible by rightholders to the extent
necessary to benefit from the exception or limitation concerned
and in accordance with the provisions of Article 5(2)(b) and
(5), without preventing rightholders from adopting adequate
measures regarding the number of reproductions in accordance
with these provisions.
The technological measures applied voluntarily by rightholders,
including those applied in implementation of voluntary
agreements, and technological measures applied in implementation
of the measures taken by Member States, shall enjoy the legal
protection provided for in paragraph 1.
The provisions of the first and second subparagraphs shall not
apply to works or other subject- matter made available to the
public on agreed contractual terms in such a way that members of
the public may access them from a place and at a time
individually chosen by them.
When this Article is applied in the context of Directives
92/100/EEC and 96/9/EC, this paragraph shall apply mutatis
mutandis.
Article 7 (Obligations concerning rights-management information)
1. Member States shall provide for adequate legal protection
against any person knowingly performing without authority any of
the following acts:
(a) the removal or alteration of any electronic
rights-management information;
(b) the distribution, importation for distribution,
broadcasting, communication or making available to the
public of works or other subject-matter protected under
this Directive or under Chapter III of Directive 96/9/EC
from which electronic rights-management information has
been removed or altered without authority, if such
person knows, or has reasonable grounds to know, that by
so doing he is inducing, enabling, facilitating or
concealing an infringement of any copyright or any
rights related to copyright as provided by law, or of
the sui generis right provided for in Chapter III of
Directive 96/9/EC.
2. For the purposes of this Directive, the expression
"rights-management information" means any information provided
by rightholders which identifies the work or other
subject-matter referred to in this Directive or covered by the
sui generis right provided for in Chapter III of Directive
96/9/EC, the author or any other rightholder, or information
about the terms and conditions of use of the work or other
subject-matter, and any numbers or codes that represent such
information.
The first subparagraph shall apply when any of these items of
information is associated with a copy of, or appears in
connection with the communication to the public of, a work or
other subject matter referred to in this Directive or covered by
the sui generis right provided for in Chapter III of Directive
96/9/EC.
Article 8 (Sanctions and remedies)
1. Member States shall provide appropriate sanctions and
remedies in respect of infringements of the rights and
obligations set out in this Directive and shall take all the
measures necessary to ensure that those sanctions and remedies
are applied. The sanctions thus provided for shall be effective,
proportionate and dissuasive.
2. Each Member State shall take the measures necessary to ensure
that rightholders whose interests are affected by an infringing
activity carried out on its territory can bring an action for
damages and/or apply for an injunction and, where appropriate,
for the seizure of infringing material as well as of devices,
products or components referred to in Article 6(2).
3. Member States shall ensure 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.
Article 9 (Continued application of other legal provisions)
This Directive shall be without prejudice to provisions
concerning in particular patent rights, trade marks, design
rights, utility models, topographies of semi-conductor products,
type faces, conditional access, access to cable of broadcasting
services, protection of national treasures, legal deposit
requirements, laws on restrictive practices and unfair
competition, trade secrets, security, confidentiality, data
protection and privacy, access to public documents, the law of
contract.
Article 10 (Application over time)
1. The provisions of this Directive shall apply in respect of
all works and other subject-matter referred to in this Directive
which are, on 22 December 2002, protected by the Member States'
legislation in the field of copyright and related rights, or
which meet the criteria for protection under the provisions of
this Directive or the provisions referred to in Article 1(2).
2. This Directive shall apply without prejudice to any acts
concluded and rights acquired before 22 December 2002.
Article 11 (Technical adaptations)
1. Directive 92/100/EEC is hereby amended as follows:
(a) Article 7 shall be deleted;
(b) Article 10(3) shall be replaced by the following:
"3. The limitations shall only be applied in certain
special cases which do not conflict with a normal
exploitation of the subject-matter and do not
unreasonably prejudice the legitimate interests of the
rightholder."
2. Article 3(2) of Directive 93/98/EEC shall be replaced by the
following: "2. The rights of producers of phonograms shall
expire 50 years after the fixation is made. However, if the
phonogram has been lawfully published within this period, the
said rights shall expire 50 years from the date of the first
lawful publication. If no lawful publication has taken place
within the period mentioned in the first sentence, and if the
phonogram has been lawfully communicated to the public within
this period, the said rights shall expire 50 years from the date
of the first lawful communication to the public. However, where
through the expiry of the term of protection granted pursuant to
this paragraph in its version before amendment by Directive
2001/29/EC of the European Parliament and of the Council of 22
May 2001 on the harmonisation of certain aspects of copyright
and related rights in the information society(11) the rights of
producers of phonograms are no longer protected on 22 December
2002, this paragraph shall not have the effect of protecting
those rights anew."
Article 12 (Final provisions)
1. Not later than 22 December 2004 and every three years
thereafter, the Commission shall submit to the European
Parliament, the Council and the Economic and Social Committee a
report on the application of this Directive, in which, inter
alia, on the basis of specific information supplied by the
Member States, it shall examine in particular the application of
Articles 5, 6 and 8 in the light of the development of the
digital market. In the case of Article 6, it shall examine in
particular whether that Article confers a sufficient level of
protection and whether acts which are permitted by law are being
adversely affected by the use of effective technological
measures. Where necessary, in particular to ensure the
functioning of the internal market pursuant to Article 14 of the
Treaty, it shall submit proposals for amendments to this
Directive.
2. Protection of rights related to copyright under this
Directive shall leave intact and shall in no way affect the
protection of copyright.
3. A contact committee is hereby established. It shall be
composed of representatives of the competent authorities of the
Member States. It shall be chaired by a representative of the
Commission and shall meet either on the initiative of the
chairman or at the request of the delegation of a Member State.
4. The tasks of the committee shall be as follows:
(a) to examine the impact of this Directive on the
functioning of the internal market, and to highlight any
difficulties;
(b) to organise consultations on all questions deriving
from the application of this Directive;
(c) to facilitate the exchange of information on
relevant developments in legislation and case- law, as
well as relevant economic, social, cultural and
technological developments;
(d) to act as a forum for the assessment of the digital
market in works and other items, including private
copying and the use of technological measures.
Article 13 (Implementation)
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 22 December 2002. They shall forthwith inform
the Commission thereof. When Member States adopt these measures,
they shall contain a reference to this Directive or shall be
accompanied by such reference on the occasion of their official
publication. The methods of making such reference shall be laid
down by Member States.
2. Member States shall communicate to the Commission the text of
the provisions of domestic law which they adopt in the field
governed by this Directive.
Article 14 (Entry into force)
This Directive shall enter into force on the day of its
publication in the Official Journal of the European Communities.
Article 15 (Addressees)
This Directive is addressed to the Member States.
ANNEX C
DRAFT REGULATORY IMPACT ASSESSMENT
Title: [The Copyright and Related Rights Regulations 2002]
1. Purpose and Intended Effect of the Regulations
1.1 The Regulations are to implement in the UK EU Directive
2001/29/EC on the harmonisation of certain aspects of copyright
and related rights in the information society ("the Directive").
The Directive entered into force on 22 June 2001 and is required
to be transposed by 22 December 2002.
1.2 The Directive is an internal market measure. It supplements five
Directives[14] already adopted in this field with common rules on
issues which are mainly relevant to the global nature of digital
communications technology. The Directive harmonises the basic
rights associated with digital dissemination of works, namely
the rights of originators of works to control reproduction and
communication to the public by transmission of their works,
including protection for "on-demand[15]" services. Also harmonised
are the right of distribution (of physical copies of works),
exceptions to rights (eg concerning copies made for private
purposes and temporary copies in electronic environments) and
the legal protection of technological systems for identification
and protection of works. Finally, the Directive requires that
effective, proportionate and dissuasive sanctions and remedies
be provided for infringements of these rights and obligations.
1.3 A complementary purpose of the Directive is to implement some
new international
14 91/250/EEC, 92/100/EEC, 93/83/EEC, 93/98/EEC and 96/9/EC.
15 Services whereby works are accessed by members of the
public at a time and place individually chosen by them.
obligations resulting from two treaties in the copyright field
concluded in December 1996 under the auspices of the World
Intellectual Property Organisation (WIPO).
1.4 The Regulations amend an existing regulatory regime in this
area. Current UK legislation is set out in the Copyright,
Designs and Patents Act 1988 as amended by the Broadcasting Acts
of 1990 and 1996 and Regulations[16] implementing earlier
Directives. UK law already provides the basic framework of
rights relevant to transmission and access via the Internet,
including specific exceptions to such rights, and the main
adjustments needed to comply with the Directive are limited to
certain key areas.
1.5 The main effects of transposition are introduction of exclusive
rights (as opposed to current remuneration rights) for
performers to control "on-demand" transmissions of recordings of
their performances (Article 3.2 of the Directive), amendments
needed to comply with the regime of compulsory and permitted
exceptions in Article 5 of the Directive, amendments to take
account of the comprehensive nature of the legal protection for
technological measures in Article 6, introduction of new
provisions for the legal protection of electronic rights
management information (Article 7) and improvements to sanctions
and remedies (required by Article 8).
2. Options
2.1 As the subject of this assessment is a Community Directive,
actual options are necessarily limited - the Directive's
provisions must be implemented in national law within the
timescale set out in the Directive. Non-implementation would
leave the Government open to infraction proceedings by the
European Commission and actions by those persons who could
demonstrate a loss due to failure to deliver the required
protection in national law.
2.2 The Directive is, in the main, prescriptive, but there is a
degree of choice within the
16 SI 1992 No.3233, SI 1995 No.3297, SI 1996 No.2967, SI
1997 No. 3032 and SI 2000 No. 1175.
provision on exceptions to rights (Article 5) in that the types
of exception listed in paragraphs 2 and 3 of the article are
optional. It is, therefore, for individual Member States to
decide whether to maintain or introduce exceptions in their
national legislation in line with any one or more of such
categories of exceptions. However, the list in Articles 5.2 and
5.3 is also exhaustive so that exceptions outside the scope of
the specified categories are not permitted.
Moreover, all exceptions to rights in national law must be
framed so as to comply with the "three-step test" of Article 5.5
of the Directive.
2.3 The approach adopted in the draft Regulations in the area of
exceptions is unchanged from the line pursued during
negotiations on the draft Directive. As made clear in
consultations with interest groups both before and after
adoption of the Directive, it has always been the Government's
intention to maintain as far as possible the existing exceptions
regime in UK law, and thereby continue the present balance in
the law between the interests of all the key stakeholders. No
new exceptions permitted by the Directive have therefore been
proposed in the current Regulations[17]; rather, existing
exceptions have been analysed and amended as necessary in the
light of the detail of Articles 5.2 and 5.3, bearing in mind
also the limitation of Article 5.5.
2.4 As is normal for Community measures, the Directive also leaves
Member States to decide the precise nature of the criminal
sanctions and civil remedies to be provided in national law for
the infringing activities covered. The Regulations extend and
strengthen the current position in UK law.
3. Risk Assessment
3.1 The Regulations are necessary to implement an EU Directive,
which also takes account of obligations under the two new
international (WIPO) treaties. Risk assessment, therefore,
should also be seen in the context of these adopted
international measures. Both
17 New exceptions for the benefit of visually impaired
people are, however, being introduced into the 1988 Act by
the Copyright (Visually Impaired Persons) Bill. 57
treaties and Directive have been generally welcomed by
legitimate interests. Digital technology permits perfect copies
of works to be made and transmitted almost instantaneously
across national boundaries, and it is widely accepted that
strengthening and harmonisation of basic rights is necessary in
order to ensure that copyright laws can be in a position to cope
effectively with the demands of the information society. In
particular, the continuing fight against copyright piracy
requires the introduction of common rules specific to on-line
transmission, coupled with stronger sanctions and remedies
overall. Effective legal protection is also required for
technological measures which right owners are beginning to apply
to their works in digital formats and environments in order to
protect these works against infringement and assist in
management of rights.
3.2 Independent quantitative assessments of the risks involved are
difficult to obtain, but the UK recorded music industry recently
estimated that the number of counterfeit CDs rose by 150% in
year 2000 (up to 2.9 million units) leading to a rise in the
overall cost of UK recorded music piracy to over ,20 million. On
an international basis, CD piracy has been held by the industry
to be mainly responsible for a reported fall in world sales of
recorded music of nearly 7% in units in the first half of 2001.
The overall global estimate for losses due to music piracy in
2000 is over $4 billion. The music industry is in the front line
in the fight against copyright piracy as shown by recent high
profile court cases, but they are certainly not alone.
The film industry too has potentially much to lose from the
advent of new data compression technologies and the spread of
broadband access, and there are strong indications that the
contagion of on-line copyright piracy is spreading to leisure
software and books.
3.3 Even though UK copyright law has proved remarkably
"future-proof", the need for international and regional action
on rights and remedies has been clearly demonstrated.
Nevertheless, it is also important that the law in this area
continues to be properly balanced to take account of the
interests of legal users of protected works and also of
intermediaries, such as Internet service providers and equipment
manufacturers. The concerns of consumers of works must be
addressed if public perceptions of copyright are to be
influenced in a positive way.
4. Benefits
4.1 Despite repeated efforts to obtain quantitative information on
probable benefits of the Directive's proposals for the various
parties involved, little data has been received. However, the
software industry has suggested that software piracy (estimated
at nearly $12 billion worldwide - $3 billion in Western Europe -
in 2000) could be reduced by at least one third as a result of
globally harmonised rights.
4.2 The limited information offered to date by interested parties on
likely benefits (and costs) of the Directive's requirements is
quite typical as a reaction to proposed measures in the
copyright field. Indeed, it has generally been the case that
interested parties have experienced considerable difficulties in
attempting to compile such data for proposals in the area of
intellectual property as a whole. The nature of intellectual
property rights means that changes to them are inherently
difficult to quantify. For example, an owner of a right, such as
a creator of a copyright work, does not have to exercise that
right (and thereby benefit) unless he or she chooses to do so.
Also, if rights are exercised, then benefits can vary depending
on whether the owner acts independently or collectively.
4.3 Despite the underlying difficulties in quantifying specific
economic effects of amendments to copyright law, there are some
general conclusions that can be drawn regarding the changes
contained in the draft Regulations:
o right holders will benefit generally from enhanced legal
security (including strengthened rights, extended
offences, and more comprehensive remedies);
o the development of new information society services (such
as on-demand services and digital broadcasting) and new
business models will be facilitated by the amendments
clarifying the scope of rights - to the advantage of all
the key players (right holders, users and intermediaries
alike);
o by implementing many of the international obligations of
the WIPO treaties, the Regulations will take the UK (and
EU) closer to ratification of these important
instruments, which are now in force and providing a boost
to intellectual property protection worldwide (the UK
depends on international copyright agreements to ensure
UK creativity and investment are properly protected
abroad); and
o the improved measures against unauthorised circumvention
of technological protection systems will benefit right
holders (content providers) in a similar and
complementary way to that in which recent changes in
protection of conditional access services[18] have
benefited providers of such services (enhanced legal
security against infringement). Businesses supplying the
technology of protection will also benefit indirectly
from more use of such systems stemming from greater
confidence in their improved integrity.
5. Compliance Costs for Business, Charities and Voluntary
Organisations Business sectors affected
5.1 The changes to UK law will potentially affect any holder of
rights covered by the Directive, ie authors of all descriptions,
performers, record producers, film producers, broadcasting
organisations, cable operators, and publishers. Businesses of
all sizes involved in such activities could therefore be
affected. The Regulations are also relevant to those providing
on-line services and networks, to certain suppliers of hardware
and software, and to all users of works involving the rights in
question, including (again) businesses of any size or
description, private individuals, libraries, educational and
scientific research establishments,
18 The Conditional Access (Unauthorised Decoders)
Regulations 2000 (SI 2000 No. 1175).
and disabled groups.
5.2 The economic significance of the main copyright-based industries
is shown by their contribution to the UK's GDP. Present
estimates[19] are close to 5%, but if industries with some
dependence on copyright protection are included, the figure
would be well over 6% with nearly 1.5 million employees
involved. These industries generated revenues of around Ј128
billion in year 2000 (Ј10.8 billion in exports). About one third
of this revenue is attributed to the software and computer
services sector. The recorded music sector alone (business
sectors D22140 and D22310) has reported annual revenue of about
,4.6 billion, with total overseas earnings of ,1.3 billion.
Equivalent figures for electronic publishing (sector D22150) are
Ј18.5 billion revenue (Ј1.7 billion exports) and for the film
and video industries, Ј3.6 billion (Ј650 million). UK electronic
publishing firms have an estimated 80% of the Community market
for on-line services and products.
5.3 The European Commission has estimated the market for copyright
goods and services Community-wide to range between 5 and 7% of
GDP. This market comprises traditional print products,
performances, films, videos and phonograms, as well as software,
CD-ROMs, interactive CDs (CD-Is), satellite and cable
broadcasts, and the new on-demand services. The growth rate of
the market for recorded music (CDs) over the last decade (well
over 60%) is seen by the Commission as a good indicator of
future growth in the copyright market as a whole, with TV
broadcasting also growing rapidly. The software market in
general (D22330) has been forecast to grow by over 10% a year,
while the European computer games sector has also seen
considerable year-on growth (eg 50% increase in overall turnover
during 1998). The EU leisure software industry employs about
100,000 people and has a current Community value of $8billion,
with EU developed software taking 45% of European sales (30%
globally).
Compliance costs for a typical business; total compliance costs
5.4 Given the scope of the Directive and the comments above on
affected sectors, the notion of a 'typical' business is not a
particularly useful one to pursue. Clearly the cost to a
particular business will depend on whether that concern is a net
holder or exploiter of protected material, or whether it only
uses copyright works in the course of business. Moreover, as
noted under 'Benefits' above, quantitative information on the
likely economic impact of the Directive has not been generally
forthcoming from the many business sectors consulted, despite
specific and repeated requests for such data. While it is hoped
that the current consultation on implementation of the Directive
will generate some useful specific data on the question of costs
to typical businesses in different sectors, there are some
general points to note:
o since protection by copyright and related rights arises
automatically when the works in question are created,
there is no legal requirement for registration of the
work or performance in order to secure rights;
o there are therefore no costs involved in the acquisition
of the rights covered by the proposal, ie there are no
official fees or initial professional costs to quantify;
o the general uncertainty over the economic effect of
implementation of any copyright Directive does not end
there, since any particular owner or user of rights also
stands to be affected by what others (right holders,
intermediaries and users) choose to do in respect of
their own or others' rights;
o however, if such actions give rise to disputes between
parties, then litigation costs could of course ensue.
19 Second Creative Industries Mapping Document 2001
(www.culture.gov.uk/creative/mapping.html)
5.5 Legal protection for the integrity of technical systems of copy
protection already exists in UK law, but the Regulations enhance
this protection and also introduce similar protection for
electronic systems of identification and management of works.
Since these provisions should only impinge on the activities of
those with illegal aims, there should be no additional cost to
legitimate business in this respect. Concerns that the
increasing use of such technical systems and the enhanced legal
protection for them could act to prevent legal users from
benefiting generally from exceptions to rights in national laws,
should be met by the official `safeguard' scheme proposed in
this context.
6. Small business litmus test
6.1 As noted above, there is no single kind of business which could
be said to be typical as regards the impact of the Regulations.
The Department has been in contact with small firms in certain
sectors to which the Directive is relevant and has sought to
identify appropriate businesses in other areas, but no
significant information has been forthcoming so far. Although
this also proved to be the case on earlier Directives in the
copyright field, efforts are continuing to identify suitable
businesses willing to try to evaluate the impact of copyright
measures on their activities. This is an important aspect of
ongoing work to ensure British businesses, and small and medium
enterprises in particular, are aware of the opportunities
provided by intellectual property protection to enhance their
profitability and competitiveness. The European Commission holds
the view that the digital environment, which is particularly
addressed by the Regulations (and Directive), offers many
opportunities to innovative and specialised SMEs. However, they
too seem unable to supply more specific data for `typical'
businesses.
7. Other Costs
7.1 The more significant potential costs of the changes to UK law
seem to lie with consumers and other net users of copyright
works such as libraries (sector O92510) and educational
institutions, rather than with businesses as such. Some
amendments to certain long-established exceptions in UK law are
necessary in order to comply with the regime on exceptions to
rights in Article 5 of the Directive. While we have sought to
minimise overall effects on users in the amending Regulations,
it is likely that some users who at present benefit from
particular exceptions will need to negotiate permission for
certain uses of works with rights holders and possibly have to
pay for such use. However, many businesses and organisations are
already using copyright material to such an extent that it would
be well outside the scope of existing exceptions, so that they
will already be paying for such use. The additional businesses
that may have to pay an increased royalty for use of music in
public because of a narrowing of an exception in this area will
be balanced by others who will be taken within the scope of the
exception regarding their use of copyright material currently
excluded from its scope.
8. Results of Consultations
8.1 This draft Regulatory Impact Assessment accompanies a
consultation paper on draft amendments to the 1988 Act to
transpose the Directive that will ultimately be made by
Regulations. The consultation package has been published on the
Patent Office website at www.patent.gov.uk and has also been
sent to organisations representing all main stakeholder groups
as well as to others who have registered a particular interest
since the Directive was adopted. A list of those consulted
directly is attached as Annex I.
8.2 Consultation on the Directive and earlier documents[20][21] has
also been extensive. The draft Directive was distributed widely
to UK interested parties and their views sought on the specific
proposals for legislation. A summary of this exercise is given
in the Regulatory Impact Assessment accompanying the Explanatory
Memorandum on the Commission's
20COM(95)382 final of 19 July 1995.
21COM(96)568 final of 20 November 1996.
amended proposal for the Directive[22]. The amended proposal was
distributed to those originally consulted and others who had
made their interest known since the initial consultations. Over
180 organisations were contacted and 30 or so formal written
submissions were received. One of the main themes to emerge from
the consultation on the amended proposal was that users'
concerns had been greatly increased by the further limitations
on exceptions introduced by that text. The Department then held
an extensive series of meetings with key stakeholders. So-called
"mega-meetings" involving all interests on particular issues
(arranged by the Department) proved particularly successful in
brokering compromise solutions to complex and controversial
problems. The Department also sought to ensure that interest
groups were kept fully aware of developments in the EU Council's
discussions and of suggested compromises.
8.3 The intensity of consultations with interests increased in the
run-up to adoption of the Directive and a fairly general view
developed that the text of the Common Position represented a
workable compromise. However, while most users and
intermediaries were more or less content with the balance of the
Common Position and made this known to Government, some
interests, especially right holder groups, lobbied the European
Parliament strongly for further moves in their direction. With
some limited changes to the Common Position adopted by the
Parliament, all interests then indicated that they could accept
the Common Position as amended.
8.4 Consultation has continued since adoption by the EU Council (9
April 2001). As the Department began its formal analysis of the
Directive's impact on UK law, interest groups were informed of
the intended legislative route and general approach to be
adopted on implementation. Many meetings were held with key
interests prior to publication of the consultation on draft
amendments and about 30 written submissions were received in
this period suggesting how certain aspects of the implementation
should be addressed. Officials have also attended meetings with
other Member States called by the Commission to try to
22EM 8723/99 of 27 May 1999; submitted by the DTI on 15
June 1999
encourage as much harmonisation as possible on transposition of
certain provisions of the Directive, and major interests have
been kept up to date on these discussions.
8.5 Other related consultations have also taken place. These have
dealt with (1) amendment of the statutory licence provisions for
broadcasting of sound recordings (s.135A- G of the 1988 Act),
(2) a possible exception to copyright for the benefit of
visually-impaired people, and (3) possible changes to criminal
provisions in intellectual property law. Details of these
consultations, including summaries of responses, can be found on
the Patent Office web site (www.patent.gov.uk) . Some of the
changes proposed in the first of these exercises are delivered
by the draft amendments now proposed. The second and third of
these exercises have led to Government-supported Private
Members' legislation.
9. Monitoring and review
9.1 Views will continue to be sought from UK interested parties on
the financial and administrative effects of the Directive and
the Regulations. The Directive requires the Commission to report
on the application of the Directive not later than 22 December
2004, and every three years thereafter. Particular emphasis is
to be placed on the area of exceptions to rights and the
interplay with technological protection systems. The Directive
establishes a Contact Committee to facilitate both
implementation and information exchange, and to study future
developments in the field.
10. Summary and Recommendations
10.1 Changes to the law of copyright and related rights tend to alter
the balance between different players in the market rather than
imposing additional costs overall, so that the net economic
effect UK-wide (aside from any administration costs) should be
broadly neutral, as the gains to one will offset the costs to
another. Nevertheless, the strengthening of basic rights brought
about by the present Regulations should assist all right holders
in their development of new business models. The changes will
also provide the legal framework for more effective action
against piracy and other unauthorised use of works, while
largely maintaining the essential balance in copyright law
between, on the one hand, rights and, on the other hand,
exceptions for the benefit of legitimate users of works, such as
educational establishments and libraries.
The recommendation is that Directive 2001/29/EC should be
transposed into UK law as soon as possible by approval of the
draft Regulations.
Contact Point
Brian Simpson
Copyright Directorate
The Patent Office
Harmsworth House
13-15 Bouverie Street
London EC4Y 8DP
T: 020-7596 6506
F: 020-7596 6526
E: brian.simpson@patent.gov.uk
(Alternative contact: Roger Knights; T: 020-7596 6505; other details as
above)
Declaration:
I have read the Regulatory Impact Assessment and I am satisfied that the
balance between cost and benefit is the right one in the circumstances.
Signed by the responsible Minister
Date
ANNEX I
LIST OF THOSE CONSULTED DIRECTLY ON THE DRAFT AMENDMENTS IN
ANNEX A OF THE CONSULTATION PAPER OF 7 AUGUST 2002
Action with Communities in Rural England (ACRE)
AEI Music Ltd
Alliance against Counterfeiting & Piracy
Alliance of Independent Retailers (AIR)
American Film Marketing Association (AFMA) Europe
America Online (AoL)
Anti-Counterfeiting Group (ACG)
Arts Council of England
Arts Council of Northern Ireland
Arts Council of Wales
Associated Newspapers
Association of British Concert Promoters
Association of the British Pharmaceutical Industry (ABPI)
Association of Convenience Stores (ACS)
Association of Education & Library Boards (Northern Ireland)
Association of Independent Music (AIM)
Association of Independent Research and Technology Organisations (AIRTO)
Association for Information Management (ASLIB)
Association of Leading Visitor Attractions
Association of Learned and Professional Society Publishers (ALPSP)
Association of Licensed Multiple Retailers (ALMR)
Association of Professional Recording Services (APRS)
Association of United Recording Artists (AURA)
Association of University Teachers
Authors Licensing and Collecting Society (ALCS)
Bangladesh Caterers Association (UK)
Bar Council
Brewers and Licensed Retailers Association of Scotland (BLRAS)
British Academy
British Actors Equity Association (Equity)
British Art Market Federation
British Association of Leisure Parks, Piers and Attractions (BALPPA)
British Association of Picture Libraries & Agencies (BAPLA)
British Beer and Pub Association
British Betting Office Association
British Broadcasting Corporation (BBC)
British Chambers of Commerce
British Computer Society (BCS)
British Copyright Council
British Deaf Association
British Film Institute (BFI)
British Holiday and Home Parks Association
British Horseracing Board
British Hospitality Association
British Institute of Innkeeping
British Interactive Multimedia Association (BIMA)
British Internet Publishers Alliance
British Library
British Literary and Artistic Copyright Association (BLACA)
British Music Rights
British Phonographic Industry (BPI)
British Photographers Liaison Committee
British Retail Consortium
British Sandwich Association
British Screen Advisory Council (BSAC)
British Shops and Stores Association
British Sky Broadcasting
British Telecommunications (BT)
British Video Association (BVA)
British Web Design and Marketing Association (BWDMA)
Broadcasting, Entertainment, Cinematograph & Theatre Union (BECTU)
Buenavista Home Entertainment
Business in the Community
Business Software Alliance (BSA)
Cable & Wireless
Campaign for Digital Rights
Campden & Chorleywood Food Research Association
Candy Rock Recording Ltd
Central Computer and Telecommunications Agency (CCTA)
Centre for Education Management (CEM)
Channel 5 Broadcasting
Channel Four Television
Chartered Institute of Library and Information Professionals (CILIP)
Chartered Institute of Library and Information Professionals in Scotland (CILIPS)
Chartered Institute of Library and Information Professionals (CILIP) Wales
Chartered Institute of Patent Agents
Chinese Chamber of Commerce (UK)
Chinese Takeaway Association (UK)
Christian Copyright Licensing International (Europe) (CCLI)
Cinema Exhibitors Association
Commercial Radio Companies Association (CRCA)
Community Media Association (CMA)
ComPact Collections Limited
Computing Services and Software Association (CSSA)
Confederation of British Industry (CBI)
Confederation of Information Communication Industries (CICI)
Consortium of University Research Libraries (CURL)
Consortium of Welsh Library and Information Services (CWLIS)
Consumers Association
Convention of Scottish Local Authorities (COSLA)
Copyright Licensing Agency (CLA)
Council for Museums, Archives and Libraries
Council of Museums in Wales
Design & Artists Copyright Society (DACS)
Diamond Cable Communications Ltd
Digital Content Forum
Direct Marketing Association (DMA)
Directors & Producers Rights Society (DPRS)
Directory and Database Publishers Association (DPA)
Educational Copyright Users Forum (ECUF)
Educational Recording Agency (ERA)
Educational Software Publishers Association (ESPA)
English Association of Self-Catering Operators
European Association of Consumer Electronics Manufacturers (EACEM)
European Catering Association (GB)
European Digital Media Association (EDiMA)
European Informatics Market (EURIM)
European Leisure Software Publishers Association (ELSPA)
European Publishers Council
Faculty of Advocates
Federation Against Copyright Theft (FACT)
Federation Against Software Theft (FAST)
Federation of the Electronics Industry (FEI)
Federation of the Licensed Retail Trade in Northern Ireland (FLRT)
Federation of Licensed Victuallers Associations (FLVA)
Federation of Small Businesses
Filmbank Distributors Ltd
Film Council
Film Distributors Association
Fitness Industry Association
Forum of Private Business
Forum of Private Business in Scotland
Foundation for Information Policy Research (FIPR)
Gathering the Jewels
General Consumer Council for Northern Ireland
GMS (Recordings) Ltd
Guild of Hairdressers
Her Majesty's Stationery Office (HMSO)
Hospital Broadcasting Association (HBA)
Incorporated Society of British Advertisers (ISBA)
Incorporated Society of Musicians (ISM)
Independent Schools Council (ISC)
Independent Television Commission (ITC)
Independent Television Network (ITN)
Information and Communications Industry Association (ICIA)
Institute of Directors (IOD)
Institute of Practitioners in Advertising (IPA)
Intellectual Property Institute (IPI)
International Artist Managers Association (IAMA)
International Association of Music Libraries, Archives & Documentation Centres (IAML) UK
International Federation of the Phonographic Industry (IFPI)
International Visual Communication Association (IVCA)
Internet Service Providers Association (ISPA) UK
Law Society of England & Wales.
Law Society of Northern Ireland
Law Society of Scotland
Learning and Teaching Scotland
Library and Archive Copyright Alliance (LACA)
Library & Information Services Council (Northern Ireland)
Library & Information Services Council (Wales)
Local Government Association
Macrovision UK Ltd
Mechanical-Copyright Protection Society (MCPS)
Meteorological Office
Museums Association
Museums Copyright Group
Music Choice Europe
Musicians Union (MU)
Music Managers Forum (MMF)
Music Producers Guild MPG)
Music Publishers Association
Music Users Council
Music Users Council of Europe
National Archives of Scotland
National Consumer Council
National Council for Voluntary Organisations (NCVO)
National Federation of the Blind
National Federation of Fish Fryers
National Federation of Retail Newsagents
National Hairdressers Federation (NHF)
National Library for the Blind (NLB)
National Library of Wales
National Library of Scotland
National Market Traders Federation
National Museum Directors Conference
National Museums & Galleries of Northern Ireland
National Union of Journalists (NUJ)
National Union of Students (NUS)
Newspaper Licensing Agency (NLA)
Newspaper Publishers Association (NPA)
Newspaper Society
Nickelodeon UK
Northern Ireland Council for Voluntary Action (NICVA)
Northern Ireland Film Commission
Northern Ireland Hotels Federation
Northern Ireland Independent Retail Trade Association (NIIRTA)
Northern Ireland Museums Council
NTL
OFTEL
Open University Worldwide
Ordnance Survey
Ordnance Survey of Northern Ireland
Performers Alliance
Performing Artists Media Rights Association (PAMRA)
Performing Right Society (PRS)
Periodical Publishers Association (PPA)
Personal Managers Association (PMA)
Phonographic Performance Limited (PPL)
Producers Alliance for Cinema & Television (PACT)
Producers Rights Agency
Public Lending Right (PLR) Office
Public Record Office
Public Record Office of Northern Ireland
Publishers Association
Publishers Licensing Society
Radio Authority
Radio, Electrical and Television Retailers Association (RETRA)
Restaurants Association
Royal Academy of Arts
Royal Commission for the Ancient and Historical Monuments of Wales
Royal National Institute for the Blind (RNIB)
Royal National Institute for Deaf People (RNID)
Royal Society
Royal Society for Mentally Handicapped Children and Adults (MENCAP)
Satellite and Cable Broadcasters Group
School Library Association
Scottish Arts Council
Scottish Consumer Council
Scottish Council for Voluntary Organisations (SCVO)
Scottish Library and Information Council (SLIC)
Scottish Licensed Trade Association
Scottish Museums Council
Sianel Pedwar Cymru (S4C)
Society of Archivists
Society of Authors
Society of Chief Librarians (in England & Wales) (SCL)
Society of College, National and University Libraries (SCONUL)
Society of London Theatre (SLT)
Sound Management Services Ltd
Spoken Word Publishing Association (SWPA)
Student Radio Association
Talking Newspaper Association of the UK (TNAUK)
Tape Manufacturers Group
Telecommunications UK Fraud Forum (TUFF)
Telewest Communications plc
Theatrical Management Association (TMA)
Thus plc
Trade Marks Patents & Designs Federation (TMPDF)
Training & Enterprise Councils (TEC) National Council
TSC Music Systems Ltd
UK Chinese Catering Association
UK Hydrographic Office
UK Media Monitoring Association
UK Reprographic Association (UK-Re)
Universities UK
Video Performance Limited (VPL)
Virgin Our Price
Voice of the Listener and Viewer (VLV)
Welsh Consumer Council
Welsh Local Government Association
Writers Guild of Great Britain
ANNEX II
ORGANISATIONS FROM WHICH WRITTEN SUBMISSIONS HAVE BEEN
RECEIVED [For final RIA]
ANNEX D
THE CONSULTATION CRITERIA
This consultation is being conducted according to the Code of Practice
on Written Consultation[23]. This recommends the following criteria:
2. Timing of consultation should be built into the planning
process for a policy (including legislation) or service from
the start, so that it has the best prospect of improving the
proposals concerned, and so that sufficient time is left for
it at each stage.
2. It should be clear who is being consulted, about what
questions, in what timescale and for what purpose.
3. A consultation document should be as simple and concise as
possible. It should include a summary, in two pages at most,
of the main questions it seeks views on. It should make it
as easy as possible for readers to respond, make contact or
complain.
4. Documents should be made widely available, with the fullest
use of electronic means (though not to the exclusion of
others) and effectively drawn to the attention of all
interested groups and individuals.
5. Sufficient time should be allowed for considered responses
from all groups with an interest. Twelve weeks should be the
standard minimum period for a consultation.
6. Responses should be carefully and open-mindedly analysed,
and the results made widely available, with an account of
the views expressed, and reasons for decisions finally
taken.
7. Departments should monitor and evaluate consultations,
designating a consultation coordinator who will ensure the
lessons are disseminated.
If you have any complaints or other comments about how this consultation
process is being handled, please pass these to the Patent Office's
Consultation Coordinator:
Valerie Waters (Consultation Coordinator)
The Patent Office
Concept House
Cardiff Road
Newport NP10 8QQ
Tel: +44 (0) 1633 813784; Fax: +44 (0) 1633 814509;
E-mail: valerie.waters@patent.gov.uk
23 Available from the Cabinet Office website at:
http://www.cabinet-office.gov.uk/servicefirst/2000/consult/code/ConsultationCode.htm