EU Copyright Directive

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

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

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

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

(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

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

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

`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

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;

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

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,

(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,

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

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

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

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

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

(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

(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

(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

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

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

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

(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

(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

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

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

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

(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

(3) A person issuing or communicating the copies to the

public has the same rights against (D) and (E) as a

(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

(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

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

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

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

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

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

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;

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;

(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;

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;

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;

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

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;

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

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

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

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

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)

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