Adjuncts and Alternatives to Copyright

Topic 1: Technological Protection of Copyright Works, and Copyright Management

Part D: What is the appropriate scope of copyright in a world of technological

Session 1: The New or Evolving "Access Right".

United Kingdom National Report, compiled by Hubert Best and Rachel Tregear.

1. Copyright Designs & Patents Act 1988 (“CDPA”)

(a) s.16 (1) (b) CDPA
to issue copies of the work to the public

the issue to the public of copies of the work is an act restricted by copyright in every description of copyright work.

(b) s.16 (1) (c)
to perform, show or play the work in public.

s.19 (1)
the performance of the work in public is an act restricted by the copyright in a literary dramatic or musical work

public exhibition is not covered.

(c) s.16
rental/lending rights
broadcasting/cable rights
adaptation right

2. s.17 (6)
copying in relation to any description of work includes the making of copies which are
transient or are incidental to some other use of the work.

s.17 (2) in relation to literary, dramatic, musical and artistic works copying expressly includes storing the work in any medium by electronic means.

Copinger & Skone James on Copyright state that the combination of the two provisions (s.17 (6) and 17 (2)) makes it clear that the fleeting copying of such works in computer memory is one of the exclusive rights of the copyright owner.

Copyright Directive
Article 5
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 whose sole purpose is to enable:

(a) a transmission in a network between third parties by an intermediary, or

(b) lawful use of a work or other subject matter to be made and which have no independent economic significance shall be exempted from the production right provided for in Article 2.

E-Commerce Directive
Article 13
Automatic and Intermediate Temporary Storage do not attract liability if the specified conditions are met.

No consultation documents have net been published in relation to either Directive, neither of which has yet been transposed into UK law.

3. CDPA as enacted contained limited exclusive right to control rental of copies of certain
works. In relation to sound recordings, films and computer programs the exclusive right of
issuing copies to the public was widened to include the exclusive right of rental of copies
of such works to the public.

By the Public Lending Right Act 1979 as implemented by the Public Lending Right Scheme 1982, a separate right was conferred on a limited class of authors under which they were entitled to payment out of a central fund in respect of books lent to the public by local library authorities.

The implementation of EC Directive 92/100/EEC required the UK to grant an exclusive right of rental and lending in relation to a much wider class of works. The scheme of the CDPA as revised is that rental and lending of copies of a work to the public are restricted acts, but if the lending of a book by a public library is within the Public Lending Right Scheme or is by a prescribed library or archive then it amounts to a permitted act and is not infringement.

The rental and lending right only applies to certain categories of works, namely (a) literary, dramatic and musical works (b) artistic works other than works of architecture in the form of a building or a model for a building or works of applied art, and (c) films and sound recordings. The rental and lending of any of the above categories of work is a restricted act. (See s.16(ba) & 18A.)

4. Legal access to entire works in hard copy - by purchase, rental, lending.

Legal access to parts of works in hard copy - by use of exceptions to copyright (e.g. an extract of a dramatic work quoted in a legitimately obtained review, a television news item quoting a newspaper article, permitted copying by a librarian, etc.)
Example of physical restraint of hard copies - Hereford Cathedral's chained library.

5. Legal access to entire works in electronic form - by authorised downloading and copying,
purchase or hire of physical objects (e.g. CD-Rom, DVD) containing electronic copies and
accessing those copies in accordance with licence, pay-per-view television.

Legal access to parts of works in electronic form - see 4 above.

6. There is no general private and domestic copying exception although a measure of
tolerance is shown by the fact that the criminal penalties applicable in the event of
copying for commercial purposes do not extend to private persons.

s.70 CDPA provides that “The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe copyright in the broadcast or cable programme or in any work included in it.”

s.71 CDPA permits photos to be taken of part of a TV broadcast or cable programme.

Other provisions which relate to copying or use of work in private context: -

  • s.182(2) - in relation to rights in performances there is an exception allowing a recording of a performance to be made where this is for the private and domestic use of the person making the recording.
  • exceptions relating to private study (s.29) and playing sound recordings for the purposes of a club or society.
  • certain acts are not infringement if done in private (s.19, performance of work) or done for private and domestic purposes, (s.22, importation of infringing copy).

7 & 8 No. At the time of the introduction of CDPA commentators noted that right owners'
claims had not been satisfied and that Article 9 of the Berne Convention had been
breached. Pressure for change in the law to introduce a blank tape levy or other
compensatory mechanism continues.

9. s.16 - Reproduction Right

The owner of the copyright in the work has the exclusive right to copy the work.

s.17 deals with infringement of a copyright work by copying.

10. We discussed these issues with Brian Simpson at the Copyright Directorate, which is a
division of the UK Patent Office (+44 (0)20 7596 6506).

There have been policy discussions in relation to the negotiation of the Copyright Directive and the implementation of the Conditional Access Directive. The participants have included Patent Office, DTI, OFTEL

Conditional Access (Unauthorised Decoders) Regulations 2000 amend sections 297A and 298 of CDPA and section 42A of the Telecommunications Act 1984.

The Regulations provide for protection and criminal sanctions against illicit devices which enable or facilitate the circumvention of technological measures designed to protect television and radio subscription services and conditional access services.

Article 6 of the Copyright Directive is to be transposed into UK legislation in the next 18 months or thereabouts.

(a) Section 297A CDPA applies to information society services:

A person commits an offence if he makes, imports, distributes, sells or lets for hire or offers or exposes for sale or hire any unauthorised decoder.

Unauthorised access itself is not an offence under this section.

Article 6 of the Copyright Directive covers the protection of technological measures and rights management information.
Article 6.1 provides that member states shall provide adequate legal protection against 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.

12. (b) As unauthorised access is not itself an offence under CDPA, exceptions are not

Article 6.2 deals with control over the devices which are used to circumvent copy protection devices. Article 6.4 covers the relationship between protection of technological measures and exceptions / limitations on copyright. As the exceptions / limitations on copyright could become worthless if technological protection devices can never be circumvented, the Directive envisages an environment where rights owners volunteer to make their copy protected works available in accordance with specified exceptions to copyright. Failing this member states may act to secure access to copyright works.

12. No "access right" has been enacted.

12 (a) & (b) Not applicable.

12.(c ) If transposition of Article 6.2 of the Copyright Directive into UK law results in strict liability
for mere access to any material protected by technological measures then voluntary
provision of copies by right owners for operation of the exceptions is likely to be too
weak. This would be of special concern in relation to the exceptions of general public
interest such as reporting current events.

12.(d) Not applicable.

13. Enactment is necessary (a) to provide for transitory copies in CDPA, and (b) for CDPA to
comply with the Copyright and E-Commerce Directives.

13.(a) The exceptions providing for the making of transitory copies of digital material should be

13.(b) The Copyright Directive provides a narrower "access right" than currently exists under
CDPA owing to the lack of a clear and legally enforceable exceptions regime applying to
circumvention of technological measures. Direct transposition into UK national law would
be likely to result in a significant restriction to all exceptions to copyright in the digital
environment. This could have significant impact on freedom of information (e.g. the
extent to which digitised information in the public interest might no longer be legitimately
accessed for reporting current events, criticism or review).

On the other hand, a response to concerns about the interception of e-traffic, including by the secret services of various states (e.g. perhaps by eavesdropping networks such as Echelon), have raised a concern that encryption be more readily available and effective to prevent unauthorised access to private information, including commercial data.

14. Judicial decisions

There have been numerous decisions on the subsistence and infringement of copyright, which it is not useful to detail in this paper.

A few relevant decisions are summarised below together with the paragraph number of the report to which they relate.

2. Bookmakers' Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire)
Ltd 1994 FSR 723
. The plaintiff was concerned with the promotion / arrangement of
greyhound race meetings during ordinary betting shop hours. For each meeting a race
card was produced. The Defendant operated a broadcast sports service and used the
plaintiff's material without consent. The case was decided under the 1956 Copyright Act
which contained no definition of "material form". However the decision held that there was
no reason to give them a meaning which excluded materialisation on a television
monitor. By turning on its monitors in its shops the defendant had reproduced a
substantial part of the programme.

Shetland Times v Wills 1997 FSR 604 Court of Session

The plaintiff owned and published the Shetland Times. The Defendant provided a news reporting service under the name Shetland News. The defendant reproduced headlines from the plaintiff and provided links to their site. Inter alia this was infringement of a literary work under section 17 CDPA: the copying was in the form of storing the works by electronic means. The interim edict in the Court of Session was granted.

3 CBS v Ames Records and Tapes Ltd 1982 Ch 91

A record library which lent out records and simultaneously offered blank cassettes for sale at a reduced price was held not to have purported to authorise customers to make infringing copies.

7 & 8 CBS v Amstrad Consumer Electronics plc 1988 2 WLR 1191 House of Lords

The respondents in the case produced audio equipment, and included in their range a hi-fi unit comprising two cassette decks. This feature allowed the user to copy the contents of one cassette onto another. A further feature allowed the contents of the tape to be copied in half the normal playing time. The action alleged that Amstrad had purported to authorise users to make copies of protected works in disregard of the rights of copyright owners and in breach of the provisions of the 1956 Copyright Act. The House of Lords held that the critical issue was whether the equipment could be put to legitimate as well as illegitimate purposes. As this was the case Amstrad had not authorised copyright infringement, although they had facilitated it.

11 Please see report on Session 1 C for cases on these sections.

United Kingdom National Report, compiled by Hubert Best and Rachel Tregear. Also published on the Columbia Law School website.