Scope and duration of copyright
|Does copyright end immediately after the minimum period mandated by the Berne Convention?||No
Various formulas are used in UK legislation and generally the copyright term is either 70 or 50 years from the end of the calendar year in which a work was fixed. For literary, dramatic, musical or artistic works (including films) the copyright term is 70 years from the end of the calendar year in which the last remaining author of the work dies. If the author is unknown, copyright will last for 70 years from end of the calendar year in which the work was fixed. For sound recordings and broadcasts the copyright term is 50 years from the end of the calendar year in which the work was fixed, or, if the work is released within that time: 50 years from the end of the calendar year in which the work was first released. For typographical arrangement of published editions the copyright term is 25 years from the end of the calendar year in which the work was first published. For broadcasts and cable programmes the copyright terms is 50 years from the end of the calendar year in which the broadcast was made.
|Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders?||No
Technically no UK court or tribunal has ever limited the exercise of copyright under competition law. The Copyright Tribunal has jurisdiction over instances where a collecting society has refused a licence or has imposed unreasonable licensing terms (including the tariff). However, while refusal to licence and unreasonable licensing terms can clearly engage competition law, ie abuse of dominant position and anti-competitive agreements, the Copyright Tribunal does act in reference to competition law. Generally copyright is subject to the Competition Act 1998, which is modelled on Article 101 and 102 of the EC Treaty. The two music collecting societies PPL and PRS were subject to a market investigation by the Monopolies and Mergers Commission (now the Competition Commission) in 1988 and 1996 respectively. The European competition authorities have established extensive case law in relation to copyright, collecting societies and competition. Violation of Article 101 and 102 may result in compulsory licensing and the European Commission has clarified that (OJ2004/C 101/02): 'The fact that intellectual property laws grant exclusive rights of exploitation does not imply that intellectual property rights are immune from competition law intervention.' Copyright licensing agreements are subject to Article 101 if they affect trade between EU member states and if they have the 'object or effect of preventing, distorting or restricting competition', which may include absolute territorial exclusivity. Article 102 applies where a copyright owners’ or collecting societies’ refusal to supply amounts to the abuse of a dominant position. Magill established that the refusal to license might constitute an abuse of a dominant position. EU case law on anti-competitive agreements and abuse of dominant position in relation to copyright and collecting societies has never been applied by UK courts or tribunals.
|EC Treaty Articles 101 and 102, Magill, Competition Act 1988|
|Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?||Yes
In Ashdown the Court of Appeal held that exceptions to copyright must be read in the light of the European Convention on Human Rights, ie the Human Rights Act 1998 which enacts the European Convention in the UK. The case concerned the impact of the Article 10, the right to freedom of expression, upon the fair dealing defence to claims of infringement under the 1988 Act. The Court of Appeal concluded that if freedom of expression comes into conflict with copyright and is not covered by fair dealings or permitted acts as per the 1988 Act, the 1988 Act must be applied in a manner that accommodates the right to freedom of expression, (specifically s 3 of the Human Rights Act 1998).
|Ashdown, ECHR, HRA, 1988 Act|
|Can databases of non-original material be reproduced without infringing a copyright or sui generis database right?||No
The elements of a database may be works in their own right, or simply items of information in textual, visual or audio form. The 1988 Act requires the following level of originality that a database must show (s 3A(2)): 'if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.' (note the Database Directive may protect databases that are not awarded copyright protection under this originality criteria). Therefore the copyright awarded to databases under the 1988 Act does not cover the contents of the database, but their selection or arrangement – that is the way in which the contents are structured. This structure must be the author’s own intellectual creation, not some standard method. Databases are defined by the 1988 Act (s 3A) as: 'collections of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.'
|1988 Act, Database Directive|
|Are rights holders prohibited from excluding user rights under copyright law?||No
The 1988 Act does not protect statutory user rights, ie exceptions, permitted acts and fair dealing, from contractual over-rides. Copyright law gives protection to technical protection measures (TPMs) which are capable of preventing use under the permitted acts and fair dealing provisions. The circumvention of TPM is illegal so long as the protected work is made available by way of contractual terms.
|1988 Act, ss 296 and 296ZA|
|Is computer software excluded from the scope of patentable subject matter?||Yes
Applications relating to patents in computer programmes are likely to be rejected based on existing case law. Aerotel held that computer programmes fall within Article 52 of the EPC 'exclusion provisions' and as such fall foul of step three in the four step test developed by Aerotel on patentability. The court held that 'the framers of the EPC really meant to exclude computer programs in a practical and operable form. They meant to exclude real computer programs, not just an abstract series of instructions'. Aerotel was subsequently confirmed in Nintendo.
|EPC Article 52, Aerotel and Nintendo|
Freedoms to access and use
|By Home Users||Is there any general user right that is based on a set of balancing criteria, such as a "fair use" right?||No
There is no fair use or private copying exceptions in UK copyright law. The 1988 Act only provides for a number of narrow permitted acts, allowing time-shifting of broadcast and backup of computer programmes in certain circumstances, as well as fair dealing in the case of non-commercial research, criticism, review and news reporting. Essentially the copying for personal use of content consumers have purchased is largely illegal under UK law: the back-up of music, film and e-books is currently illegal and so is format-shifting, eg copying music or e-books into different formats.
|1988 Act, ss.29, 30, 50A and 70|
|Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?||In part
Time-shifting of television and radio broadcasts does not constitute infringement of copyright as long as it is carried out in domestic premises for 'private and domestic use'. However, format-shifting is not permitted under the 1988 Act, although among consumers there is a widespread belief that such action is legal under UK law.
|1988 Act, ss.70|
|Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?||No
The 1988 Act does not provide for a private copying exception, only some limited fair dealing and permitted acts exceptions. The 1988 Act provides for a limited exception for the purpose of making a backup copy of computer programs if 'necessary' to have for the purposes of 'lawful use'. This exception was introduced with the implementation of the Software Directive and is immunised from contractual over-rides. However, it is not clear when a back-up copy is 'necessary'. According to the European Commission back-up copies are to be made 'for security reasons' and has emphasised that only one copy is permitted for this purpose. Whether the back-up copy is 'necessary' will depend on a variety of considerations, including the stability of the medium on which the original copy is stored. UK case law has established that it will rarely be necessary to make a back-up copy of a program sold on CD-ROM.
|Software Directive Article 5(2), 1988 Act s.50A, Sony Computing, Sony|
|Can works be communicated to a limited public (for example, family and friends) without infringing copyright?||No
The communication to the public of a work is restricted by copyright in literary, dramatic, musical and artistic works, sound recordings, films and broadcasts. This right was introduced in implementation of the InfoSoc Directive. The Directive only allows the UK to introduce a private copying exception for the reproduction right, not for the right to communicate a work to the public. Therefore the UK cannot introduce an exception that would allow consumers to communicate copyright protected works to a limited public such as family or friends without infringing copyright.
|1988 Act, InfoSoc Directive|
|For Education||May students copy works for private research or study?||In part
The 1988 Act provides for a fair dealing defence covering non-commercial research and private study. However, broadcast, sound recordings and films are excluded from the scope of this user right. The fair dealing defence was first developed in the 18th and 19th century and originally applied to all types of copyrighted works and covered commercial as well as non-commercial research. With the implementation of the InfoSoc Directive in UK law in 2003 the defence was narrowed to 'non-commercial' purposes. There is degree of ambiguity with regards to the distinction between commercial and non-commercial research for institutional users, for example in the context of a University professor where the research may have non-commercial as well as commercial purposes. This ambiguity does not generally affect consumer or end user research. The 1988 Act also provides for a number of narrow permitted acts in favour of educational establishments (schools, further education colleges and universities).
|1988 Act, s.29, see also ss.32-26A for education and ss.37-44A for libraries and archives|
|Does any such research and study provision cover distance and online education?||No
The 1988 Act does not provide for distant and online education. Reprography (ie photocopying, printouts of electronically stored material and electronic copies) for non-commercial instructional purposes by educational establishments is subject to severe limitations. Reprographic copies of more than 1 per cent of any work in any quarter of a year are prohibited, and only permissible if licences for such copying are not available.
|1988 Act, s.36|
|May translations of works be made for educational purposes?||No
|May educators copy works for use in the classroom?||In part
In theory the 1988 Act makes two provisions for the benefit of educators, s.32 provides that copyright in a literary, dramatic, musical, or artistic work is not infringed if it is copied in the course of, or prepared for, instruction. Such copies may only be made by a person giving or receiving instruction and must be accompanied by a sufficient acknowledgement. However, it is also stated that such copying may not be 'done by means of a reprographic process'. Reprographic process is defined in s.178 of the 1988 Act, as a process "for making facsimile copies, or involving the use of an appliance for making multiple copies". Hence the definition is so broad that it would almost certainly apply to digital copying carried out for the purpose of instruction. In order to facilitate the use of copyrighted works in the course of instructions various licensing solutions have emerged for schools, and there are twelve collecting societies that issue licences to schools and colleges in the UK. The licensing system for school is complex as there is no standard licensing terms and licences frequently overlap. Furthermore existing licences do not cover all materials used in schools or all uses of copyright materials in schools. These gaps leave schools open to liability for copyright infringement.
|1988 Act ss.32 and 178|
|Online||Are temporary or transient copies, incidental to a lawful use, excepted from copyright?||In part
Temporary or transient copies are regarded as copyright infringement, unless they fall within the permitted act for transient copies that was amended into the 1988 Act with the implementation of the InfoSoc Directive. This exception allows temporary or transient copies of copyrighted works other than computer programmes if the act is 'an integral and essential part of a technological process the sole purpose of which is to enable a transmission of the work in a network between third parties by an intermediary.' The InfoSoc Directive states in its recitals that caches are to be understood as temporary or transient copies. However, no case law on this issue has confirmed this interpretation. Temporary or transient copies of computer programmes may be permissible under s 50C of the 1988 Act, which permits the copying of a computer programme, if “necessary for his lawful use” and if the act is not prohibited under the term or conditions. However, no case law on the issue exists.
|1988 Act ss.17, 28A, and 50C, InfoSoc Directive Article 5(1)|
|Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network?||Yes
Communications intermediaries, such as ISPs, which transmit information through a communications network are not liable copyright infringement if they did not initiate the transmission, did not select the receiver of the transmission, and did not select or modify the information contained in the transmission. The act of transmission includes the automatic, intermediate and transient storage of the information transmitted. Intermediaries which store information, such as hosts, are not liable for copyright infringement if the intermediary does not authorise the infringement or has actual knowledge of the infringement. Upon being notified the host must act expeditiously to remove or to disable access to the infringing material. The mere conduit and host principle were implemented into UK Law with the implementation of the e-Commerce Directive and the InfoSoc Directive. In relation to what constitutes the "authorisation" of infringement, and hence liability, Amstrad is most relevant. The House of Lords found that the intermediary, in this case a hardware manufacturer, had not authorised copyright infringement, as the hardware sold had both legal and illegal uses and "generally speaking, inducement, incitement or persuasion to infringe must identifiably procure a particular infringement" in order to give rise to liability as "joint infringer".
|ECR ss.17 and 18, E-Commerce Directive Articles 12 and 14|
|Is Internet access free of ISP filtering or monitoring for potential copyright-infringements?||Yes
In practice internet access is currently free of such filtering or monitoring, though there are laws which would allow such filtering and monitoring. The E-Commerce Directive states that no general obligation shall be imposed on mere conduits, such as ISPs, and hosts to monitor the information which they transmit or store, or to actively seek facts or circumstances indicating illegal activity. The Regulation of Investigatory Powers Act 2000 provides that it is a criminal offense to intentionally and without lawful authority to intercept a public postal service or a public telecommunication system. Following the implementation of the InfoSoc Directive, ss.97A and 191JA of the 1988 Act now provides for the possibility of an injunction against ISPs “where that service provider has actual knowledge of another person using their service to infringe” copyright. Ss. 17 and 18 of the DEA allows the Secretary of State to introduce secondary legislation which would make ISPs subject to blocking injunctions, forcing them to block access to locations on the internet “from which a substantial amount of material has been, is being or is likely to be made available in infringement of copyright”. Ss 17 and 18 are currently subject to review by Ofcom, the communications regulator, to ascertain whether these provisions would work in practice.
|E-Commerce Directive Article 15, RIPA s.1, InfoSco Directive Article 8(3), 1988 Act ss.97A and 191JA, DEA ss.17 and 18|
|By content creators||Is there any protection for consumers who non-commercially remix or mash up copyright works?||No
There is no fair use, private copying or non-commercial use exceptions in UK copyright law which would allow non-commercial transformative use by consumers.
|May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software?||Yes
The 1988 Act allows for computer programmes to be decompiled if “the permitted objective” is met, ie it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program. The information obtained can not be used for any purpose other than the permitted objective. Decompilation is not allowed under this provision if the information needed to achieve the permitted objective is readily available otherwise and if the decompilation is not confined to acts necessary to achieve the permitted objective. The information obtained through decompilation may not be given to any other person, unless this is necessary to achieve the permitted objective. The 1988 Act provides that the user right to decompile computer programmes for the purpose of achieving interoperability is protected from contractual over-rides, ie it can’t be restricted by the copyright owner through provisions in the terms and conditions.
|1988 Act s.50B, Software Directive|
|Is the incidental inclusion of a work in other material permitted?||Yes
Copyright is not infringed by incidental inclusion in an artistic work, sound recording, film, broadcast and cable programme.
|1988 Act s.31|
|Is there are copyright exception for parody or satire?||No
No, the 1988 Act does not provide for such an exception.
|By the press||Is there a copyright exception for the news of the day?||No
In UK law there is no exception for the 'news of the day' as defined by the Brussels version of the Berne Convention (Article 9(3)).
|May copyright material be reproduced for the purposes of review and criticism?||Yes
The 1988 Act provides for a fair dealing defence that allows for the use of a work or a performance for the purpose of criticism and review, provided the use is accompanied by a ‘sufficient acknowledgment’, and provided that the work has been made available to the public.
|1988 Act s.30(1)|
|May quotations be used for any purpose?||In part
Quotes are permitted under the relevant fair dealing defences for criticism, review and news reporting, provided that the quote is accompanies by 'sufficient acknowledgement'. Case law in relation to criticism and review provides that lengthy extracts from the original work are permitted if the purpose was purely to enable criticism. Case law has also established that the criticism must be directed to the original or another work, not the author.
|1988 Act s.30, Hubbard, Ashdown|
|By Libraries||May libraries copy works if they cannot reasonably be obtained commercially?||No
|May librarians copy works for users for the purpose of research or study?||In part
Broadly speaking 'prescribed' libraries and archives may supply readers with a single copy of published library, dramatic or musical material for the purpose of non-commercial research and private study, provided that the reader makes a signed declaration to that effect and pays a sum not less than the cost attributable to producing the copy.
|1988 Act ss.37–44, CCM, SI 1989/1212|
|Are libraries allowed to make preservation or archive copies of materials in their collections?||Yes
Prescribed library or archive may make a preservation or archive copy of an item in their permanent collection in order to preserve or replace that item, or in order to replace a lost, destroyed or damages item in the permanent collection of another prescribed library or archive. Such preservation or archive copies may only be made where it is not reasonably practicable to purchase a copy of the item in question.
|1988 Act s.42|
|Can lending libraries operate without incurring public lending rights fees to copyright owners?||No
Under the public lending right authors are entitled to remuneration where their works are loaned by public libraries. Authors must register their public lending right and the right persists for the same period as the copyright in the work. To qualify authors must have their principle home in the European Economic Area and the public lending right only applies to books which are "printed and bound". The public lending right was introduced in the UK through the 1979 Act, establishing the public lending right as related right (in countries such as Germany and Austria public lending rights are part of copyright). The 1979 Act established the basis for Public Lending Rights Schemes, which are established through statutory instrument.
|By disabled users||Is it permissible to copy or adapt work for the use of those with disabilities?||Yes
The InfoSoc Directive permits 'uses for the benefit of a 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'. The 1988 Act provides for designated bodies to make copies of broadcasts and issue them to the public with sub-titles for the deaf and hard hearing, or otherwise modified for the special needs of those physically or mentally handicapped in other ways. The 1988 Act was supplemented by the Copyright (Visually Impaired Persons) Act 2002 which allowed the making of accessible copies for the personal use of such a person, provided that he or she has lawful possession or use of a 'master copy' of the work which is accessible as a result of impairment.
|InfoSoc Directive, 1988 Act s.74, VIP|
|In public affairs||Are laws excluded from copyright?||No
The Crown (monarch) is entitled to copyright in every work made by an officer or servant of the Crown in the course of his or her duties. The monarch is entitled to copyright in every Act of Parliament, Act of the Scottish Parliament, Act of the Welsh and Northern Ireland Assemblies. However, the Crown has waived its copyright for UK primary and secondary legislation, which means that although copyright is asserted, Government wishes to encourage the widespread use of the material under the condition that it is reproduced accurately and not in a misleading context, as well as being correctly acknowledged and the source and status of the material is identified.
|1988 Act s.163|
|Are other governmental works either excluded from copyright, or routinely shared under permissive licences?||In part
The Crown (monarch) is entitled to copyright, known as Crown Copyright, in every work made by an officer or servant of the Crown in the course of his or her duties. The Crown has waived its copyright for the following works: public records; government forms (blank forms); the national curriculum material of England; Government press notices and press notices issued by the Scottish parliament; national curriculum material for Wales; acts of the Scottish Parliament, explanatory notes to acts of the Scottish Parliament and Scottish statutory instruments; government consultation documents; Scottish national curriculum documents; information on official websites unless otherwise stated; ministerial speeches and articles; and headline statistics. This means that although copyright is asserted, Government wishes to encourage the widespread use of the material under the condition that it is reproduced accurately and not in a misleading context, as well as being correctly acknowledged and the source and status of the material is identified. In order to facilitate and encourage the re-use of works by public sector bodies the Controller of Her Majesty’s Stationery Office (HMSO) has developed the Open Government Licence, allowing public sector bodies to license the use and re-use of their works. An Open Government Licence grants a worldwide, royalty-free, perpetual, non-exclusive licence. The licence does not affect any exceptions and limitations to copyright or database right provided for in law. The licence requires attribution, but licensed works may not be used in a way that suggests any official status or the endorsement of the public body. The Open Government Licence is interoperable with any Creative Commons Attribution Licence. The use of the Open Government Licence has increased and public sector information is increasingly released on www.data.gov.uk, however the use of the Open Government Licence is not routine.
|1988 Act s.163|
|Are the results of publicly funded research required to be published under an open access licence?||No
However, the UK Government's "Research Strategy for Growth", published in December 2011, expressed support for requiring all publicly funded scientific research to be published in open-access journals.
Freedoms to share and transfer
|Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used?||Yes
|Can public domain works be used without the need for any payment or registration of the use?||Yes
|Does the law make special provision for the legal use of orphaned works?||No
The UK does not currently provides for a orphan works solution. In early 2010 a licensing solution for orphan works was included in the Digital Economy Bill, but the provision was removed from the bill before it became law, ie the DEA.
|Is parallel importation of copyright works permitted?||In part
Parallel imports are subject to EU law, specifically trade mark law. There is no right to control imports between EU Member States of goods already placed on the market in the European Union (EU). However, trade mark law does provide for a right to prevent importation into the EU if these goods have been marketed elsewhere, the so-called Community exhaustion of rights. The European Court of Justice found that Member States cannot introduce or maintain systems such as that of 'international exhaustion' where the first sale anywhere in the world would allow their later import into the EU.
|Trade Marks Directive 1988, Silhouette|
|Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources?||No
The Cabinet Office has made statements to the effect that open source will play a stronger role in the government's information and communication technology strategy, and has launched a consultation on open standards in the public sector in February 2011.
|Are there national programmes or policies that specify or promote the use of open document formats?||No
Administration and enforcement
|What is the maximum penalty for copyright infringement for an individual?||UK law does not clearly distinguish between infringement by a person or corporate entity. Though the maximum penalty for a person infringing copyright in the course of business is £50,000.||1988 Act ss. 107 and 198 as amended by the DEA|
|What is the maximum penalty for copyright infringement for a corporation?||UK law does not clearly distinguish between infringement by a person or corporate entity. Though the maximum penalty for a person infringing copyright in the course of business is £50,000||1988 Act ss. 107 and 198 as amended by the DEA|
|Is innocent infringement of IP treated differently by the law?||In part
Generally lack of intent and knowledge will mean that an individual or organisation is not liable for criminal copyright infringement, ie secondary copyright infringement under the 1988 Act, though ignorance is not a defence or mitigating circumstance in the case of civil copyright infringement, ie primary infringement. However, s.97 of the 1988 Act provides for 'innocent infringers' of copyright in that the copyright owner will not be entitled to damages if it is shown that the defendant at the time of the infringement ‘did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates’.
|1988 Act ss.16-21 (primary infringement), 22-26 (secondary infringement) and 97(1)|
|Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes?||No
No, the provisions in the 1988 Act apply to any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of TPMs. Manufacturing for sale or hire, importing, possession or advertisement of a circumvention device in the course of business, or proving and advertising service which enable the circumvention of TPMs, is a secondary copyright infringement, ie criminal. The fact that the device or service may have had legal uses (circumvention of TPMs is generally illegal under the 1988 Act) is not recognised as defence under the 1988 Act. The only defence provided by the 1988 Act is for the defendant to prove that he did not know, and had no reasonable ground for believing, that the device, product or component; or the service, enabled or facilitated the circumvention of TPMs.
|1988 Act ss.296ZA and 296ZB|
|Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights?||No
The 1988 Act does not allow consumers or other organisations to circumvent TPMs in pursuit of their user rights, ie where the TPM prevents them from exercising their rights under the permitted acts and fair dealing defences.
|1988 Act ss.296-296ZE|
|Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers?||No
No, there is no requirement to disclose information about TPMs to consumers, either under the 1988 Act or consumer law.
|Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds?||No
Final or perpetual injunctions are granted to IP owners if they have proven to the court that the defendant has infringed their rights. An injunction is granted based on the facts of the case and case law indicates instances where an injunction may be refused. This includes instances where the infringement is trivial, the value of the infringement can be adequately compensated in financial terms, and where an injunction would be oppressive on the defendant. Injunctions may also be refused where the claimant is only interested in money or acts vexatious, or where the infringing act is old and there is no further treat. Where licences of IP rights are available to the defendant injunctions are not normally granted. However, the case law on injunctions and public interest is inconclusive. In Roussel-Uclaf an injunction against the sale of a heart drug, which was claimed to be patent infringement, was refused in reference to the public interest, as heart patients would be deprived of the drug. In Chiron the court confirmed that it is appropriate to consider the interest of persons who would be affected by the grant of an injunction, which may involve consideration for the public interest. But the Court held that the public interest may be better served through statutory provisions for this purpose, such as compulsory licensing, and granted the sought injunction. In Biogen, in relation to a vaccine for hepatitis B, an injunction was refused on the basis that it would have led to a loss of lives and/or damage to human health.
|Roussel-Uclad, Chiron, Biogen|
|Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court?||No
The DEA allows the Secretary of State to impose "technical obligations" on ISPs, which may include disconnection, against subscribers who have been placed on a "copyright infringement list" following notifications by copyright owners of suspected copyright infringement. Internet subscribers may appeal to an administrative appeals body and a first tier Tribunal against technical measures being imposed on their internet connection. If the subscriber does not appeal, the technical measure is imposed on the account. There is no requirement for a court hearing in advance of a technical measure.
|DEA, Coms Act|
|Are criminal sanctions limited to cases of large-scale commercial counterfeiting?||No
According to section 107 of the 1988 Act criminal sanctions may also be applied against a person who, otherwise than in the course of a business, infringes copyright 'to such an extent as to affect prejudicially the owner of the making available right'. In 2007 test cases were brought against five users of the BitTorrent tracker OiNK in Teesside Crown Court. In December 2008 four pleaded guilty and were sentenced to community service, fines in default of prison, and had prosecution cost awarded against them. However, it appears that the defendants pleaded guilty to Section 107(1)(e), which is in relation to the distribution of physical articles. The appropriate provision for the making available of digital files is Section 107(2A) of the 1988 Act. Section 107(1)(e) carries a maximum sentence of ten years’ imprisonment and/or an unlimited fine, Section 107(2A) carries a lower maximum sentence of two years’ imprisonment and/or an unlimited fine. The fifth defendant, the 17 year old Matthew Wyatt, who was alleged to have shared three albums and one song, pleaded not guilty and in 2010 his case was dropped by the Crown Prosecution Service. His solicitor said that Wyatt „was the victim of a cynical attempt by the record industry to legitimise its heavy-handed tactics and dubious methods by using police resources and the public purse.”
|1988 Act s.107|
|Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award?||Yes
Generally damage for copyright infringement, as with other tort, intends to restore the victim to the position they would have been in if no wrong had been committed. Damages under UK copyright law do not aim to punish the defendant. The general measure for damages is ‘the depreciation caused by the infringement of the value of the intellectual property right as a chose in action’. With regards to commercial infringement actual damages will be commonly calculated based on lost profits to the copyright owner or on the basis of royalty, ie the licence that the defendant would have paid in normal circumstances. In rare circumstances commercial infringement will also result in damages to compensate the copyright owner for secondary losses, exemplary damages, as well as additional statutory damages, considering the flagrancy of the infringement and the benefits accrued to the defendant as result of the copyright infringement.
|1988 Act s.97 and IPER s.3|
|Is there provision to penalise the wrongful allegation of copyright infringement?||No
No such provision exists in UK copyright law, neither in relation to primary or secondary infringement, nor in relation to hosts who are notified of infringement. Wrongful allegation of copyright infringement may be treated as 'perverting the course of justice' in common law, where aggravating and mitigating factors include: the nature and number of offences, whether premeditated or spontaneous, degree of persistence, arrest of innocent person, any impact upon prosecution. Specific examples include: Threatening or interfering with witnesses, concealing evidence and false allegation of crime resulting in arrest of innocent person.
|Is there provision to penalise the obstruction of consumers' exercise of user rights?||No
|Does the patent system allow for pre-grant opposition?||No
The pre-grant system of opposition was abolished with the 1977 Act and replaced with a post-grant system of revocation and strong examination prior to the Intellectual Property Office (IPO) granting a patent.
Recent or upcoming changes
In November 2010 Prime Minister David Cameron announced the Independent Review of IP and Growth. Led by Prof Ian Hargreaves the review seeks to remove barriers to economic growth and innovation, and update UK copyright law for the digital age. Prof Hargreaves published his “Digital Opportunity – A Review of IP and Growth” in May 2011.
In August 2011 the Government announced its endorsement of Prof Hargreaves’ recommendations to update copyright law and licensing for the digital age. In December 2011 the Intellectual Property Office (IPO) published a comprehensive consultation on implementing Prof Hargreaves’ recommendations on exceptions, a licensing scheme for orphan works, minimum standards for collecting societies and extended collective licensing. The Government appointed Richard Hooper in January 2012 to conduct a feasibility study for Prof Hargreaves’ recommendation on a Digital Copyright Exchange. In the same month the IPO published its final consultation on implementing a small claims track for lower value IP disputes.
Hargreaves made 10 recommendations:
1. Evidence – “Government should ensure that development of the IP System is driven as far as possible by objective evidence. Policy should balance measurable economic objectives against social goals and potential benefits for rights holders against impacts on consumers and other interests. These concerns will be of particular importance in assessing future claims to extend rights or in determining desirable limits to rights."
2. International priorities - "The UK should resolutely pursue its international interests in IP, particularly with respect to emerging economies such as China and India, based upon positions grounded in economic evidence. It should attach the highest immediate priority to achieving a unified EU patent court and EU patent system, which promises significant economic benefits to UK business. The UK should work to make the Patent Cooperation Treaty a more effective vehicle for international processing of patent applications."
3. Copyright licensing - "In order to boost UK firms’ access to transparent, contestable and global digital markets, the UK should establish a cross sectoral Digital Copyright Exchange. Government should appoint a senior figure to oversee its design and implementation by the end of 2012. A range of incentives and disincentives will be needed to encourage rights holders and others to take part. Governance should reflect the interests of participants, working to an agreed code of practice. The UK should support moves by the European Commission to establish a framework for cross border copyright licensing, with clear benefits to the UK as a major exporter of copyright works. Collecting societies should be required by law to adopt codes of practice, approved by the IPO and the UK competition authorities, to ensure that they operate in a way that is consistent with the further development of efficient, open markets."
4. Orphan works - "The Government should legislate to enable licensing of orphan works. This should establish extended collective licensing for mass licensing of orphan works, and a clearance procedure for use of individual works. In both cases, a work should only be treated as an orphan if it cannot be found by search of the databases involved in the proposed Digital Copyright Exchange."
5. Limits to copyright – “Government should firmly resist over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realize all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract."
6. Patent thickets and other obstructions to innovation – “In order to limit the effects of these barriers to innovation, the Government should: take a leading role in promoting international efforts to cut backlogs and manage the boom in patent applications by further extending “work sharing” with patent offices in other countries; work to ensure patents are not extended into sectors, such as non-technical computer programs and business methods, which they do not currently cover, without clear evidence of benefit; investigate ways of limiting adverse consequences of patent thickets, including by working with international partners to establish a patent fee structure set by reference to innovation and growth goals rather than solely by reference to patent office running costs. The structure of patent renewal fees might be adjusted to encourage patentees to assess more carefully the value of maintaining lower value patents, so reducing the density of patent thickets."
7. The design industry – “The role of IP in supporting this important branch of the creative economy has been neglected. In the next 12 months, the IPO should conduct an evidence based assessment of the relationship between design rights and innovation, with a view to establishing a firmer basis for evaluating policy at the UK and European level. The assessment should include exploration with design interests of whether access to the proposed Digital Copyright Exchange would help creators protect and market their designs and help users better achieve legally compliant access to designs."
8. Enforcement of IP rights - "The Government should pursue an integrated approach based upon enforcement, education and, crucially, measures to strengthen and grow legitimate markets in copyright and other IP protected fields. When the enforcement regime set out in the Digital Economy Act 2010 becomes operational next year its impact should be carefully monitored and compared with experience in other countries, in order to provide the insight needed to adjust enforcement mechanisms as market conditions evolve. This is urgent and Ofcom should not wait until then to establish its benchmarks and begin building data on trends. In order to support rights holders in enforcing their rights the Government should introduce a small claims track for low monetary value IP claims in the Patents County Court."
9. Small firm access to IP advice - "The IPO should draw up plans to improve accessibility of the IP system to smaller companies who will benefit from it. This should involve access to lower cost providers of integrated IP legal and commercial advice."
10. An IP system responsive to change – “The IPO should be given the necessary powers and mandate in law to ensure that it focuses on its central task of ensuring that the UK’s IP system promotes innovation and growth through efficient, contestable markets. It should be empowered to issue statutory opinions where these will help clarify copyright law. As an element of improved transparency and adaptability, Government should ensure that by the end of 2013, the IPO publishes an assessment of the impact of those measures advocated in this review which have been accepted by Government.”
Summary of position
UK copyright law is substantially different from that of other countries. It is generally very restrictive and does not provide consumers with a private use right. UK copyright law has last been comprehensively updated in 1988, providing consumers with a time-shifting exception for TV and radio broadcast. Since then UK copyright law has been amended to implement EU copyright Directives. The implementation of the Software Directive led to the introduction of an exception for the back-up of software. When the UK implemented the InfoSoc Directive it chose to narrow existing exceptions to comply with the Directive, but did not take the opportunity to widen existing exceptions to the extent possible under the Directive and to update copyright law with a private use exception or parody exception.
The UK is a member of the EU as well as a common law country, hence copyright law draws on a number of sources including case law. Relevant EU directives have been incorporated into UK law in a variety of ways. Where the statutory (written) law is not clear, case law is the authoritative source of law. UK copyright statutes are drafted as general principle – as a 'conduit pipe' that is more or less indeterminate in scope, hence its interpretation, application and enforcement may be subject to change and there are a number of issues, especially digitally related, where it is not clear how existing statutory law will be interpreted by the courts. UK copyright law does not distinguish between private or corporate copyright infringement. However infringement by consumers is generally treated as a civil offense, where commercial infringement may be treated as civil or criminal offense.
The British parliament enacted the first copyright statute, the 1710 Statute of Anne, or “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Copies, during the Times therein mentioned”. The Statute of Anne formed the basis for early US copyright law and UK copyright law significantly influenced the development of copyright law in common law countries. The Copyright Act 1911, also known as Imperial Copyright Act, established copyright law in the UK and the British Empire.
The 'copyright infringement provisions' of the Digital Economy Act 2010 (sections 3 to 18) have thus far not been implemented through secondary legislation. The provisions would introduce what is known as 'graduated response', which would see internet subscribers being put on 'copyright infringement lists' and possibly disconnected from the internet, and provisions that would allows copyright owners to apply for wide-ranging injunctions to block websites associated with copyright infringement. Sections 3 to 18 are subject to a judicial review brought by the ISPS BT and TalkTalk over concerns that they do not comply with the EU Electronic Commerce Directive (2000/31/EC), the EU Privacy and Electronic Communications Directive (2002/58/EC), the Authorization Directive (98/34/EC); and that they are disproportionate in their impact on ISPs, business and consumers and thus infringe the free movement of services provisions of the Treaty of the Functioning of the European Union and various instruments of EU law, giving effect to Articles 8 and/or 10 of the European Convention of Human Rights relating to privacy and freedom of expression respectively.
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