Following an EU Directive, there have been some changes to UK copyright law. We report on these, focusing on tweaks to the ‘fair dealing’ defence to copyright infringement.
Background:
In 2001 the EU Council of Ministers signed off Copyright Directive 2001/29/EC ("the Directive") "to harmonise certain aspects of copyright and related rights in the information society".
The Directive was designed to update and harmonise the copyright laws of the 15 EU member states for the digital age.
How the law will change:
None of the changes will have any major impact on the advertising or marketing process itself.
Media neutral rights
In separate arenas, concerns over whether making material available on the internet came within existing legal definitions of "broadcasting" or "transmitting by cable" have been swept away by the introduction of broader rights for copyright holders. For instance, they now have a right to prevent any electronic "communication" to the public of their works without their prior consent. The regulations also make communication of works or performances to the public a criminal offence where the infringer knows or has reason to believe that he is infringing.
More rights against copyists
Another change gives rights of action against people overcoming copy protection measures such as those sometimes used on CDs and DVDs. These rights can be exercised by distributors of content, owners of the rights in content as well as owners of the rights in copy protection technology.
More licensee rights
A separate change will for the first time allow non-exclusive copyright licensees to issue proceedings for copyright infringement. Previously in the UK, only copyright owners and exclusive licensees could do this. Now, so long as the non-exclusive licence is in writing and expressly grants the right to bring action and the conduct complained of is directly connected to the licensed act, the non-exclusive licensee can take action.
Narrower "fair dealing" defence
Perhaps most likely to be of concern to marketers and advertisers in the day to day running of their businesses is the change to the "fair dealing" defence to an action for copyright infringement.
Under the Copyright, Designs and Patents Act 1988, there was a "fair dealing" defence for those copying substantial parts of literary, artistic, dramatic or musical works. It stated that even if you copied a substantial part of the literary work (for instance by photocopying a complete article in a newspaper or trade journal) you would still have a complete defence to a copyright infringement action, provided you could show that the copying was fair and was "for the purposes of research or private study".
Because the word "private" came before "study" and not before "research", the common understanding was that even if the "research" in question was for commercial purposes, the fair dealing defence would apply, provided of course that it could be shown that it was "fair".
By way of illustration, if the "dealing" in question was by a competitor of the copyright owner and could be shown to cause material damage to the copyright owner's business, then it was unlikely to be regarded as "fair" and the fair dealing defence would fall away.
On the other hand, some US case law on similar legislation appeared to point firmly in the direction of the fair dealing defence only applying where the research was for a private, non commercial purposes. Was the position the same in the UK and was it only "pure research" with no commercial motive that fair dealing applied to?
Now, all uncertainty on the point has been swept away.
Under the new law, the only type of research to which the fair dealing defence will apply is "research for non commercial purposes".
So if the copying of that newspaper or magazine article is done so that the copy can be sent to the client or included in survey or research reports, then it will clearly not come within the fair dealing defence, and the copier will have to fall back on the argument that only an insubstantial copy has been taken and therefore copyright has not been infringed anyway.
Remember here that the test of what is "substantial" is a quality, not a quantity test, so it is not a question of counting the number of lines or words that have been taken, but how significant a part of the original piece has been copied or reproduced.
All businesses should urgently review their copying policies and their contracts with the Newspaper Licensing Agency and the Copyright Licensing Agency. These are the bodies that collectively represent respectively the owners of the copyright in newspapers and newspaper content and the owners of the copyright in other published works including magazines, periodicals and books.
What happens next:
The new laws came into force on 31 October 2003.
