Ian Brown (ian/at/fipr.org) and
Nicholas Bohm (nbohm/at/ernest.net)
The UK Government is implementing the Directive as a Statutory Instrument amending the Copyright, Designs and Patents Act 1988 under the European Communities Act 1972. This procedure removes the opportunity for Parliament to amend the legislation; it may only accept or reject the S.I.
Given the Government's large majority in
the House of Commons, it is extremely unlikely to fall there. It is also rare
for the House of Lords to reject secondary legislation, but not unknown; the
threat of such rejection forced the Government to withdraw a
surveillance-related S.I. in June 2002.
The Patent Office (the responsible
government agency) initially planned to have the S.I. passed into law by the
Directive's
The UK Government’s basic approach during
negotiations on the Directive was to seek to maintain existing
Under the legislative process being used,
Statutory Instruments may only cover matters required by European legislation;
hence other primary legislation would be needed to introduce optional
exceptions into
Article 5.1, unlike the other provisions
of Article 5, is mandatory: it requires
Member States to provide an exception to the reproduction right for the making
of temporary copies of works (other than computer programs and databases) which
are transient or incidental to the transmission of those works over networks,
or to other lawful uses. Existing
Article 5.2 deals with exceptions limited
to the exclusive right to make copies of a work; Article 5.3 deals with
exceptions to the exclusive right to copy or publish a work.
Paragraphs 5.2 (a) and (b) permit general
exceptions for photocopying or for general copying for private and
non-commercial use, subject to fair compensation. There will be no
Paragraph 5.2 (c) permits specific
copying by publicly accessible libraries, educational establishments or
museums, or by archives, which are not for direct or indirect economic or
commercial advantage. These exceptions already exist in
Paragraph 5.2(d) permits the making of
ephemeral recordings of works by broadcasting organisations for their own
broadcasts and the preservation of these recordings in official archives. This
reflects existing
Paragraph 5.2(e) permits reproductions of
broadcasts made by social institutions pursuing non‑commercial purposes,
such as hospitals or prisons. There will be no
Paragraph 5.3(a) permits use for the sole
purpose of illustration for teaching or scientific research. This reflects
existing
Paragraph 5.3(b) permits use for the
benefit of people with a disability. There will be no immediate
Paragraph 5.3(c) permits use of published
articles or broadcasts on current economic, political or religious topics and
use of works or other subject‑matter in connection with the reporting of
current events. There is an existing UK exception for fair dealing with a work
(other than a photograph) for the purpose of reporting current events, which is
probably narrower than what is permitted by the Directive; there is no proposal
to extend the exception.
Paragraph 5.3(d) permits use of
quotations for purposes such as criticism or review, which corresponds to an
existing UK exception.
Paragraph 5.3(e) permits use for the
purposes of public security or to ensure the proper performance or reporting of
administrative, parliamentary or judicial proceedings. There are existing UK exceptions for
parliamentary and judicial proceedings and for statutory enquiries, and for
certain other administrative purposes. There is no general exception for public
security. There are no proposals to
extend the UK exceptions.
Paragraph 5.3(f) permits use of political
speeches as well as extracts of public lectures to the extent justified by the
informatory purpose. There is an existing UK exception for the use of a record
in any form of spoken words, which may be used for reporting current events or
for broadcasting the work spoken, subject to a number of conditions (giving the
speaker the right to prohibit in advance the making or use of the record, among
other things). The UK exception is somewhat
narrower than that permitted. There is no plan to extend it.
Paragraph 5.3(g) permits use during
religious celebrations or official celebrations organised by a public
authority. There will be no
Paragraph 5.3(h) permits use of works,
such as works of architecture or sculpture, made to be located permanently in
public places. There is a corresponding
Paragraph 5.3(i) permits incidental
inclusion of a work or other subject‑matter in other material. There is a
more limited
Paragraph 5.3(j) permits 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.
There is a more limited
Paragraph 5.3(k) permits use for the
purpose of caricature, parody or pastiche. There will be no
Paragraph 5.3(l) permits use in
connection with the demonstration or repair of equipment. This exception
reflects a small part of an existing
Paragraph 5.3(m) permits 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. This corresponds to an existing
Paragraph 5.3(n) permits 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 publicly accessible libraries, educational establishments or
museums of works and other subject‑matter not subject to purchase or
licensing terms which are contained in their collections. The UK exception for
fair dealing with a literary, dramatic, musical or artistic work for the
purposes of research or private study (which is to be revised slightly to limit
research to non-commercial purposes) covers most of this exception, although
the Directive is not limited to the specific works mentioned in the UK
provisions. There is no proposal to extend the
Article 5.5 provides that the exceptions
and limitations of Article 5 are 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.
This reflects the “three step test” found in Article 13 of the Agreement on
Trade‑Related Aspects of Intellectual Property Rights (1994) WTO and in
Article 10 of the WIPO Copyright Treaty. The
Under section 296 of the Copyright,
Designs and Patents Act 1988 the
However, Articles 1 and 9 of the Directive provide that protection for software must be provided under the Software Directive. The draft legislation would therefore retain these restrictions on devices designed to circumvent copy-protection applied to software. It would not restrict the act of circumventing technology, in order to allow reverse-engineering for interoperability purposes as required by the Software Directive.
For other copyright works, Article 6(1) of the Copyright Directive would be implemented by a new section 296ZA, which equates circumvention of “effective technological measures” by a person “knowing, or having reason to believe, that is the effect of what he is doing” to infringement of copyright. No intent to infringe is required. It would provide the same civil rights of action to the party that had issued a protected work and the copyright owner as the latter would have against an infringing party. These rights would also be available to the owners of performance, publication and database rights.
A new section 296ZB transposes Article 6(2). This would create a criminal offence when a person commits one of the following acts:
(a) makes for sale or hire, or
(b) imports otherwise than for his private and domestic use, or
(c) in the course of a business--
(i) sells or lets for hire, or
(ii) offers or exposes for sale or hire, or
(iii) advertises for sale or hire, or
(iv) possesses, or
(v) distributes, or
(d) distributes otherwise than in the course of a business to such an extent as
to affect prejudicially the copyright owner
any device, product or component
which is primarily designed, produced, or adapted for the purpose of enabling
or facilitating the circumvention of effective technological measures.
This new section
would also create an offence if a person “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.”
It would be a defence under this section for a person to show that “he did not know, and had no reasonable ground for believing” that products or services “enabled or facilitated the circumvention of effective technological measures.” Note also that non-commercial creation and import for private and domestic use of circumvention devices would be permitted. Non-commercial distribution would be allowed on a small scale if it would not prejudicially affect the copyright owner.
S.296ZC also provides the same civil rights of action against a person committing the acts in s.296ZB to the issuers and owners of protected copyright works as the latter has in the case of infringement.
The definitions of Article 6(3) are included in s.296ZD. A technological measure is defined as “any technology, device or component which is intended, in the normal course of its operation, to protect a copyright work”. A measure is deemed “effective” when use of the work is protected 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.
The draft mechanism
to implement Article 6.4 (allowing beneficiaries of specific exceptions to
exercise them with a legally-acquired work protected using a technical measure)
was one of the most contentious aspects of the government’s proposals. Under
section XXX, a beneficiary must first wait an undefined period for voluntary
agreements to be concluded by rightsholders. If those are not forthcoming, they
may complain to the Secretary of State. She may then issue a direction to the
rightsholder that they provide the beneficiary with such a mechanism. If these
directions are ignored, the beneficiary has a right of action against the
rightsholder for breach of statutory duty.
Beyond this
procedure, there are no specific protections for free speech or privacy rights
against technological protection measures. However, the UK Human Rights Act 1998
(implementing the European Convention on the Protection of Human Rights and
Fundamental Freedoms) will allow courts to read the provisions of the copyright
legislation in a way that is consistent with rights of free speech and privacy.
If this cannot be done, the court may notify Parliament that the legislation
should be changed to provide these rights. The Data Protection Act 1998, which
implements the EU Data Protection Directive, will also apply.
There was no specific
protection for research activities in the first draft of the legislation.
However, the government has indicated that it will look at this issue carefully
and may provide such a mechanism in the second draft, which is due “as soon as
possible”[2].
Subsection XXX(9)
transposes Article 6 subsection (4)(4) by excluding “copyright works made
available by an on-demand service” from this procedure. Performance, publication and database rights are also covered. An
“on-demand service” is defined very widely in section 20 as “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.” But it
is not clear that this definition (from Part I of the modified Act) would apply
to this subsection (intended to be located in Part VII of the Act).
Copyright infringement is actionable in
the civil courts by rightsholders, whose remedies consist of damages for loss
caused by an infringement or alternatively recovery of the profit made by the
infringer. Infringers may also be restrained by injunction from further
infringement, and ordered to destroy or deliver to rightsholders any infringing
copies or materials. Disobedience of
court orders may be punished by unlimited fines or imprisonment. Those who knowingly circumvent copy protection
technology or remove digital rights management information from copyright works
are liable as infringers.
Criminal penalties are imposed for
commercial or large-scale dealings with infringing copies. The more serious
offences can attract sentences of up to ten years’ imprisonment and unlimited
fines. The penalties for lesser offences are up to six months’ imprisonment and
limited fines.
Criminal penalties are also imposed for
commercial or large-scale dealings in devices for circumventing copy-protection
technology or the provision of circumvention services: sentences can be up to
two years’ imprisonment and unlimited fines.
The government consultation over the
implementation of the Directive received over 300 responses. We have summarized
the responses of a range of groups on different sides of the argument below.
The Foundation
for Information Policy Research is an independent body that studies the
interaction between information technology and society.
FIPR's consultation response[3]
was based around six different areas. It emphasised the relevance of
competition policy, and that the implementation should not protect technology
protection measures used in non-copyright systems (such as forcing the use of
particular ink cartridges or mobile phone batteries). The implementation should
fully respect the reverse engineering provisions in the EU Software Directive
for both software and file formats. Users should be allowed to restrict the use
of their personal information in DRM systems. Open source software must be
included in exceptions for “commercially significant” purposes. A clear and
broad exemption for security research should be included, and any prosecutions
made under anti-circumvention powers should require the approval of the
Attorney General, to ensure that wider public policy interests are considered.
The definition of "on-demand" service was very wide, and any material
available from such a service was exempt from all of the Article 5 exceptions
(check incidental/transient copies). Finally, beneficiaries prevented from
exercising exceptions by technological protection measures (whether disabled
users, libraries or any other group) should have a direct right of action
against the rightholder, rather than first have to appeal to the Secretary of
State.
The Campaign
for Digital Rights “campaigns for fair and balanced laws for the
information society” and has been the main body campaigning on behalf of the
general public. CDR's analysis of the
draft UK implementation[4]
makes five main points:
·
Cryptography research must be
protected, as recital 48 of the Directive states. Research into the
effectiveness of security algorithms and systems should not be prevented merely
because they might be used in a technological protection mechanism. The
Government’s draft implementation would have created civil and criminal penalties
for circumventing those mechanisms.
·
Music studios, broadcasters and
other media organisations routinely need to copy media as part of their
business functions (e.g. making copies of songs to create a playlist for a
radio station). They should be exempted from anti-circumvention rules, as
should the manufacturers or tools they need to perform those circumventing
acts.
·
The draft implementation forces
beneficiaries of exceptions to appeal to the Secretary of State of
technological protection measures prevent their use of those exceptions. The
Secretary of State may then choose to instruct the rightholder to provide some
means of doing so. This Secretary of State could be deluged with such appeals.
Instead, frustrated beneficiaries should immediately be able to seek a remedy
through the courts.
·
Software developers could be
put in a precarious position. Developers may need to circumvent technological
protection measures in order to reverse-engineer a piece of software or its
file formats, which is explicitly allowed by under current UK and European law
for interoperability purposes. The implementation must not make such
circumvention, or the tools necessary to perform it, illegal.
·
Copyright is a limited
monopoly; works eventually re-enter the public domain. This will not
automatically be the case when a work is protected using technological
measures, unless those measures are circumvented. While this may be legal once
a work is out of copyright, it may not be possible – particularly if the
rightholder has long since gone out of business. Works should therefore be
provided in unprotected form to archivists who will be able to make them
available to the public once the copyright has expired.
The Libraries
and Archives Copyright Alliance is a grouping of professional bodies
working in these fields, along with visually impaired and educational users. It
includes such well-known institutions as the British Library.
LACA feels[5],
since the Directive took the wrong approach in protecting technical measures
even against the exercise of fair dealing rights, that a good implementation of
Article 6(4) is critical. They argue that “creators in every field of endeavour
are also users of copyrighted materials. A lack of access to them, where the
original author suffers no significant damage, will in turn impede or even
obstruct research and the making of further works. It is important therefore
that the beneficiaries of the exceptions are not injured by legislation
intended to prevent infringement.”
The draft UK implementation did not meet
this test. It imposed no duty on the Secretary of State to take timely action
or enforce directions given, nor allowed an appeal against their decisions. It
also prevented classes of persons affected by a technical measure from taking
collective action or benefitting collectively from a Direction. While the
Copyright (Visually Impaired Persons) Act provides some exceptions for visually
impaired users, a wider exception for other classes of disability is required
under Article 5.3(b). LACA suggested that a better implementation would allow
users and libraries to circumvent technical measures if the Secretary of State
gave directions to a rightsholder that were ignored. This would require the
legal availability of tools that allowed this circumvention.
LACA is particularly concerned that the
UK's draft implementation excludes fair dealing rights from material delivered
through an on-demand service, and feels that “electronic delivery as a medium
is assigned undue and undeserved importance.” They consider that the article
6.4.4 exclusion should only apply to the on-demand delivery of films and other
such broadcasts. Electronic publication of literary works should not come under
this category.
LACA suggests that an important provision
to introduce into copyright law in future would nullify contractual provisions
removing fair dealing rights. This is already the case in Ireland, and has been
recently recommended by Australia's Copyright Law Review Committee.
The Royal
National Institute of the Blind is the UK's largest voluntary agency
providing services for visually impaired people and challenging barriers to
their full participation in society.
The RNIB's view[6]
is that "complete and unhindered access to information" is vital to
this goal. Its main concern with implementation of the Directive is therefore
with article 6.4 – the process by which beneficiaries of exceptions may
exercise them when restricted by technical measures.
The RNIB argues that there must be an
explicit duty on the Secretary of State to respond to complaints in a fair and
considered manner. Directions made in response to complaints should apply to
the class of persons affected rather than individuals. There should also be a
right of appeal if the Secretary of State does not respond adequately to a
complaint.
The Government should actively support
the exercise of directions given in response to a complaint. Otherwise the cost
of doing so would fall on individual complainants, and encourage rightsholders
to ignore the directions. It should also be made clear where actions against
noncompliant rightsholders would be taken – the courts, Copyright Tribunal or
elsewhere. There should be a deadline set for compliance with directions, as
the complainant may need immediate access to a work for study or employment
purposes.
The RNIB's greatest concern is with the
implementation of the “on-demand service” exemption for exceptions. Such
services must be defined narrowly, and should not include materials accessed
through the World Wide Web. Disabled persons must have a mechanism by which
they can circumvent technical measures impeding equitable access to information
on the Web.
The British
Phonographic Industry is a trade association body with hundreds of members
from the UK recording industry. They have four main aims: the fight against
piracy; rights negotiation and legal advice; industry promotion; and the
provision of key statistics on the industry.
The BPI's arguments[7]
are centred on the contribution of the British music industry to the UK
economy, and its concerns that digitisation of the music market could reduce
this contribution if new controls are not introduced. They argue that the
implementation of the Directive must enable the development of new technology
and hence online markets, incentivise the record industry to develop its
relationship with consumers, protect artists from theft and develop the
cultural diversity of Britain's music.
Most important for these requirements are
limits on exceptions under Article 5. The BPI suggest that only the compulsory
exceptions in the Directive should be implemented; that the temporary copyright
exception (5.1) should be implemented verbatim; that all of the 5.2(b)
restrictions on exceptions must be implemented, and that existing private use
exemptions must not be extended. They also argue that the Berne “three-step
test” repeated as Article 5.5 should be explicitly included in UK law to allow
the courts to interpret and restrict exemptions based on specific circumstances
of their use.
The BPI states that strong protection of
technical measures under Articles 6 and 7 is also vital. These are important “to
the growth of new e-business” and “enable record companies to create a wide
range of listening or copying options for the consumer.” The implementation
should broaden existing controls on the provision of devices that circumvent
controls or remove rights management information, and even information on how
to do so.
Also necessary would be the introduction
of a specific new right of “making available” rather than adaptation of
existing broadcasting and cable television rights, which contain exceptions
such as “time shifting” which the BPI argues are not appropriate for online
music services. It claims that without this right, the music business would
leave the
[1] http://www.patent.gov.uk/about/consultations/eccopyright/impact.htm
[2] http://www.patent.gov.uk/copy/notices/implementation.htm,
dated 18 June 2003.
[3] http://www.fipr.org/copyright/FIPR.html
[4] http://ukcdr.org/issues/eucd/ukimpl/
[5] http://www.cilip.org.uk/committees/laca/responses_poc.html
[6] http://www.rnib.org.uk/campaign/eucopyright.htm
[7] http://www.bpi.co.uk/legal/lobbying.html