The UK implementation of the EU Copyright Directive

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The UK implementation of the EU Copyright Directive

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Draft UK Government proposals

The following is the published text of draft amendments to the 1988 Copyright Designs and Patents Act.

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
(c) a broadcast.

(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 copyright in another broadcast."

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 copyright work, and reword accordingly. For example, in the 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

(c) To replace certain other references to the acts of 'broadcasting or inclusion in a cable programme service' by a reference to the act of 'broadcasting' only. For example, in the following provisions:

ss.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"

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 copyright in the work provided that it is accompanied by 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, Sch.2, para.2 (Criticism, review and news reporting)

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;
(c) the rental or lending of copies of the work 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, Sch.2, para.4 (Things done for purposes of instruction or examination)

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
(c) is accompanied by a sufficient 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, or
(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,
(c) is not done by means of a reprographic 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, Sch.2, para.6 (Recording of broadcasts by educational establishments)

4.4.1 Sub-paragraph (1) of paragraph 4 of Schedule 2 would be amended, and a new sub-paragraph (1A) added, 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 copyright in the broadcast, or in any work included in 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."

[Subsections (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 copyright in the typographical arrangement of the 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, Section 39, Section 43, SI 1989 No. 1212 (Libraries and archives)

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

(c) that persons to whom copies are supplied 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, SI 1989 No.1012 (Recordings of folksongs)

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, Sch.2, para.15 (Playing of sound recordings for purposes of club, society &c)

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	(Rights of performer as regards recording of live performances and copying of recordings: rights of persons with recording rights as regards recording of performances)
	Section 182A
	Section 186

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

Devices designed to circumvent copy-protection applied to computer programs

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 copyright owner, in a form where effective 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 copyright owner has in respect of an infringement of copyright.

(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 copyright) and

(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
(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.

(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--

(b) a person (B)--

(i) makes for sale or hire, or

(ii) imports otherwise than for his private and domestic use, or

(iii) 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

(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 copyright owner,

the purpose of which is to 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 copyright owner has in respect of an infringement of copyright.

(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.

(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 copyright), and

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 copyright) as it applies to proceedings for infringement 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

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 copyright work the subject of the complaint 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;

"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 copyright.

(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 copyright.

(3) A person issuing or communicating the copies to the public has the same rights against (D) and (E) as a copyright owner has in respect of an infringement of copyright.

(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 copyright), and

(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 copyright owner which identifies the work, the author or 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

(c) if during that period the recording is not published 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.

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