Copyright, Designs and Patents Act 1988
Encyclopedia
The Copyright, Designs and Patents Act 1988 (c. 48), also known as the CDPA, is an Act
of the Parliament of the United Kingdom
which received Royal Assent
on 15 November 1988. It reformulates almost completely the statutory basis of copyright law
(including performing rights
) in the United Kingdom
, which had, until then, been governed by the Copyright Act 1956
(c. 74). It also creates an unregistered design right
, and contains a number of modifications to the law of the United Kingdom on Registered Designs and patent
s.
Essentially, the 1988 Act and amendment establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published (fifty years for computer-generated works).
although the Copyright Acts of 1911 (c. 46)
and 1956 (c. 74)
continue to have some effect in limited circumstances under ss. 170 & 171 and Schedule 1. It brings United Kingdom law into line with the Berne Convention for the Protection of Literary and Artistic Works
, which the UK signed more than one hundred years previously, and allowed the ratification of the Paris Act of 1971.
(s. 157). It has also been extended, with consequential amendments, by Order in Council to Bermuda
and Gibraltar
. Works originating (by publication or nationality/domicile of the author) in the Isle of Man
or the following former dependent territories qualify for copyright under the Act: Antigua
, Dominica
, Gambia, Grenada
, Guyana
, Jamaica
, Kiribati
, Lesotho
, St. Christopher-Nevis, St. Lucia, Swaziland
and Tuvalu
. All other countries of origin whose works qualified for United Kingdom copyright under the UK Copyright Act 1911
, also known as the Imperial Copyright Act of 1911, or the 1956 Acts continue to qualify under this Act (para. 4(3) of Schedule 1).
The following works are exempted from copyright by the transitional provisions of Schedule 1:
The Act as it received Royal Assent does not substantially change the qualification requirements of the author or the country of origin of the work, which are restated as ss. 153–156: these have since been largely modified, in particular by the Duration of Copyright and Related Rights Regulations 1995 No. 3297.
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961. These rights are retrospective in respect of performances before commencement on 1 August 1989 (s. 180). These rights have been largely extended by the transposition of European Union directive
s and by the application of the WIPO Performances and Phonograms Treaty
: the section below describes only the rights which were created by the Copyright, Designs and Patents Act 1988 itself.
A performer has the exclusive right to authorise the recording and/or broadcast of his performances (s. 182). The use or broadcast of recordings without the performer's consent (s. 183) and the import or distribution of illicit recordings (s. 184) are also infringements of the performer's rights. A person having an exclusive recording contract over one or more performances of an artist holds equivalent rights to the performer himself (ss. 185–188). Schedule 2 lists the permitted acts (limitations) in relation to these rights.
Rights in performances last for fifty years from the end of the year in which the performance was given (s. 191). They may not be assigned or transferred, and pass to the performer's executors on death (s. 192). An infringement of rights in performances is actionable under the tort
of breach of statutory duty. Orders are available for the delivery up (Scots law
: delivery) and disposal of infringing copies (ss. 195, 204): holders in rights in performances may also seize such copies (s. 196). The making, dealing in or use of infringing copies is a criminal offense (s. 198), as is the false representation of authority to give consent (s. 201).
The duration of copyright in the following types of work continued to be governed by the 1956 Act:
— however these transitional provisions were largely cancelled by the 1995 Regulations, which in many cases caused lapsed UK copyrights to be revived.
Copyright in the following types of work lasts until 31 December 2039:
Section 301 and Schedule 6 contain an unusual, perpetual
grant of the rights to collect royalties, proposed by Lord Callaghan of Cardiff
, enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan
" whose author, J. M. Barrie
, had gifted his copyright to the hospital in 1929, later confirmed in his will. The amendment was proposed when Peter Pan's copyright first expired on 31 December 1987, 50 years after Barrie's death, which was the copyright term
at that time. Following EU legislation extending the term to author's life + 70 years, Peter Pan's copyright was revived in 1996 and expired on 31 December 2007 in the UK, where Great Ormond Street Hospital's right to remuneration in perpetuity now prevails.
defences to copyright infringement, notably fair dealing
and the public interest defence
, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of statutory authority
is specifically maintained in section 50. This chapter of the Act has been substantially modified, notably by the Copyright and Related Rights Regulations 2003
No. 2498 transposing the EU Copyright Directive: the description below is of the Act as it received Royal Assent.
or statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the European Patent Office
and by the World Intellectual Property Organisation under the Patent Cooperation Treaty
, and material held as public records
under the Public Records Act 1958
c. 51 or similar legislation (s. 49).
s, e.g. defamation, passing off
, malicious falsehood
. The author's moral rights are:
The moral rights of an author cannot be transferred to another person (s. 94) and pass to his heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of work last for twenty years after a person death, the other moral rights last for the same period as the other copyright rights in the work (s. 86).
, that is the copyright in works of the United Kingdom government, and abolishes the perpetual Crown copyright in unpublished works of the Crown. It also creates the separate concept of Parliamentary copyright
for the works of the Parliament of the United Kingdom
and the Scottish Parliament
, and applies similar rules to the copyrights of certain international organisations.
Crown copyright last for fifty years after publication, or 125 years after creation for unpublished works (s. 163): however, no unpublished works of the Crown will come into the public domain
until 31 December 2039, that is fifty years after the commencement of section 163. Acts of the United Kingdom and Scottish Parliaments and Church of England Measures are protected by Crown copyright for fifty years from Royal Assent (s. 164). Works of the Parliaments of the United Kingdom and of Scotland, except Bills and Acts, are protected by Parliamentary copyright for fifty years after creation: Bills are protected from the date of their introduction to the date of Royal Assent or of rejection (ss. 165–167, Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676). The works of the United Nations
and its specialised agencies and of the Organisation of American States are protected for fifty years after creation (s. 168, Copyright (International Organisations) Order 1989 No. 989).
of breach of statutory duty (s. 103). Damages
will not be awarded against an "innocent" defendant, i.e. one who did not know and had no reason to know that the work was under copyright, but other remedies (e.g. injunction
, account of profits
: Scots law
interdict, accounting and payment of profits) continue to be available (s. 97, see Microsoft v Plato Technology). Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 99, 114): copyright owners may also seize such copies (s. 100). The making, dealing in or use of infringing copies is a criminal offence (s. 107). Copyright owners may ask the HM Revenue and Customs to treat infringing copies as "prohibited goods", in which case they are prohibited from import (s. 111). Section 297 of the Act makes it an offense to fraudulently receive broadcasts for which a payment is required. Section 300 creates the offense of fraudulently using a trademark, inserted as ss. 58A–58D of the Trade Marks Act 1938 c. 22.
amended the CDPA to provide an additional right of performers to require consent before making copies of their performances available to the public by electronic transmission.
The penalties for these copyright infringement offences may include:
as a continuation of the tribunal established under s. 23 of the 1956 Act (s. 145). The Tribunal is empowered (s. 149) to hear and determine proceedings concerning:
An appeal on any point of law lies to the High Court
, or to the Court of Session
under Scots law
.
. To qualify, the design must be original (not commonplace in the field in question) and not fall into one of the excluded categories (s. 213(3)):
The design must be recorded in a document after 1989-08-01 (s. 213(6)): designs recorded or used before that date do not qualify (s. 213(7)).
The design right lasts for fifteen years after the design is recorded in a document, or for ten years if articles have been made available for sale (s. 216).
c. 88. The criteria for registration of a design and the duration of the registered design right (ss. 1 & 8 of the 1949 Act) are notably modified. Provisions are also added to allow ministers to take action to protect the public interest in monopoly
situations (s. 11A of the 1949 Act) and to provide for compensation for Crown use of registered designs (para. 2A to Schedule 1 to the 1949 Act). A consolidated version of the Registered Design poocluded (s. 273, Schedule 4).
privilege
of their communications with clients from disclosure in court. Part VI of the act creates a system of patents county court
s for proceedings involving patents which are of a lesser financial implication.
The Copyright, Designs and Patents Act 1988 (Commencement No. 2) and (Commencement No. 3) Orders 1989 are technical measures to allow the preparation of secondary legislation.
in order to implement European Union directive
s in UK law.
Also:
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
which received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 15 November 1988. It reformulates almost completely the statutory basis of copyright law
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
(including performing rights
Performing rights
Performing rights are the right to perform music in public. It is part of copyright law and demands payment to the music’s composer/lyricist and publisher . Public performance means that a musician or group who is not the copyright holder is performing a piece of music live, as opposed to the...
) in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, which had, until then, been governed by the Copyright Act 1956
Copyright Act 1956
The Copyright Act 1956 is an Act of the Parliament of the United Kingdom which received its Royal Assent on 5 November 1956. The Copyright Act 1956 expanded copyright law in the UK and was passed in order to bring UK copyright law in line with international copyright law and technological...
(c. 74). It also creates an unregistered design right
Design right
Design right is a sui generis intellectual property right in British law. There are two types of design rights: the registered design right and the unregistered design right....
, and contains a number of modifications to the law of the United Kingdom on Registered Designs and patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s.
Essentially, the 1988 Act and amendment establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published (fifty years for computer-generated works).
The Act
Part 1 of the Act "restates and amends" (s. 172) the statutory basis for United Kingdom copyright law,although the Copyright Acts of 1911 (c. 46)
Copyright Act 1911
The Copyright Act 1911, also known as the Imperial Copyright Act of 1911, is an Act of the Parliament of the United Kingdom which received Royal Assent on 16 December 1911. The act established copyright law in the UK and the British Empire...
and 1956 (c. 74)
Copyright Act 1956
The Copyright Act 1956 is an Act of the Parliament of the United Kingdom which received its Royal Assent on 5 November 1956. The Copyright Act 1956 expanded copyright law in the UK and was passed in order to bring UK copyright law in line with international copyright law and technological...
continue to have some effect in limited circumstances under ss. 170 & 171 and Schedule 1. It brings United Kingdom law into line with the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, which the UK signed more than one hundred years previously, and allowed the ratification of the Paris Act of 1971.
Territorial application
Part I of the Act (copyright provisions) extends to the whole of the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
(s. 157). It has also been extended, with consequential amendments, by Order in Council to Bermuda
Bermuda
Bermuda is a British overseas territory in the North Atlantic Ocean. Located off the east coast of the United States, its nearest landmass is Cape Hatteras, North Carolina, about to the west-northwest. It is about south of Halifax, Nova Scotia, Canada, and northeast of Miami, Florida...
and Gibraltar
Gibraltar
Gibraltar is a British overseas territory located on the southern end of the Iberian Peninsula at the entrance of the Mediterranean. A peninsula with an area of , it has a northern border with Andalusia, Spain. The Rock of Gibraltar is the major landmark of the region...
. Works originating (by publication or nationality/domicile of the author) in the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...
or the following former dependent territories qualify for copyright under the Act: Antigua
Antigua
Antigua , also known as Waladli, is an island in the West Indies, in the Leeward Islands in the Caribbean region, the main island of the country of Antigua and Barbuda. Antigua means "ancient" in Spanish and was named by Christopher Columbus after an icon in Seville Cathedral, Santa Maria de la...
, Dominica
Dominica
Dominica , officially the Commonwealth of Dominica, is an island nation in the Lesser Antilles region of the Caribbean Sea, south-southeast of Guadeloupe and northwest of Martinique. Its size is and the highest point in the country is Morne Diablotins, which has an elevation of . The Commonwealth...
, Gambia, Grenada
Grenada
Grenada is an island country and Commonwealth Realm consisting of the island of Grenada and six smaller islands at the southern end of the Grenadines in the southeastern Caribbean Sea...
, Guyana
Guyana
Guyana , officially the Co-operative Republic of Guyana, previously the colony of British Guiana, is a sovereign state on the northern coast of South America that is culturally part of the Anglophone Caribbean. Guyana was a former colony of the Dutch and of the British...
, Jamaica
Jamaica
Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic...
, Kiribati
Kiribati
Kiribati , officially the Republic of Kiribati, is an island nation located in the central tropical Pacific Ocean. The permanent population exceeds just over 100,000 , and is composed of 32 atolls and one raised coral island, dispersed over 3.5 million square kilometres, straddling the...
, Lesotho
Lesotho
Lesotho , officially the Kingdom of Lesotho, is a landlocked country and enclave, surrounded by the Republic of South Africa. It is just over in size with a population of approximately 2,067,000. Its capital and largest city is Maseru. Lesotho is a member of the Commonwealth of Nations. The name...
, St. Christopher-Nevis, St. Lucia, Swaziland
Swaziland
Swaziland, officially the Kingdom of Swaziland , and sometimes called Ngwane or Swatini, is a landlocked country in Southern Africa, bordered to the north, south and west by South Africa, and to the east by Mozambique...
and Tuvalu
Tuvalu
Tuvalu , formerly known as the Ellice Islands, is a Polynesian island nation located in the Pacific Ocean, midway between Hawaii and Australia. Its nearest neighbours are Kiribati, Nauru, Samoa and Fiji. It comprises four reef islands and five true atolls...
. All other countries of origin whose works qualified for United Kingdom copyright under the UK Copyright Act 1911
Copyright Act 1911
The Copyright Act 1911, also known as the Imperial Copyright Act of 1911, is an Act of the Parliament of the United Kingdom which received Royal Assent on 16 December 1911. The act established copyright law in the UK and the British Empire...
, also known as the Imperial Copyright Act of 1911, or the 1956 Acts continue to qualify under this Act (para. 4(3) of Schedule 1).
Works subject to copyright
The Act simplifies the different categories of work which are protected by copyright, eliminating the specific treatment of engravings and photographs.- literary, dramatic and musical works (s. 3): these must be recorded in writing or otherwise to be granted copyright, and copyright subsists from the date at which recording takes place
- artistic works (s. 4): includes buildings, photographs, engravings and works of artistic craftsmanship.
- sound recordings and films (s. 5)
- broadcasts (s. 6): a broadcast is a transmission by wireless telegraphy which is intended for, and capable of reception by, members of the public.
- cable programmes (s. 7). A cable programme is a part of a service which transmits images, sound or other information to two or more different places or to members of the public by any means other than wireless telegraphy. There are several exceptions, including general Internet use, which may be modified by Order in Council.
- published editions (s. 8) means the published edition of the whole or part of one or more literary, dramatic or musical works.
The following works are exempted from copyright by the transitional provisions of Schedule 1:
- artistic works made before 1 June 1957 which constituted a design which could be registered under the Registered Designs Act 1949Registered Designs Act 1949The Registered Designs , Act, 1949 was an act in the United Kingdom concerning copyright and related rights, industrial designs, patents, protection of undisclosed information. The purpose of the act was to consolidate certain enactments relating to registering designs...
c. 88 (or repealed measures) and which was used as a model for reproduction by an industrial process (para. 6); - films made before 1 June 1957: these are treated as dramatic works (if they so qualify under the 1911 Act) and/or as photographs (para. 7);
- broadcasts made before 1 June 1957 and cable programmes transmitted before 1 January 1985 (para; 9).
The Act as it received Royal Assent does not substantially change the qualification requirements of the author or the country of origin of the work, which are restated as ss. 153–156: these have since been largely modified, in particular by the Duration of Copyright and Related Rights Regulations 1995 No. 3297.
Rights in performances
Part II of the Act creates a series of performers' rights in application of theRome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961. These rights are retrospective in respect of performances before commencement on 1 August 1989 (s. 180). These rights have been largely extended by the transposition of European Union directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
s and by the application of the WIPO Performances and Phonograms Treaty
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...
: the section below describes only the rights which were created by the Copyright, Designs and Patents Act 1988 itself.
A performer has the exclusive right to authorise the recording and/or broadcast of his performances (s. 182). The use or broadcast of recordings without the performer's consent (s. 183) and the import or distribution of illicit recordings (s. 184) are also infringements of the performer's rights. A person having an exclusive recording contract over one or more performances of an artist holds equivalent rights to the performer himself (ss. 185–188). Schedule 2 lists the permitted acts (limitations) in relation to these rights.
Rights in performances last for fifty years from the end of the year in which the performance was given (s. 191). They may not be assigned or transferred, and pass to the performer's executors on death (s. 192). An infringement of rights in performances is actionable under the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of breach of statutory duty. Orders are available for the delivery up (Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
: delivery) and disposal of infringing copies (ss. 195, 204): holders in rights in performances may also seize such copies (s. 196). The making, dealing in or use of infringing copies is a criminal offense (s. 198), as is the false representation of authority to give consent (s. 201).
Duration of copyright
The provisions on duration have been largely modified by the Duration of Copyright and Related Rights Regulations 1995 No. 3297. The provisions of the 1988 Act (ss. 12–15) as it received Royal Assent are given below. All periods of copyright run until the end of the calendar year in which they would otherwise expire. The duration of copyright under the 1988 Act does not depend on the initial owner of the copyright, nor on the country of origin of the work. The following durations do not apply to Crown copyright, Parliamentary copyright or the copyright of international organisations.| Literary, dramatic, musical or artistic works | s. 12 | Copyright lasts for seventy years from the death of the author. If the author is unknown, copyright expires seventy years after the work is first made available to the public (The Duration of Copyright and Rights in Performances Regulations 1995 amended these durations from the previous period of fifty to seventy years). If the work is computer-generated, copyright expires fifty years after the work is made. |
| Sound recordings and films | s. 13 | Copyright lasts for fifty years after the recording is made.If the recording or film is released (published, broadcast or shown in public) within this period, the copyright lasts for fifty years from the date of first release. Note that the Duration of Copyright and Rights in Performances Regulations 1995 amended the durations, for films only, to seventy years from the death of the last principal director, author or composer. If the film is of unknown authorship: seventy years from creation, or if released within this period, seventy years from first release. |
| Broadcasts and cable programmes | s. 14 | Copyright lasts for fifty years after the first broadcast or transmission. The repeat of a broadcast or a cable programme does not generate a new copyright period. |
| Typographical arrangements | s. 15 | Copyright lasts for twenty-five years after the edition is published. |
Transitional provisions
These provisions apply to works existing on 1 August 1989, other than those covered by Crown copyright or Parliamentary copyright (paras. 12 & 13 of Schedule 1).The duration of copyright in the following types of work continued to be governed by the 1956 Act:
- literary, dramatic and musical works published posthumously;
- engravings published posthumously;
- published photographs and photographs taken before 1 June 1957;
- published sound recordings and sound recordings made before 1 June 1957;
- published films and registered films;
- anonymous and pseudonymous literary, dramatic, musical or artistic works (other than photographs) where these have been published and unless the identity of the author becomes known.
— however these transitional provisions were largely cancelled by the 1995 Regulations, which in many cases caused lapsed UK copyrights to be revived.
Copyright in the following types of work lasts until 31 December 2039:
- unpublished literary, dramatic and musical works of which the author has died (unpublished in the sense of the proviso to s. 2(3) of the 1956 Act);
- unpublished engravings of which the author has died;
- unpublished photographs taken on or after 1 June 1957;
- unpublished sound recordings made on or after 1 June 1957, unless they are released during the period of copyright;
- films which were neither published nor registered, unless they are released during the period of copyright;
- works of universities and colleges which were protected by perpetual copyright under the Copyright Act 1775 c. 53.
Perpetual copyright - Peter Pan
Perpetual copyright
Perpetual copyright can refer to a copyright without a finite term, or to a copyright whose finite term is perpetually extended. Perpetual copyright in the former sense is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based...
grant of the rights to collect royalties, proposed by Lord Callaghan of Cardiff
James Callaghan
Leonard James Callaghan, Baron Callaghan of Cardiff, KG, PC , was a British Labour politician, who was Prime Minister of the United Kingdom from 1976 to 1979 and Leader of the Labour Party from 1976 to 1980...
, enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan
Peter Pan
Peter Pan is a character created by Scottish novelist and playwright J. M. Barrie . A mischievous boy who can fly and magically refuses to grow up, Peter Pan spends his never-ending childhood adventuring on the small island of Neverland as the leader of his gang the Lost Boys, interacting with...
" whose author, J. M. Barrie
J. M. Barrie
Sir James Matthew Barrie, 1st Baronet, OM was a Scottish author and dramatist, best remembered today as the creator of Peter Pan. The child of a family of small-town weavers, he was educated in Scotland. He moved to London, where he developed a career as a novelist and playwright...
, had gifted his copyright to the hospital in 1929, later confirmed in his will. The amendment was proposed when Peter Pan's copyright first expired on 31 December 1987, 50 years after Barrie's death, which was the copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
at that time. Following EU legislation extending the term to author's life + 70 years, Peter Pan's copyright was revived in 1996 and expired on 31 December 2007 in the UK, where Great Ormond Street Hospital's right to remuneration in perpetuity now prevails.
Fair dealing defences and permitted acts
Chapter III of Part I of the Act provides for a number of situations where copying or use of a work will not be deemed to infringe the copyright, in effect limitations on the rights of copyright holders. The existing common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
defences to copyright infringement, notably fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
and the public interest defence
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
, are not affected (s. 171), although many of the statutory permitted acts would also qualify under one of the common law defences: the defence of statutory authority
Statutory authority
A statutory authority is a body set up by law which is authorised to enforce legislation on behalf of the relevant country or state. They are typically found in countries which are governed by a British style of parliamentary democracy. They are common in the UK, Australia, New Zealand etc but...
is specifically maintained in section 50. This chapter of the Act has been substantially modified, notably by the Copyright and Related Rights Regulations 2003
Copyright and Related Rights Regulations 2003
The Copyright and Related Rights Regulations 2003 transpose Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society,...
No. 2498 transposing the EU Copyright Directive: the description below is of the Act as it received Royal Assent.
Fair dealing defences
The following are also permitted acts (the list is not exhaustive):- fair dealingFair dealing in United Kingdom lawFair dealing in United Kingdom law is a doctrine which provides an exception to United Kingdom copyright law, in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events...
in a work for the purposes of private study or research (s. 29) - Fair dealing in a work with acknowledgment for the purposes of criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30);
- Incidental inclusion of copyright material in another work (s. 31);
- Public reading or recital by a single person with acknowledgment (s. 59);
- Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60);
- Recordings of folksongs for archives (s. 61);
- Photographs, graphic works, films or broadcasts of buildings and sculptures in a public place (s. 62) (see Freedom of panoramaPanoramafreiheitFreedom of panorama, often abbreviated as FOP, is a provision in the copyright laws of various jurisdictions that permits taking photographs or video footage, or creating other images , of buildings and sometimes sculptures and other art which are permanently located in a public place, without...
); - Copying and distribution of copies of an artistic work for the purpose of advertising its sale (s. 63);
- Reconstruction of a building (s. 65)
- Rental of sound recordings, films and computer programs under a scheme which provides for reasonable royalty to the copyright holder (s. 66);
- Playing of sound recordings for the purposes of a non-commercial club or society (s. 67);
- Recording for the purposes of time-shifting (s. 70);
- Free public showing of broadcasts (s. 72);
- Provision of subtitled copies of broadcasts for the handicapped by designated bodies (s. 74);
- Recording of broadcasts for archival purposes (s. 75).
Educational use
In general, copying for educational use (including examination) is permitted so long as it is performed by the person giving or receiving instruction (s. 32) or by the education establishment in the case of a broadcast (s. 35): however, reprographic copying is only permitted within the limit of 1% of the work per three-month period (s. 36). Works may be performed in educational establishments without infringing copyright, provided that no members of the public are present (s. 34): the parents of pupils are considered members of the public unless they have some other connection with the establishment (e.g., by being teachers or governors). Further provisions are contained in secondary legislation.Libraries and archives
Librarians may make and supply single copies of an article or of a reasonable proportion of a literary, artistic or musical work to individuals who request them for the purposes of private study or research (ss. 38–40); copying of the entire work is possible if it is unpublished and the author has not prohibited copying (s.–43). They may also make and supply copies to other libraries (s. 41) and make copies of works in their possession where it is not reasonably possible to purchase further copies (s. 42). The detailed conditions for making copies are contained in secondary legislation, currently the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 No. 1212.Public administration
Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a Royal CommissionRoyal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
or statutory inquiry (ss. 45, 46). The Crown may make copies of works which are submitted to it for official purposes (s. 48). Material which is open to public inspection or on an official register may be copied under certain conditions: this includes material made open to public inspection by the European Patent Office
European Patent Office
The European Patent Office is one of the two organs of the European Patent Organisation , the other being the Administrative Council. The EPO acts as executive body for the Organisation while the Administrative Council acts as its supervisory body as well as, to a limited extent, its legislative...
and by the World Intellectual Property Organisation under the Patent Cooperation Treaty
Patent Cooperation Treaty
The Patent Cooperation Treaty is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states...
, and material held as public records
Public records
Public records are documents or pieces of information that are not considered confidential. For example, in California, when a couple fills out a marriage license application, they have the option of checking the box as to whether the marriage is "confidential" or "Public"...
under the Public Records Act 1958
Public Records Act 1958
The Public Records Act 1958 is an Act of the Parliament of the United Kingdom forming the main legislation governing public records in the United Kingdom....
c. 51 or similar legislation (s. 49).
Moral rights
The Act creates a specific regime of moral rights for the first time in the United Kingdom: previously, an author's moral right had to be enforced through other tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s, e.g. defamation, passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
, malicious falsehood
Malicious falsehood
Malicious falsehood or injurious falsehood is a tort. It is a lie that was uttered with malice, that is, the utterer knew it was false or would cause damage or harm....
. The author's moral rights are:
- the right to be identified as the author or the director, right which has to be "asserted" at the time of publication (ss. 77–79);
- the right to object to derogatory treatment of work (ss. 80–83);
- the right to object to false attribution of work (s. 84);
- the right to privacy of certain photographs and films (s. 85).
The moral rights of an author cannot be transferred to another person (s. 94) and pass to his heirs on his death (s. 95): however, they may be waived by consent (s. 87). The right to object to false attribution of work last for twenty years after a person death, the other moral rights last for the same period as the other copyright rights in the work (s. 86).
Crown and Parliamentary copyrights
The Act simplifies the regime of Crown copyrightCrown copyright
Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown .- Australia :...
, that is the copyright in works of the United Kingdom government, and abolishes the perpetual Crown copyright in unpublished works of the Crown. It also creates the separate concept of Parliamentary copyright
Parliamentary copyright
Parliamentary copyright was first created in the United Kingdom by the Copyright, Designs and Patents Act 1988. Prior to this legislation being passed, what is now covered by Parliamentary copyright was Crown copyright....
for the works of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...
, and applies similar rules to the copyrights of certain international organisations.
Crown copyright last for fifty years after publication, or 125 years after creation for unpublished works (s. 163): however, no unpublished works of the Crown will come into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
until 31 December 2039, that is fifty years after the commencement of section 163. Acts of the United Kingdom and Scottish Parliaments and Church of England Measures are protected by Crown copyright for fifty years from Royal Assent (s. 164). Works of the Parliaments of the United Kingdom and of Scotland, except Bills and Acts, are protected by Parliamentary copyright for fifty years after creation: Bills are protected from the date of their introduction to the date of Royal Assent or of rejection (ss. 165–167, Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676). The works of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
and its specialised agencies and of the Organisation of American States are protected for fifty years after creation (s. 168, Copyright (International Organisations) Order 1989 No. 989).
Enforcement of copyright
Infringement of copyright is actionable by the copyright owner as the infringement of a property right (s. 96) or, in the case of infringement of moral rights, as the tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of breach of statutory duty (s. 103). Damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
will not be awarded against an "innocent" defendant, i.e. one who did not know and had no reason to know that the work was under copyright, but other remedies (e.g. injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
, account of profits
Account of profits
An account of profits is a type of equitable remedy most commonly used in cases of breach of fiduciary duty...
: Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
interdict, accounting and payment of profits) continue to be available (s. 97, see Microsoft v Plato Technology). Orders are available for the delivery up (Scots law: delivery) and disposal of infringing copies (ss. 99, 114): copyright owners may also seize such copies (s. 100). The making, dealing in or use of infringing copies is a criminal offence (s. 107). Copyright owners may ask the HM Revenue and Customs to treat infringing copies as "prohibited goods", in which case they are prohibited from import (s. 111). Section 297 of the Act makes it an offense to fraudulently receive broadcasts for which a payment is required. Section 300 creates the offense of fraudulently using a trademark, inserted as ss. 58A–58D of the Trade Marks Act 1938 c. 22.
Infringement of performers rights
The Copyright and Related Rights Regulations 2003Copyright and Related Rights Regulations 2003
The Copyright and Related Rights Regulations 2003 transpose Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society,...
amended the CDPA to provide an additional right of performers to require consent before making copies of their performances available to the public by electronic transmission.
Secondary infringement
The Act codifies the principle of secondary infringement, that is knowingly enabling or assisting in the infringement of copyright, which had previously been applied at common law (see R v Kyslant). Secondary infringement covers:- importing infringing copies (s. 22);
- possessing or dealing with infringing copies (s. 23);
- providing means for making infringing copies (s. 24);
- permitting the use of premises for infringing performances (s. 25);
- providing apparatus for infringing performances (s. 26).
Criminal offences
Copyright infringement that may be criminal offences under the Copyright, Designs and Patents Act 1988 are the:- Making copies for the purpose of selling or hiring them to others
- Importing infringing copies (except for personal use)
- Offering for sale or hire, publicly displaying or otherwise distributing infringing copies in the course of a business
- Distributing a large enough number of copies to have a noticeable effect on the business of the copyright owner
- Making or possessing equipment for the purposes of making infringing copies in the course of a business
- Publicly performing a work in knowledge that the performance is unauthorised
- Communicating copies or infringing the right to "make available" copies to the public (either in the course of a business, or to an extent prejudicial to the copyright owner)
- Manufacturing commercially, importing for non-personal use, possessing in the course of a business, or distributing to an extent that has a noticeable effect on the business of the copyright holder, a device primarily designed for circumventing a technological copyright protection measure.
The penalties for these copyright infringement offences may include:
- Before a magistrates' Court, the penalties for distributing unauthorised files are a maximum fine of £5,000 and/or six months imprisonment;
- On indictmentIndictmentAn indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
(in the Crown Court) some offences may attract an unlimited fine and up to 10 years imprisonment.
Copyright Tribunal
The Act establishes the Copyright TribunalCopyright Tribunal
The Copyright Tribunal is a tribunal in the United Kingdom which has jurisdiction over some intellectual property disputes under the Copyright, Designs and Patents Act 1988...
as a continuation of the tribunal established under s. 23 of the 1956 Act (s. 145). The Tribunal is empowered (s. 149) to hear and determine proceedings concerning:
- copyright licencing schemes;
- royalties for rental of sound recordings, films or computer programs;
- licences made available as of right under s. 144 (powers of the Monopolies and Mergers Commission under the Fair Trading Act 1973 c. 41);
- the refusal of a performer to give consent under his rights in performances;
- royalties under the perpetual copyright of "Peter PanPeter PanPeter Pan is a character created by Scottish novelist and playwright J. M. Barrie . A mischievous boy who can fly and magically refuses to grow up, Peter Pan spends his never-ending childhood adventuring on the small island of Neverland as the leader of his gang the Lost Boys, interacting with...
" (see below).
An appeal on any point of law lies to the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, or to the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
under Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
.
Design right
Part III of the Act creates a "design right" separate from the registration of designs governed by the Registered Designs Act 1949Registered Designs Act 1949
The Registered Designs , Act, 1949 was an act in the United Kingdom concerning copyright and related rights, industrial designs, patents, protection of undisclosed information. The purpose of the act was to consolidate certain enactments relating to registering designs...
. To qualify, the design must be original (not commonplace in the field in question) and not fall into one of the excluded categories (s. 213(3)):
- principles and methods of construction;
- articles which must connect with or otherwise fit another article so that one or the other may perform their function;
- designs which are dependent on the appearance of another article;
- surface decoration.
The design must be recorded in a document after 1989-08-01 (s. 213(6)): designs recorded or used before that date do not qualify (s. 213(7)).
The design right lasts for fifteen years after the design is recorded in a document, or for ten years if articles have been made available for sale (s. 216).
Designs and typefaces
The copyright in a design document is not infringed by making or using articles to that design, unless the design is an artistic work or a typeface (s. 51). If an artistic work has been exploited with permission for the design by making articles by an industrial process and marketing them, the work may be copied by making or using articles of any description after the end of a period of twenty-five years from the end of the calendar year when such articles were first marketed (s. 52). It is not an infringement of the copyright in a typeface to use it in the ordinary course of printing or to use the material produced by such printing (s. 54).Registered designs
Part IV of the Act contains a certain number of amendments to the Registered Designs Act 1949Registered Designs Act 1949
The Registered Designs , Act, 1949 was an act in the United Kingdom concerning copyright and related rights, industrial designs, patents, protection of undisclosed information. The purpose of the act was to consolidate certain enactments relating to registering designs...
c. 88. The criteria for registration of a design and the duration of the registered design right (ss. 1 & 8 of the 1949 Act) are notably modified. Provisions are also added to allow ministers to take action to protect the public interest in monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
situations (s. 11A of the 1949 Act) and to provide for compensation for Crown use of registered designs (para. 2A to Schedule 1 to the 1949 Act). A consolidated version of the Registered Design poocluded (s. 273, Schedule 4).
Patents and trademarks
Part V of the act provides for the registration of patent agents and trade mark agents and for theprivilege
Privilege (evidence)
An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
of their communications with clients from disclosure in court. Part VI of the act creates a system of patents county court
Patents County Court
In the legal system of Courts of England and Wales, the Patents County Court in London is an alternative venue to the Patents Court of the High Court for bringing legal cases involving certain matters concerning patents, registered designs and, more recently, trade marks, including Community trade...
s for proceedings involving patents which are of a lesser financial implication.
Commencement
There are numerous commencement dates for the different sections of the Act, detailed below. The provisions on copyright, rights in performances and design right came into force on 1 August 1989, while the registration of patent agents and trade mark agents came into force on 13 August 1990.| Date of commencement | Provisions | Authority for commencement |
|---|---|---|
| 15 November 1988 | s. 301 and Schedule 6 paras. 24 & 29 of Schedule 5 |
s. 305(1) |
| 15 January 1989 | ss. 293 & 294 | s. 305(2) |
| 28 July 1989 | ss. 304(4) & (6) | Copyright, Designs and Patents Act 1988 (Commencement No. 4) Order 1989 |
| 1 August 1989 | Parts I–III Parts IV, VI & VII except for provisions mentioned elsewhere Schedules 1–3, 5, 7 & 8 except for provisions below |
Copyright, Designs and Patents Act 1988 (Commencement No. 1) Order 1989 |
| 13 August 1990 | Part V para 21 of Schedule 3 Schedule 4 para. 27 of Schedule 5 paras. 15, 18(2) & 21 of Schedule 7 consequential repeals of Schedule 8 ss. 272, 295, 303(1) & (2) insofar as they relate to the above |
Copyright, Designs and Patents Act 1988 (Commencement No. 5) Order 1990 |
| 7 January 1991 | paras. 1–11, 17–23, 25, 26, 28 & 30 of Schedule 5 consequential repeals in Schedule 8 ss. 295 & 303(2) insofar as they relate to the above |
Copyright, Designs and Patents Act 1988 (Commencement No. 6) Order 1990 |
The Copyright, Designs and Patents Act 1988 (Commencement No. 2) and (Commencement No. 3) Orders 1989 are technical measures to allow the preparation of secondary legislation.
Transposition of European Union directives
The following regulations were made under the European Communities Act 1972European Communities Act 1972
European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...
in order to implement European Union directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
s in UK law.
| Directive | Transposition |
|---|---|
| Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products | Design Right (Semiconductor Topographies) Regulations 1989 No. 1100 |
| Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs | Copyright (Computer Programs) Regulations 1992 No. 3233 |
| Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property | Copyright and Related Rights Regulations 1996 No. 2967 |
| Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights | Duration of Copyright and Rights in Performances Regulations 1995 No. 3297 |
| Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission | Copyright and Related Rights Regulations 1996 No. 2967 |
| Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases | Copyright and Rights in Databases Regulations 1997 No. 3032 |
| Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, often known as the EU copyright directive | Copyright and Related Rights Regulations 2003 Copyright and Related Rights Regulations 2003 The Copyright and Related Rights Regulations 2003 transpose Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society,... No. 2498 |
| Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art | Artist's Resale Right Regulations 2006 No. 346 |
| Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights | Intellectual Property (Enforcement, etc.) Regulations 2006 No. 1028 |
| Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, which replaced the Rental Directive | Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010 No. 2694 |
Also:
- Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445
Other modifying measures
- National Health Service and Community Care Act 1990National Health Service and Community Care Act 1990The National Health Service and Community Care Act 1990 is a piece of legislation which governs health care and social care in the United Kingdom...
c. 19 - Courts and Legal Services Act 1990Courts and Legal Services Act 1990The Courts and Legal Services Act 1990 was an Act of the Parliament of the United Kingdom that reformed the legal profession and Courts of England and Wales...
c. 41 - Broadcasting Act 1990Broadcasting Act 1990The Broadcasting Act 1990 is a law of the British parliament, often regarded by both its supporters and its critics as a quintessential example of Thatcherism. The aim of the Act was to reform the entire structure of British broadcasting; British television, in particular, had earlier been...
c. 42 - Judicial Pensions and Retirement Act 1993Judicial Pensions and Retirement Act 1993The Judicial Pensions and Retirement Act 1993 is an Act of the Parliament of the United Kingdom that strengthened the mandatory retirement provisions previously instituted by the Judicial Pensions Act 1959 for members of the British judiciary....
c. 8 - Charities Act 1993 c. 10
- Trade Marks Act 1994Trade Marks Act 1994The Trade Marks Act 1994 is the law governing trademarks within the United Kingdom and the Isle of Man. It implements EU Directive No. 89/104/EEC which forms the framework for the trade mark laws of all EU member states, and replaced an earlier law, the Trade Marks Act 1938...
c. 26 - Criminal Justice and Public Order Act 1994Criminal Justice and Public Order Act 1994The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
c. 33 - Broadcasting Act 1996 c. 55
- Parliamentary Copyright (Scottish Parliament) Order 1999 No. 676
- Conditional Access (Unauthorised Decoders) Regulations 2000 No. 1175
- Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002 c. 25
- Copyright (Visually Impaired Persons) Act 2002 c. 33
- Legal Depost Libraries Act 2003 c. 28
- Re-use of Public Sector Information Regulations 2005 No. 1515
- Performances (Moral Rights, etc.) Regulations 2006 No. 18