This essay will explain the basis of copyright law in the UK, and how it protects authors and performers. The contention that all types of work and performances are protected will be considered and an evaluation will be made as to the accuracy of this statement. The basis of the major exceptions to copyright law in the UK will be explained and evaluated. Then there will be analysis and discussion as to whether or not the benefits enjoyed by users may be described as deriving from only a few narrow exceptions.
Copyright – What is it?
Copyright law is “…..the exclusive right to do, and to authorise others to do, in the United Kingdom, certain acts in relation to literary, dramatic and musical works, artistic works, sound recordings, films, broadcasts and published editions of works. The acts concerned vary according to the subject matter; in general, the existence of copyright protects the maker of a work from the appropriation of his labours by another. For this reason it is said to be a negative right…”.
It is the case that all types of works and performances are potentially protected but, in order to be protected by copyright they must qualify are material that may be protected by copyright.
The most updated legislation regarding copyright in the UK is contained in the The Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003, and this legislation reflects changes that have been made as a result of EU Directives and various international agreements, such as the TRIPS agreement.
Property rights may generally be considered to derive from some connection between the owner of the property and the user of the property. There is no such connection discernable where the user of the property does so through reliance upon an exception to the rules of copyright infringement. Obviously there may still be utility in allowing users the freedom to do this, and there may be an argument that there is a public interest in allowing such access e.g. as is the justification for allowing more flexible access to copyrighted material by disabled users and educational institutions.
The jurisprudential approach to and justifications for certain formulations of property rights may be traced back to ideological underpinnings. It may be argued that a purist approach to property rights that would prohibit of the access to copyrighted material that is currently allowed is aligned with the classical liberal, free market capitalism approach to rights. The view that currently predominates and which is reflected in the current law regarding copyright in the UK may be seen as being aligned to modern constructions of liberalism that reflect a mixture of free market capitalist view and rights based ideologies. Thus the idea that users have rights to access copyrighted material where there is a public interest in allowing them to do so may be seen as a reflection of the prevailing political ideology adopted by New Labour, and in existence in varied constructions prior to the advent of New Labour.
There are a variety of exceptions to copyright law, and the main categories of exceptions are those for visually impaired people, “communications to the public right”, temporary copies, fair dealing both for private study as well as for criticism and review, academic instruction, librarian copying, broadcasting within educational institutions and time-shift recordings.
Visually impaired people
People who have visual impairments benefit from an exception to copyright law, which has been further refined by the Copyright and Related Rights Regulations 2003. There are two ways to take advantage of this exception. Firstly a visually impaired person may make a copy of copyrighted material for their own personal use of that material in an accessible form (such as for example in large text).
The second category within this exception may only be taken advantage of by an educational institution, or a not for profit body and such a body may make multiple copies of copyrighted material in order to provide accessible copies of the material to visually impaired people , however the author must remain named, the distribution of the work must not interfere with legitimate exploitation of the work.
Making temporary copies
This is where a temporary copy of copyrighted material is made as a result of a technological process. An example of this is where a computer makes a copy of copyrighted material that is retained in a computer cache and it must be remembered that while this exception applies to literary, musical and artistic works, as well as sound recordings and films, it does not apply to databases and computer programmes.
Fair dealing – private study
This exception permits copying of copyrighted material, without the permission of the author for the purposes of private study. The copy must never to related either directly or indirectly to a commercial purpose. Further there must be an adequate acknowledgement of the authorship of the piece.
Fair dealing –criticism/review
This exception permits copying of copyrighted material without the prior permission of the author where this is done solely for the purpose of reviewing the work. For this exception to operate the work must have already been made available to the public, and the authorship of the work must also be sufficiently acknowledged. The changes made to this exception to copyright laws have implications for those who seek to review unpublished works, such as those held in archives or libraries.
In procedural terms under the Civil Procedure Rules in actions for interim injunctions in cases involving fair dealing defences, where there is a reasonable defence in fair dealing in response to a copyright infringement action, it has been held that defendants to such actions may not be restrained by interim injunctions, as a matter of public interest and as a way of reflecting the ECHR jurisprudence embodied by Article 10 of the ECHR.
Communication to the public right
This is where the copyright owner gives permission for a third party to make copyrighted material available to a particular group of people. An example of this is the operation of an intranet.
It is permissible to make a copy of copyrighted material, to enable a person to view material at a more convenient time, but changes to the law now require that viewing of such material may only take place within domestic premises.
This exception permits a person to make a copy of copyrighted material without permission where that copy is made for the purposes of providing examination materials, for example for marking or examination purposes.
Broadcasting within educational institutions
An exception applies to the recording of copyrighted material that has been broadcast, for the purposes of allowing it to be viewed again within an educational institution.
An exception applies to copyright law where library staff are permitted to make copies of copyrighted material without the prior permission of the author where this copy is made for users of the library, and it is not used for commercial purposes.
The construction of the Civil Procedure Rules may be said work in tandem with the body of law regulating copyright in the UK, and further it may be said that these rules and their construction compliment and shape this body of law and the operation of the exceptions to it.
A significant piece of legislation that is relevant procedurally is section 72 of the Supreme Court Act 1981 which removes the privilege of self incrimination in relation to intellectual property disputes, but at the same time ensures that no criminal prosecutions may be brought against individuals as a result of what they may be required to disclose as a result of this legislation.
Users – do they only benefit from a few very narrow exceptions?
It may be argued that users do only benefit from a very few very narrow exceptions. These exceptions appear in large part to compensate for people who have disabilities that prevent them from viewing work in what may be for them an inaccessible form and to provide some flexibility for educational institutions to provide education without being forced into strict compliance with copyright laws.
There is no reason why this should not be so i.e. no reason why users should only benefit from a very few narrow exceptions. Copyright law has a purpose, and this derives from the idea that any market value arising from someone’s hard work should be capable of being preserved. Copyright protects original work carried out by individuals, or bodies and it is appropriate that there should be a mechanism whereby these rights should be protected.
It may further be argued that the laws protecting copyrighted material have become even more restrictive in protecting copyright and preventing copyright infringement. As legislation in the area of copyright law has become more outdated, various means have evolved which allowed third parties to circumvent their responsibilities towards the owners of copyrighted material. New legislation in the field of copyright law has aimed to address this. This legislation has extended the definition of copyright infringement.
It is now an infringement of copyright to purposely disable, or ignore technical devices designed to ensure that copyrighted material is protected from unlawful reproduction. An example of this may be where software on a computer is capable of being loaded onto 3 machines by one user and a third party attempts to load the software onto another user’s machine, even if they have the required password. In this case this would be a clear example of copyright infringement.
The new legislation has also created an array of criminal offences that further place limitation upon a users exercise of their rights to take advantage of exceptions to UK copyright law.
It is now a criminal offence to distribute, or facilitate communication of copyrighted material to the public in the course of the operation of a business, or via any other means that causes prejudice to the copyrighted owner. Under the new legislation it is a specific criminal offence to infringe a performers’ right to have rights in their own performances protected.
While ostensibly it appears that some of these measures have been put in place to target activities such as file-sharing, it is the case that the measures indirectly place further limitations upon the position of a user taking advantage of exceptions to copyright laws. However it has been argued throughout the essay that this is how things should be.
In conclusion it may be argued that copyright law in the UK protects the position of the owner of copyrighted material extensively. It may further be argued that the extent of these protections has increased in recent years. This state of affairs creates a situation where users of such material who rely upon exceptions to copyright rules to access such material have seen their freedom to do so curbed. It has been argued that there is a public interest in having this balance between the rights of users to access material, while at the same time having appropriate protection for the intellectual property rights of individuals.
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