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Copyright Law Updates

Tim Johnson


United Kingdom

There are a number of recent changes to the Copyright Designs and Patents Act 1988 that will be of interest to readers.

Artistic Works

Since 28 July 2016, all types of artistic works (including artistic craftsmanship) now have copyright protection for the life of the creator plus 70 years, rather than the 25 years it previously had under section 52 of the Copyright Designs and Patents Act 1988 (CDPA). The depletion period for existing stock produced or acquired under a contract entered into before the publication of the consultation (28 October 2015) will end on 28 January 2017.

Whilst this repeal does not materially affect the steps that should be taken when including copyright protected art in any production (i.e. by obtaining a license from the rights holder), it will likely sweep a greater number of artistic works that are protected by copyright. If you are unsure about whether you need any clearance to include a particular piece of art in any production, please do not hesitate to contact us here at Fieldfisher.

Retransmission of content

The Digital Economy Bill was presented to the Government in July. The main area of interest in this extensive bill is that there is a proposal to repeal section 73 of the CDPA. 

Section 73 provides that copyright in a Public Service Broadcast (PSB) that is retransmitted via cable is not infringed where the broadcast is receivable in the area in which it is retransmitted. In effect, this means that cable platforms are not currently required to provide copyright / retransmission fees in relation to the core PSB channels. The section 73 defence was used by the re-transmitting party in the TV Catchup litigation.

The provision has since been declared incompatible with EU law. It is clearly outdated as it was relevant in an analogue age where the objective was to offer PSB services throughout the UK, but PSBs now lose revenue when internet-based companies exploit their content without paying them a copyright fee.  Virgin Media were concerned that the repeal would result in PSBs seeking retransmission fees from them, which would in turn be passed onto cable customers in price rises, but the Government are keen to ensure a zero net fee position between the commercial broadcasters and Virgin Media. The results of the government consultation were that section 73 should be repealed and MPs are now considering the Bill at Committee stage (which is likely receive Royal Assent in Spring 2017 or later). Concurrently, a technical consultation has just recently closed, which invited comments on the extent of the rights market and transitional arrangements.

The repeal of section 73 is particularly relevant to rights holders whose work is retransmitted in a PSB channel, and who are likely to be able to claim fees in this regard.  Please contact us here at Fieldfisher if you are a rights holder who may benefit from this repeal.

Criminal Sanctions

It is also worth noting that under the Digital Economy Bill, criminal penalties for online copyright infringement will be raised to include imprisonment for up to ten years (currently it is two years). This brings it into line with current penalties for infringement of physical goods.

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