A subtle but significant change to the UK's copyright laws?

The Copyright, Designs and Patents Act 1988 will be amended in several important ways later this year. The purpose of this short article is to focus on one of the key changes that may affect journalists who refer to copyright works for research purposes.

The impending changes to the act are prompted by the need to implement the EU Directive on Copyright and Related Rights in the Information Society. The directive should have been implemented by all EU member states on 31 December 2003. However, following a consultation by the UK’s Patent Office concerning the extent of the amendments to the act, it is now likely that the UK will implement the directive by 31 March 2003.

Chapter III of the act sets out the “permitted acts” in relation to copyright works. Effectively, these are the exceptions that allow people to use copyright works in circumstances that would otherwise be an infringement of copyright. Currently, reproducing a copyright work for the purposes of “research or private study” does not infringe copyright in a work provided the reproduction can be regarded as “fair dealing” (I shall call this the research exception).

It is anticipated that the implementation of the directive will narrow the extent of the research exception by requiring that the research is carried out for a non-commercial purpose. The effect of narrowing the research exception in this way is that where copyright works are reproduced for commercial purposes, the copier will need to have a licence to permit him or her to make these copies (subject to any other permitted act).

Understandably, but not helpfully, the legislators have not defined a “non-commercial purpose”. The UK Patent Office’s consultation indicated that it is up to the European Court of Justice to define this term. In the interim, it will be assessed on a case-by-case basis and it is the purpose of the research that is critical.

Journalists and those working for them in researching stories may have to bear this narrowing of the research exception in mind. It is submitted that researching a story to be published in a newspaper or magazine is likely to be regarded as a commercial purpose and so any copyright works that are reproduced during the course of the research will fall outside of the research exception.

There is a separate exception that exists in the act allowing copyright works to be reproduced for the purposes of reporting current events, but this may not always help the investigative journalist given its qualification.

Investigative journalists are likely to reproduce copyright works (literary or artistic) in researching stories. Without the benefit of the “reporting current events” exception, they should consider carefully the material they are making copies of because to do so without a licence from the copyright owner – or from either the NLA or CLA (if appropriate) – is likely to be in breach of copyright.

Paul Jones is a solicitor with Farrer &Co

by Paul Jones

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