Changes to copyright law

A number of changes to copyright law took effect on 31 October 2003, with the coming into force of the Copyright and Related Rights Regulations (implementing a 2001 EC Directive).

A key change is to narrow “fair dealing” for the purposes of research.

This is now only permitted where the research is for a non-commercial purpose and where a “sufficient acknowledgement” (identifying the author of the work copied) is given.

Any copying done while carrying out research for a commercial purpose now needs a licence. Many journalists will be able to continue to rely on fair dealing for the purpose of reporting current events, but copying done to research non-news items (lifestyle and opinion pieces) now needs a licence.

Fair dealing for the purposes of criticism and review is now only permitted where the work has been “made available to the public” but, contrary to the view expressed by some commentators, this is not radical as it reflects existing case law.

Copyright owners are given rights over wire and wireless transmissions of their works, notably over the internet. Putting works on websites will either be “broadcasts” (the concept of cable programmes is abolished) or “communications to the public”, requiring the copyright owner’s permission. While not a significant change, concern has been expressed over the equivalent criminal provisions. Anyone putting a work on a website in the course of a business commits an offence where he knows or has reason to believe that he is infringing copyright. This certainly underlines the need to secure electronic publishing rights from contributors, but most publishers should have such provisions in place already.

A range of new remedies (and offences) cover the removal or bypassing of electronic copy-protection, for example unauthorised decryption or hacking round passwordprotection.

Remedies are also introduced to cover the removal or modification of rights management information.

Finally, non-exclusive licensees can now take action against infringers of the licensed copyright, where their licence so provides.

Newspaper publishers should review the terms of their agreements with agencies and contributors to ensure that these enforcement rights are secured where needed.

Peter Wienand is a partner in the intellectual property team at Farrer & Co

by Peter Wienand

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